17 July 2014 0 Comments
Posted in Employment, News, Opinion

UK retailers hold their breath over test case which could cost them millions

Retailers may have to pay millions of pounds in higher wages and back pay to workers if a test case for equal pay is successful.  More than 400 shop floor workers, who are mostly women, are taking ASDA to Court because they claim they are paid less than men even though they do equally demanding work. Campaigners are using Facebook and holding meetings across the UK to support the legal action as it gathers in size and momentum.  Many of the claims are individually worth more than £10,000 because staff are able to claim for the difference in earnings over the last six years.

The ASDA Case

Shop floor staff claim that they should be paid the same as male colleagues who work in the supermarket’s distribution centres. They claim their work in stores which includes serving customers,  stacking shelves,  organising displays and pricing, is of equal value to jobs in distribution centres where male colleagues  stock merchandise, take products off shelves and put them on to pallets and then load them on to lorries.  Given the size of the potential payout, ASDA is likely to defend the pay disparity.  It could argue that the difference in pay is not related to a person’s sex but  because  the work in the distribution centres  is more physical, may  involve  anti social hours and may also be in uncomfortable conditions. The case is due to be heard at Liverpool Employment Tribunal later this year.

 Helen Murphie, Partner in Royds Employment Department said:  “The implications for retailers are enormous because it is not uncommon for there to be a concentration of workers of one sex working  in selected parts of the business,  for example male workers in warehouses.  Often such workers are paid more than the opposite sex who may undertake duties in the company which have traditionally been the preserve of female employees,   for example, shop floor staff.    While job assessments and evaluations are  commonplace in public services and in large companies, smaller business, particularly in the private sector, often don’t  consider rating or assessing roles in terms of skill, value and pay.   The outcome of this case is keenly awaited.”

The law

Employers must pay men and women the same if they are employed to do work that is ‘equal’. Such work can be split into three categories: (1) work that is the same or broadly similar,  for example firemen and firewomen undertake the same duties and are paid the same, (2) work rated as equivalent under a job evaluation study, or (3) work found to be of equal value in terms of effort, skill or decision-making.  A good example is the case of the dinner ladies whose work was evaluated as equal to     the road sweepers and gardeners in North Yorkshire County Council.

An employer may rely on the ‘material factor’ defence if it can prove that the difference in pay is due to a material difference which is not sex discriminatory.  It will depend on the facts, but examples that might establish a defence include market pay levels which are not gender related, working unsociable hours and uncomfortable working conditions.

 Avoiding equal pay claims?

If you are aware that some roles in your business are predominantly undertaken by men or alternatively women and there is a pay difference between roles and sexes,   you should be alert to a potential equal pay claim.   You may want to review your employment policies, or in more serious cases, it may be necessary to undertake a job evaluation assessment, or equal pay audit. Where there are pay disparities, you will need to think carefully about justifying or alternatively correcting them.

For further information on equal pay issues, or where you suspect you are being paid less than a colleague of the opposite sex for doing the same, similar, or equivalent work, contact Helen Murphie or the Royds Employment Department on 0207 583 2222.

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