Asda awaits latest judgment in equal pay case

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An appeals court hearing concludes today in another episode of the long-running Asda supermarket equal pay case.

The three-day hearing comes in the wake of judgments in favour of the mostly female shop workers  over whether basis for comparison of their roles with those of the predominantly male workers at the firm’s distribution centres.

Leigh Day, which is representing the shop workers, says there are more than 15,000 claimants. It is thought that up to a third of claimants are men.

This week’s hearing investigated the extent to which the shop floor and distribution roles were comparable. Asda is appealing two previous rulings against it – by the employment tribunal in October 2016 and the EAT in August last year – despite all 10 grounds of its appeal being rejected.

Lauren Lougheed, lead lawyer for the claimants against Asda, said: “We are ready to fight once again for our ever-increasing group of supermarket clients who rightly demand equal pay for doing a job of equal worth to Asda.

“We believe Asda are dragging their heels in this case and preventing our clients from getting fair pay and are denying shop floor workers their rights by appealing the two previous decisions against them, forcing them to go through yet another hearing when we have clearly shown that the roles on the shop floor and those in the distribution centres can be compared and should therefore be paid equally.”

It is likely that there will be hearings on the other two stages of the case too. These are:

  • If the roles are comparable, are they of equal value? (likely to be heard by employment tribunal in May 2019)
  • If they are of equal value, is there a reason other than sex discrimination that means the roles should not be paid equally?

Whatever the final outcome, the implications for UK businesses, not just in retail, will be far reaching” – Asda

A judgment from the Court of Appeal for the stage one hearing is likely to be reserved until early in the new year, with the timetable for further hearings to be set out in November. The final outcome of the case could be years away as Asda may be able to appeal to the Supreme Court and the European Court of Justice, if the UK were still in the EU at that point.

An Asda spokesperson acknowledged the significance of the case: “This equal value case is extremely complex and without precedent in the private sector, so it is vital the issues are given the legal scrutiny they deserve. Whatever the final outcome, the implications for UK businesses, not just in retail, will be far reaching.

“Leigh Day have also appealed points they have lost. None of the appeals have caused any delay to the case, which continues to progress through the tribunal, but it will still take many years to conclude.

“Our hourly rates of pay in stores are the same for female and male colleagues and this is equally true in our depots. Pay rates in stores differ from pay rates in distribution centres because the demands of the jobs in stores and the jobs in distribution centre are very different; they operate in different market sectors and we pay the market rate in those sectors regardless of gender. ”

Leigh Day is also representing shop-floor staff from Sainsbury’s, Tesco and Morrisons supermarkets in similar cases, with the Asda case the most advanced on the legal route. The total pay owed to eligible staff could exceed £8bn if all four supermarkets were to lose their cases.

At the Court of Appeal on 23-25 October, the supermarket will challenge the claims on a technicality. Rule 9 of the employment tribunal rules says that more than one individual can be put on a claim form if the cases are based on the “same set of facts” – Asda disagrees that the claims presented by Leigh Day are based on the same set of facts, and is set to ask the court to strike the claims out.

20 Responses to Asda awaits latest judgment in equal pay case

  1. Avatar
    unknown 13 Oct 2018 at 12:23 am #

    would there be an update on the verdict of this case, as I need to know how Employment Law has had an impact on ASDA, and if there has been a change to the equal pay or is it still occurring in the same direction. also if you could say how this had an impact on the business locally, nationally, and globally. thank you

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    SIMON 15 Oct 2018 at 5:42 pm #

    Asda refuses to just come out and say the reason it pays distribution staff more is because it has more favorable taxation for distribution depots. Still, a company that made £970M profit last year and paid only £10m tax to the UK treasury, really needs to be paying its staff better.

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    .......... 20 Dec 2018 at 1:55 pm #

    The reason for extra pay in depots is danger money.We are worked harder than shop workers as we are out of public view.Depot workers are expected to forego safe systems of working in order to maximise profits,even more so now that the extra above planned profits will have to be found to pay for all this equal pay claim.

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      A Misfit 2 Jan 2019 at 1:04 pm #

      “We are worked harder than shop workers” As an ex shop worker who covered warehouse on job rotation I completely agree. Shop floor was much more enjoyable and easier job.

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        S collins 10 Jan 2019 at 11:08 pm #

        I work nights and it is very demanding and full on work from start to finish the biggest work load is nights unloading pallets & sorting delivery before replenishment

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      Mia 29 Jan 2019 at 3:57 pm #

      I agree that not all store workers should get the equal pay as I believe they do not do the same work, however having worked both in the depots and the stores on a nightshift basis for over 18 years I can confirm that the night shift store workers do far more work than the depot.

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      Dave Ballantyne 9 Feb 2019 at 6:30 am #

      so are shop staff, I worked on produce at an asda store and i was often put in position where I had to forego safety systems at risk to myself simply in the name of profit and doing it for minimum wage. I in no way refute what you are saying but my back and shoulders were wrecked when i left asda I’ve had to have physiotherapy to partly repair shoulder injuries that were restricting my movement and making it near impossible to sleep comfortably, Why shouldn’t i have been on equal amount of pay?

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    A Misfit 2 Jan 2019 at 1:01 pm #

    Having worked in a very well known store these jobs require completely different skills therefore different salaries are applicable. Warehouse workers work unsociable hours. Warehouse workers had forklift skills and unpleasant conditions due to cold with back door open. The shop floor environment where I chose to work as often as I could was warm and stacking shelves and assisting customers was a much easier role. Hardly surprising it would pay a little less. When I worked in the warehouse it was a 5.30 start as opposed to 9am when on the floor. The only unpleasant part of being on the floor was working in frozen but still easier than the warehouse. Taylor said if a job is hard and unpleasant it would be more difficult to fill so a higher salary was paid to compensate. If this were to go against the supermarkets they will find it much more difficult to fill warehouse roles as they will transfer to the store. Why? It would be the same pay for an easier less back breaking job. Having done both I know which I enjoyed more, being on the floor.

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      Ks 20 Jan 2019 at 3:49 pm #

      What about the homeshopping colleagues ,the service crew that sorts out the deliveries in the cold,we have no heating,the doors are mostly open or blow open in the wind,we start at 4.30 in the morning, work in chillers and freezers for the same rate has shop floor colleagues, delivery drivers receive star points for on time deliveries,service crew are expected to work in the cold,service click and collect shopping in the rain and cold,if anything homeshopping service crew should get extra

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      Dave Ballantyne 9 Feb 2019 at 6:43 am #

      I worked till 10pm, four evenings a week including Fri and Sat for five years I had to use a lot of annual leave just to be able to socialize once every so often at a weekend, meaning i never really got a proper break/holiday from work. When I approached personnel several times over the last 3 years of 5 and after Occupational health appointments, when i developed high blood pressure and diabetes and explained that the late shifts and stress they were causing could literally cause me to have a heart attack due to my blood pressure issues and trying to get a more fair division of the late shifts, I was given no help or a change of hours. I worked on a produce department which was right by the entrance doors to the store, in winter it was freezing on the shop floor and colder in the back because the warehouse doors were also open, top that with spending my whole shift in and out out of chillers for 8 hrs and for minimum wage which meant If i hadn’t been living with my partner I would have been unable to afford to live on my own so I honestly feel that this claim is justified.

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    SpursF1 3 Jan 2019 at 5:34 pm #

    Do not agree with you at all! I work nights for a well-known supermarket over 6yrs now. I cover warehouse and shop floor, both jobs are very demanding. I have worked days in various positions as well, you was fortunate that you started your day shift at 9 am… i cannot see why a shop floor colleague is not on the same pay as distribution. We work in a fast paced environment and there is a lot of pressure to get the job done, what is the difference between stacking a pallet in the depot to unloading it on the shop floor? Considering some pallets are 7ft tall and very badly stacked several pallets have totally collapsed on the shop floor, stacking by depot colleagues clearly a breach of health and safety regulations, makes shop floor a dangerous environment to work in, equal pay for equal colleagues simple as that.

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      Rosemary Self 4 Feb 2019 at 6:16 pm #

      I totally agree with what you said. I worked on nights for over 20 years until they made me redundant last March. The work was demanding to say the least. I worked a nine-hour shift starting at 9pm. I started my shift working in a cold warehouse breaking down anything up to a dozen pallets or more with two other colleagues. I often had to pull loaded pallets on to the shop floor. All this before I started work filling the shelves and having to work 2 aisles. I was expected to finish working my delivery and face up both aisles sometimes in less than 6 hours and often with as many as 10 or more pallets. Myself and other colleagues worked our socks off with barely a minute to go to the ladies. Shop floor workers during the day have an easier time but on nights we more than worked as hard as any warehouse employee.

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    Mike 7 Jan 2019 at 12:38 am #

    What about Home Shopping Delivery Drivers? I worked over 11 years on minimum wage (old contract). Drivers constantly asked to TRAIN new drivers (during our normal working shift as staff turnover is diabolical) who earn more than me and also Agency Drivers who earn about £1.50p an hour more as well. New starters use to be on 50p an hour less but the minimum wage caught up on ASDA’s 2% yearly pay increase. Thought that 50p was a training allowance but c’est la vie. Also, not sure on this, but when i first joined ASDA was there a training allowance incorporated into our pay (let me know). Seems it does not exist. Want us drivers to work anywhere in store but can’t make store workers train for delivery driving (voluntary) and not paid the market rate, i.e. can’t retain drivers because all the other major supermarkets pay a much better hourly rate. The only reason I work there is I don’t live far from the store, so there’s no travelling costs.

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      C 8 Jan 2019 at 11:52 am #

      I agree with you Mike. I have been a Home Shopping Driver for 4 years and I have never had a job where the drivers are treated so terribly and paid so low. We are regularly asked to work double shifts which is illegal under UK domestic driver rules and the management don’t listen to any of it because it isn’t enforced. If I started my shift at 8am and crashed into a bus while heading back to the shop at 9.30pm, the police would have me over a barrel but Asda don’t want to hear about it! During the meetings about the new contracts, the store manager told myself and another driver that “higher wages are something we would like to give the drivers because of the skills and risk involved…”. He then turned to the girls from the shop floor and blurted out “… not that you girls aren’t skilled!”. What about the drivers who are based at the big Home Shopping Centres? Do they get paid shop rates or distribution centre/warehouse rates? I think that drivers are the key to winning this case.

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    phillip 7 Jan 2019 at 9:47 am #

    What a load of rubbish. Depot workers do not work harder than store workers, who are mostly women, it’s a very similar job in most areas. In fact depot jobs are less physical as the stores have not got the ride-on pick ppts that depots use. I was a section leader in a store for many years, and from speaking daily with drivers the roles are very similar. My role was extremely physical unloading on a mobile scissor lift unloading chilled wagon on my own with pallets of produce dollies, chilled cages and frozen with each cage dolly dragged 100 metres each way to back ups, pick label checked against manifest and than loaded with reverse logistics, in the wind and rain and snow at times, I WOULD HAVE SWAPPED ROLES WITH ANY DEPOT COLLEAGE.
    Depot colleagues also have different pay options for bank holidays , STORE colleagues don.t
    Depot colleagues have canteen hot food facilities. Store colleagues don’t have choice of a cooked hot meal unless they bring it in themselves.
    I accept manual work is hard work but dealing with customers, legal compliance, environmental external audits, test purchase, age restrictions and various other tasks that shop floor workers are asked to perform are equally hard work. This is not about who does the most, but about how the roles are of equal value to the company, not just ASDA, any business.

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    Mrs Marshall 12 Jan 2019 at 10:36 pm #

    Please also remember the staff who work ALONE in the petrol kiosk! The kiosk I work is just the one. We regularly work ‘double ‘ shifts (7hours) without a break because no one up store is trained to take us off!! We suffer verbal abuse from customers, threats with drive offs, travellers giving us B.S!!. We handle large amounts of money alone!! Cold environment etc… I always tell people I work in the ‘forgotten department’ !!

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    Rockin Rob 31 Jan 2019 at 12:48 pm #

    It appears that the supermarkets have been overpaying the distribution centre staff for years. If they can easily get all the staff they need for store work at a lower rate then they should be able to do the same for distribution centres.

    If this case actually has merit then the shop staff arent due a big payout, the distribution centre staff are due a pay cut. Lets see how many of them stick around if that happens, then we will truly see whether there was a good reason for paying them more than shop staff.

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    Bd K 10 Feb 2019 at 1:27 pm #

    I can’t wait to see warehouse workers transfer to stores and have to deal with:

    • Replen from the same delivery warehouse have been paid more to load then have to put the others away essentially picking the same products up 3 or 4 times.
    • Having to cover tills during busy periods while still carrying out your replen duties.
    • Dealing with customer enquiries which often have nothing to do with the department you work on or indeed your role.
    • Shop-based warehouse duties which are essentially as heavy and cold as standard warehouse duties.
    • Security issues such as violent and abusive customers as well as theft/ shrink management.
    • Managing waste/ inventory issues.
    • Understanding pricing and ticketing issues and knowing how to deal with them.
    • Shop floor is not only about putting beans on shelves.
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    Richard England 4 Apr 2019 at 4:12 pm #

    This is an interesting case.

    I wonder if it could spawn others?

    For instance school caretakers (mostly men) are invariably paid less than school teacher (mostly women) using the same arguments employed to demonstrate ‘roles on the shop floor and those in the distribution centres can be compared and should therefore be paid equally’ in the Asda case.

    Likewise, could NHS hospital porters (mostly men) claim that they should be paid the same as nurses (mostly women) employing the same logic?

    The ‘complexity’ argument appears to have been dismissed in the Asda case. So pressing buttons on a till is counted as equivalent to driving and operating a forklift truck. Likewise changing a bedpan (nurse) could be demonstrated as being the equivalent of wheeling a patient to surgery (porter).

    Sound like lots of possibilities and opportunities for further cases!

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    x 8 Apr 2019 at 3:54 pm #

    Your complexity argument is a comment that I’ve heard before from those who work in depots who say that they work harder than those in stores. AGAIN it’s not about who works the hardest it’s about how your role is of equal value. Pressing buttons on a till is a skill same as driving a fork lift. The only difference between driving a forklift in a store to a depot is it’s not rewarded as a skill in stores – in depots it is.

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