Supreme Court: Asda shop floor staff can be compared to warehouse workers

The roles of shop floor workers and warehouse staff at Asda can be compared for the purposes of assessing equal pay, the Supreme Court has ruled in a landmark judgment which will have ramifications for other equal pay cases in the retail sector. 

Delivering the court’s judgment this morning, Lady Arden dismissed Asda’s appeal and confirmed that the terms and conditions of shop floor staff and distribution centre workers can be compared with one another, even if the two groups of workers are not based at the same establishment.

However, Lady Arden said the 35,000 shop floor workers who brought a claim against the supermarket still must prove the work they do is of equal value, and Asda is still open to argue that there is a material difference in the roles which justifies a difference in pay.

She said the case as Lady Arden said the case was “important because otherwise an employer could avoid equal pay claims by allocating certain groups of employees to separate sites so that they can have different terms even where this is discriminatory”.

Asda, Sainsbury’s, Tesco, Morrisons and numerous other major retailers including Next have each been embroiled in long-running equal pay disputes with shop floor workers, who claim their work is of equal value as the work carried out by warehouse staff, whose roles attract a higher hourly rate of pay.

Law firm Leigh Day, which is representing Asda staff in the case, said it was the largest equal pay claim to ever be brought in the UK and has estimated that pay outs could total £8bn if all retailers lose their cases.

The shop floor workers in the Asda case are mainly female, while the distribution staff are mainly male, making it an equal pay issue.

Michael Newman, a partner at Leigh Day, told Personnel Today: “The next stage of the claim is assessing whether the jobs are of equal value – for example, whether they need qualifications to do them. We’ve been looking at this for several years, so this work will continue.”

Lauren Lougheed, also a partner at Leigh Day, commented: “We are delighted that our clients have cleared such a big hurdle in their fight for equal pay.

“It’s our hope that Asda will now stop dragging its heels and pay their staff what they are worth.”

Asda Stores v Brierly case history

In 2016, thousands of predominantly female store staff took Asda to an employment tribunal, claiming that their work was of equal value to that of predominantly male staff working in its distribution centre. They argued that because of their work was of equal value, they should receive an equal rate of pay.

When the legal battle began, the difference in pay for shop floor staff and warehouse staff at Asda ranged between 80 pence and £3 per hour depending on the store.

Until now, the case has focused on whether the two groups of workers can be compared with each other for equal pay purposes – not whether they are of equal value.

Asda has argued that the roles cannot be compared with each other as they are in different departments and the rates of pay were set using a different method. It said the daily roles of warehouse workers are more difficult than that of shop floor staff and that its distribution centres were located in areas with a higher average wage.

The employment tribunal rejected Asda’s defence and agreed with the claimants that the roles could be compared. This was upheld by the Employment Appeal Tribunal on appeal from Asda.

The case then went to the Court of Appeal, which in 2019 also ruled that Asda store workers can compare themselves to warehouse staff for equal pay purposes.

In his Court of Appeal judgment, Lord Justice Underhill said that for both retail workers and distribution workers “Asda applied common terms and conditions wherever they work”. The Supreme Court has agreed with this.

Reaction

An Asda spokesperson said: “This ruling relates to one stage of a complex case that is likely to take several years to reach a conclusion. We are defending these claims because the pay in our stores and distribution centres is the same for colleagues doing the same jobs regardless of their gender. Retail and distribution are very different sectors with their own distinct skill sets and pay rates. Asda has always paid colleagues the market rate in these sectors and we remain confident in our case.”

Wendy Arundale, who worked for Asda for 32 years, said: “I’m delighted that shop floor workers are one step closer to achieving equal pay. I loved my job, but knowing that male colleagues working in distribution centres were being paid more left a bitter taste in my mouth.

“It’s not much to ask to be paid an equal wage for work of equal value, and I’m glad that Supreme Court reached the same conclusion as all the other courts.”

Anne Pritam, a partner at law firm Stephenson Harwood, said: “It would be difficult to underestimate the significance of this judgment which will send shockwaves far beyond Asda. While tens of thousands of shop floor workers will be celebrating today, major retailers will be anxious that the equal pay battle takes a step closer to blowing a multi-billion pound hole in their Covid-depleted coffers.

“It is a watershed moment for the rest of the retail industry, particularly those defending their own equal pay claims – such as Sainsburys, Tesco, Morrisons and Next – and which have similar staffing models and pay structures.”

Lawyer Emily Fernando of Harcus Sinclair said: “This was a significant decision for the claimants involved in the case against Asda, as well as those bringing claims against Tesco and other supermarkets. The judgment makes it harder for the supermarkets to argue that it is not possible to compare store and distribution workers. This may mean the other supermarket cases proceed to a final hearing more quickly.”

Christine Sepahi, a former Tesco worker who sits on the Tesco Action Group committee, said: “This is an excellent result and, we hope, the next step in bringing Tesco and the other supermarkets to account for years of underpaying and undervaluing the contribution of store workers.”

Sainsbury’s to pay costs

Leigh Day has also been acting on behalf of Sainsbury’s workers who have brought a similar equal pay claim. In March 2020 Sainsbury’s claimed that store staff had provided incorrect job titles to the employment tribunal, which it argued invalidated their claim.

However, the tribunal has this week ruled that Sainsbury’s argument had “no proper factual basis” and that the organisaton had acted unreasonably.

It ordered Sainsbury’s to pay costs which will be decided by the county court. Leigh Day estimated that these were around £432,000.

Linda Wong, a partner in the employment team at Leigh Day, said: “Costs awards are rare in the employment tribunal, especially on an indemnity basis, which just goes to show how badly Sainsbury’s acted. The tribunal ruled that Sainsbury’s was unreasonable in their recent attempt to stop these equal pay claims and that their argument had no grounds for success.”

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In January Tesco was ordered by the Employment Appeal Tribunal to disclose information it holds about how much its warehouse staff are paid – evidence which could be key to the equal pay case being brought against it by shop floor workers. Some 3,700 staff are involved in the Tesco case.

More than 300 shop workers at Next have also brought a similar equal pay claim against their employer. At an employment tribunal in January Leigh Day accused it of destroying vital documents needed to help staff pursue their claim.