Equal pay: what does the landmark Asda case now mean for employers?

By Richard Whalley, Partner and Head of Employment

The recent landmark ruling by the Supreme Court in support of thousands of ASDA supermarket workers is a stark reminder for businesses how different roles can attract claims of equal pay.

For background, a recent court ruling upheld an earlier court ruling that lower-paid shop staff – who are mostly women – can compare themselves with higher paid warehouse workers, who are mostly men.

While the ruling doesn’t mean that the 44,000 claimants have won their case, it does mean that they are now free to take further action.

How are equal pay claims decided?

This particular case – which started in 2016 with just 21 claimants – overcame many legal challenges before making its way to the Supreme Court, where the judges chose to uphold the decisions of the Employment Tribunal and the Court of Appeal judges.

Since the Equal Pay Act 1970, male and female workers have been entitled to equal pay whether in the same roles or in different roles with equal value and skill.

There are three stages to an equal pay action:

1. Are the jobs comparable?
2. Are the jobs of equal value?
3. Is there a reason why the roles should not be paid equally?

In ASDA’s case, the Supreme Court’s ruling focused on the first stage. It was the view of the courts that the roles of both retail and distribution had the same common terms and conditions applied and that the roles of both groups were comparable with one another whether or not they were located at the same premises as each other.

As the court ruled that the roles are comparable, the claimants (ASDA) will now have to prove that the roles of shop floor workers and distribution workers are of equal value, and that the only reason that they were paid less than their male counterparts was due to their gender.

What does this result mean for employers?

This result means that employers cannot avoid equal pay obligations if male and female dominated roles are based at different locations. I’m sure the ruling will be of particular interest to others in the retail industry also currently defending equal pay claims including, Sainsbury’s, Tesco, Morrison’s and Next.

Equal pay isn’t a new area of employment law but has more recently become an incredibly damaging reputational threat to businesses, and an area of law not to get on the wrong side of.  It’s not only costly in legal fees and but also in the court of public opinion.

If you’re looking for advice or guidance on issues relating to equal pay, or other areas employment law, please contact me directly on Richard.whalley@primaslaw.co.uk