Posted by Richard Woodman, Partner
Every penny counts for Asda
Shockwaves are being felt in the retail industry following an employment tribunal decision, which could hit the pockets of one of UK’s biggest supermarkets to the tune of £100 million.
The Manchester Employment Tribunal has ruled that a group of 7000 mainly female store workers can compare themselves to male distribution depot workers, who were paid substantially more than them for the purpose of bringing equal pay claims against Asda Stores. The store workers are arguing that they are entitled to the same pay as Asda’s distribution depot employees. They claim that their work has historically been seen as ‘women’s work’ and thought to be worth less than the work done by the men in the depot.
The supermarket had sought to stop the case in its tracks at a preliminary hearing in the case of Brierley and other v Asda Stores Ltd, by arguing that the claimants had not satisfied key legal requirements in an equal pay claim.
The legal argument focused on EU law and S.79 of the Equality Act 2010, which states that a claimant and a comparator must be employed by the same employer and work at the same establishment; or if they are both employed by the same employer and work at different establishments, ‘common terms’ must apply at the establishments either generally or as between claimant and comparator.
The tribunal rejected Asda’s attempts to argue that its Retail and Distribution divisions should be viewed independently. It held that the Executive Board had overall pay and budgetary responsibility across both divisions. It also accepted the claimants’ argument that their employment terms were broadly similar to those of the depot employees – they were all hourly paid and the structure of the terms in the respective handbooks was broadly the same.
Commenting on the tribunal decision, Royds Withy King Employment partner Richard Woodman says: “This is a major set back for Asda in this important case. The supermarket had sought to defeat the claims on specific legal points which essentially boiled down to arguing that it did not have control over pay terms and decisions, nor were there common terms of employment between the groups. Whilst this is an important victory for the shop workers, many of whom worked and continue to work at the Asda check out and stack shelves, the employment tribunal has yet to decide that the roles of store and depot workers have equal value. We will be monitoring the impact this outcome from the tribunal has on the wider retail sector, where there are differences in pay and gender between the shop floor and in warehouses.”
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