Court of Appeal: Asda workers can proceed with equal pay claims

The Court of Appeal has ruled that Asda store workers can compare themselves to warehouse workers in their long-running equal pay dispute with the supermarket giant.

In his judgment, Lord Justice Underhill ruled that for both retail workers and distribution workers “Asda applied common terms and conditions wherever they work”. This means that the workers who have filed claims against the supermarket can now proceed to the next stage of their claims.

Asda has also been refused application to appeal to the Supreme Court. The judgment follows a three-day hearing on the claims in October 2018.

Tens of thousands of mostly female store workers have already won two rulings in the employment tribunal and the employment appeal tribunal.

The women argued that as shop floor workers they should be paid equally to the employees in Asda’s distribution centres because this is work of equal value.

Today’s ruling could give the green light to thousands of other equal pay claims from other supermarket workers at Sainsbury’s, Tesco and Morrisons, around 30,000 of whom are represented by the same law firm, Leigh Day.

Leigh Day estimates that the total value of claims brought against the big four supermarkets – assuming all 500,000 eligible store staff claim and win – could be over £8 billion.

The biggest equal pay claim is against Tesco, where around 8,000 workers have joined the Tesco Action Group, a legal campaign led by law firm Harcus Sinclair.

Similar to the Asda workers, the group claims that Tesco shop floor staff – the majority of whom are female – are paid up to £3 less per hour than its predominantly-male warehouse and distribution centre workforce.

Today’s judgment concerns the first stage of the process and means that the legal claims against Asda will now be assessed through a number of objective criteria to see whether the roles are of equal value.

Asda workers may have won the battle, but the war is far from over – Felicity Staff, Taylor Wessing

Linda Wong from Leigh Day’s employment team said: “Our clients are obviously delighted to have won this major victory against Asda and we now hope that rather than continuing to spend huge sums of money thwarting attempts to pay their staff what they are worth, Asda and the other major supermarkets pay their staff fairly as these workers are also their customers and fair wages benefit all businesses and UK society in general.”

Felicity Staff, an employment lawyer at Taylor Wessing, explained that the Asda workers “may have won the battle, but the war is far from over”.

“They will now need to deal with the next two stages of the claim in the employment tribunal: whether the shop worker and distribution centre roles are of equal value; and then whether there is any reason beyond sexual discrimination for not paying these two roles equally.

“The next question, one of value, is a particularly complex balancing exercise for tribunals, and one reason why equal pay claims can take so long to progress.”

She added that today’s decision in finding shop floor and distribution roles to be comparable could see equal pay claims start to spill over into other private sector employers: “Think, for example, fashion retail staff assistants versus manufacturing warehouse personnel, or even restaurant waiting staff versus kitchen staff.”

Alexandra Sidossis, a pupil barrister at Outer Temple Chambers, commented: “Employers will have a tough time arguing that they don’t need to ensure pay equality between workers at different sites operating different employment regimes: the question won’t be how different are the terms at the two sites – but how different would the terms be, if workers from one site were transplanted to do their own jobs (however unlikely that is in practice) at the other site?”

12 Responses to Court of Appeal: Asda workers can proceed with equal pay claims

  1. Avatar
    John Hillcoat 31 Jan 2019 at 8:21 pm #

    Don’t see what terms has got to do with it, it’s the conditions that makes the difference. Steel toe capped boots, hard hats and high viz, out side in pouring rain loading/unloading 40ft trailers, Sweating mid-summer stacking 50kilo boxes on pallets and pulling them on pump trucks up slopes, risk of accidents from forklifts,falls and back problems, Physical demands and injuries meaning shorter working life and needing more time off. Can’t understand why woman don’t want to do it. I guarantee any man in the warehouse could do the shop job, not sure how many shop workers could work under warehouse conditions.

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      Ian Swain 7 Feb 2019 at 11:12 pm #

      We do exactly the same in the shops and have to cope with badly stacked comps etc. How do you think stuff gets on the shelves .. by magic?

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      Hugh O'connor 9 Feb 2019 at 8:59 pm #

      You are confusing working conditions with the basis of the claim. Whether or not the work is of equal value.

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      Janet Maunsell 18 May 2019 at 11:08 pm #

      Not sure that working on customer service is as straightforward as you imagine.. It may not involve as much heavy lifting or outside work but (and I speak from experience as I’ve done the job you describe and yes, I’m female) there are certain people related skills that are required, in addition to having to use your initiative to a far greater degree, that mean that the work is in every way of ‘equal value’, which is the criteria this claim is being made by, not by the physical effort required.

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    H Almond 1 Feb 2019 at 2:51 pm #

    NB: Article is currently linking to a different Court of Appeal judgment in January 2019 involving the same case but on a different point of law (how multiple claimants should submit their claims). Link to the relevant Court of Appeal judgment on the comparator point is here: https://www.bailii.org/ew/cases/EWCA/Civ/2019/44.html

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    John 4 Feb 2019 at 6:40 am #

    Can ex employees make a claim,
    If they were not in Union at time can they bring a private claim and how far back can claim be back dated

    Thanks
    John

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      Margaret 17 Feb 2019 at 11:26 pm #

      Yes ex employees can put in a claim, you can go back 6 years

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    steve robins 5 Feb 2019 at 3:52 pm #

    i work outside as a trolley porter for Asda, but i am not in the union. Do i need to join ?

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      Ian Swain 7 Feb 2019 at 11:13 pm #

      Yes and then put a claim in

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    Rachael coulson 3 Apr 2019 at 9:37 pm #

    I work 4 night shifts a week, basically I do the work that the warehouse workers do in reverse, they take it from the shelf and put it on a pallet , I take it from the pallet and put it on the shelf. We all have to work at speed and to timescales, it’s the most physical job I have ever done, I’m not grumbling though, it’s my job, all I ask is, that I’m paied fairly and receive the same pay as those doing similar roles .

  6. Avatar
    Mike Evans 5 Jun 2019 at 4:18 pm #

    I’ve worked in both warehouse and now as a night shift worker in store, pulling heavy pallets, lifting the same heavy items, having to fill shelves at ridiculous speed, back-breaking on certain aisles. I would say the shop work is more demanding than warehouse work and also physically demanding work, with abusive customers to cope with. About time these supermarkets started being fair.

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