Equal pay claims – Asda workers can now proceed, says Court of Appeal

In the long-running equal pay dispute with Asda, the Court of Appeal has ruled that store workers can now compare themselves with warehouse workers.

Lord Justice Underhill ruled that regarding both distribution and retail workers Asda applied common terms and conditions. Because of this ruling the workers who have filed for claims against the supermarket giant can now go ahead with the next stage of their claims. The supermarket has also been denied application to appeal to the Supreme Court.

This ruling comes after a three-day hearing covering the claims in October 2018. The workers, made up of mostly women and totalling in the tens of thousands have already won two rulings in the employment tribunal as well as the employment appeal tribunal.

The claimants argued that because the work is of equal value, they should be paid equal to the staff who worked in the distribution centres.

The ruling may be seen as a green light to many thousands of other equal pay claims arising from other supermarkets such as Tesco’s, Morrisons and Sainsbury’s. The claims number around 3,000 and are all represented by the same law firm of Leigh Day.

An estimate from Leigh Day about the total value of the claims against the big fur supermarkets is in the region of £8 billion, assuming all 500,000 eligible staff claim and win.

Tesco has had the largest claim made against them, with 8,000 workers having joined the Tesco Action group. This is a legal campaign led by the law firm of Harcus Sinclair.

Like the claim against Asda, the group claims that most shop floor staff are women and paid up to £3 less than the predominantly male workforce who work in the warehouse and distribution centre.

The judgement concerns the first stage of the claims process. It means that the legal claims against Asda will be assessed. Several objective criteria will be used to see if the roles are of equal value.

A spokesperson from Leigh Day’s employment team, Linda Wong stated that this is a major victory against Asda. It is hoped that instead of spending large sums of money thwarting attempts to pay staff what they are worth, the supermarkets pay staff fairly. It is worth remembering that the staff who work in the supermarkets are also their customers.

Felicity Staff, employment lawyer at Taylor Wessing, commented that while Asda workers may have won the battle, they war was far from over.

The staff now needed to deal with the following two stages of their claims in the employment tribunals. These are firstly whether the shop worker and the distribution centre are of equal value in their roles, and secondly whether-other than sexual discrimination- there is any reason for not paying the two roles equally.

Ms Staff went on to say that those two questions posed a particularly complex balancing exercise for the tribunals and this was the reason for the claim process taking so long.

The decision in finding shop floor and distribution centre roles comparable might be carried over into equal pay claims spilling over into the private sector. This could happen in situations such as fashion retail staff versus manufacturing warehouse personal, and possibly restaurant wait staff versus kitchen staff.

A pupil barrister at Outer Temple Chambers, Alexandra Sidossis stated that employers will have a hard time arguing that they did not need to pay workers equally at different sites, with different operating regimes. The question would not be between the difference of the working terms at the sites, rather how different the term would be, if (however unlikely it may be in practice) the workers were transplanted to do their jobs at the other site.

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