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.