The Court of Appeal has rejected Sainsbury’s attempt to throw out an equal pay claim on a technicality.
The retailer argued that the employment tribunal should have rejected the equal pay claims against it because most of the claimants’ names were not listed on early-stage paperwork.
It also said that the claim forms did not include the reference number of a early conciliation certificate issued by the Acas. Early conciliation is required before a tribunal claim is submitted.
A large number of employees working in supermarkets have launched equal pay claims against their employers, including Sainsbury’s, Asda, Tesco, and other major retailers. So far none of these has reached a conclusion.
The most recent rulings in these cases have determined which roles are comparable for equal pay purposes.
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The claimants in the case against Sainsbury’s, as well as similar cases involving other retailers, argue that shop floor workers, who are mostly female, and warehouse workers, who are mostly male, should receive the same rate of pay. Currently, most warehouse workers are paid more than shop floor staff, with retailers arguing that the roles are materially different.
Sainsbury’s argument about the early conciliation (EC) certificate was upheld by an employment judge in March 2020, but the claimants’ case was later restored by the Employment Appeal Tribunal.
It sought to appeal against the EAT’s ruling and restore the order of the first employment tribunal, arguing that both an employment judge and the Employment Appeal Tribunal had misinterpreted the rules about including EC certificates on claim forms.
Dismissing Sainsbury’s argument last week, Court of Appeal judge Lord Justice Bean said: “While a claim form must contain the name and address of each claimant and each respondent, it is sufficient for it to contain the number of an EC certificate on which the name of one of the prospective claimants appeared.
“I do not accept that it is part of the legislative purpose to require that the existence of the certificate should be checked before proceedings can be issued, still less to lay down that if the certificate number was incorrectly entered or omitted the claim is doomed from the start.”
Lord Justice Bean added: “When industrial tribunals were established more than half a century ago the purpose of Parliament was to create a speedy and informal system free from technicalities. It has been repeatedly stated that employment tribunals should do their best not to place artificial barriers in the way of genuine claims.”
Linda Wong and Lauren Lougheed, solicitors at Leigh Day, the law firm representing some of the claimants, said: “Women are still being paid less than men more than 60 years after the introduction of equal pay laws. Sainsbury’s had a choice about defending these claims on their merits, or trying to reduce the number of claimants by making ‘highly technical applications’.
“Our clients are glad that the Court of Appeal has agreed with us that these claims should continue, and hope Sainsbury’s begin to properly value the work of their female store workers.”
A hearing to consider job descriptions will take place in March 2024. Leigh Day said there are two further stages after this: one hearing to decide whether the tribunal agrees with the recommendations from the independent experts who have been asked to produce a report on whether the roles are of equal value, while another hearing, assuming the work is of equal value, will look at whether Sainsbury’s has a reason to pay men and women differently that is not related to sex.
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A Sainsbury’s spokesperson said: “Although this appeal regarding a litigation technicality was not found in our favour, we continue to robustly defend these claims. Men and women doing the same jobs receive the same rate of pay and we’re proud that we’ve invested substantially in our colleagues over the last few years, including £205 million of support in the last 12 months.”
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