The Employment Tribunal in the ASDA stores equal pay litigation has allowed female claimants in retail stores to compare their pay with men in distribution centres. This means the claimants have overcome an important hurdle in their claim for equal pay.
This case concerns around 7,000 claimants working in the retail division of ASDA and has potentially significant implications for the retail sector. The claimants assert that they do work of equal value with workers in ASDA’s distribution division, who are predominantly male.
ASDA tried to argue that because the stores and distribution centres were in different locations, with different pay arrangements, female retail workers could not compare their pay with the men in the distribution centres. However, the Tribunal found that there were common terms and conditions across the different locations and therefore the claims can proceed.
There are still two key battles in this ongoing case. The first is that the claimants must show they carry out work of equal value to their males comparators in the distribution centres. If they succeed in that argument then ASDA will still have the opportunity to show that it has a “material factor defence” which could justify the pay disparity.
In a judgment handed down on Friday 14 October 2016, Employment Judge Ryan decided that that the predominantly female claimants were entitled to compare themselves to predominantly male distribution staff.
In an equal pay claim, a claimant must show that their comparator works in the same “establishment” meaning the same place of work. However, they can compare themselves with someone at a different site if they can show that there are common terms and conditions across both sites.
In this case, the Employment Judge found that there was common terms and conditions between the retail and distribution workers despite their being some clear differences and a complex history as to how the sites had been operated (which had included third parties running them) and the fact that there had been union recognition for distribution but not for retail.
Therefore the case will now proceed so that the Tribunal can determine whether the retail workers were carrying out work of “equal value” to their male comparators in the distribution centres. If they succeed in that argument then ASDA may yet be able to show that the complex historical arrangements in determining pay amount to a “material factor” defence which is not tainted by sex. If so this would defeat the equal pay claims.
Asda had initially tried to stop the claims from proceeding in the employment tribunal, arguing that they should be heard in the High Court due to their complexity. However, the Court of Appeal back in June this year ruled that the employment tribunal is the appropriate place for the women’s claims to proceed and that employment judges were more than capable of dealing with the case.
The claimant’s lawyers have stated that the claims against Asda could see workers recovering over £100 million going back to 2002 and may now be followed by new claims from workers awaiting this judgment. There are also around 400 claims being brought on the same basis by workers at Sainsburys.
Graham Irons comments "This case has potentially significant implications for the retail sector who will be watching it closely. ASDA are highly likely to appeal the Tribunal’s decision so this might not be the final word on the issue of whether the retail workers can compare themselves with their colleagues in the distribution centres".
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