In-store Asda staff have won the latest stage of an equal pay claim that rests on the argument that mostly female in-store staff should be paid the same as mostly male distribution centre staff.
Tens of thousands of Asda shop floor staff are represented in the equal pay claim that has now won at its latest stage in the Supreme Court. The court today ruled that those working on the shop floor at Asda – who are largely female – can be compared for purpose of the equal pay claim to workers in its distribution centres – who are largely male. Asda’s distribution centres serve both stores and online. That means the action – which arrived in the Supreme Court via an employment tribunal in 2016 and the Employment Appeal Tribunal in 2017 and the Court of Appeal in 2019 – will now move to its next stage. Asda says the case will now look at whether store and distribution roles are of equal value and, following that, if there are any other factors apart from gender why the two roles should not be paid equally.
The GMB Union is bringing the case on behalf of almost 40,000 Asda workers, instructing law firm Leigh Day. It is urging Asda to settle the case now.
Susan Harris, GMB legal director, says: “This is amazing news and a massive victory for Asda’s predominantly women shop floor workforce. We are proud to have supported our members in this litigation and helped them in their fight for pay justice.
“Asda has wasted money on lawyers’ bills chasing a lost cause, losing appeal after appeal, while tens of thousands of retail workers remain out of pocket. We now call on Asda to sit down with us to reach agreement on the back pay owed to our members – which could run to hundreds of millions of pounds.”
Wendy Arundale, who worked for Asda for 32 years, says: “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.”
Lauren Lougheed, a partner in the employment team at Leigh Day, says: “We are delighted that our clients have cleared such a big hurdle in their fight for equal pay. Already an employment tribunal, the Employment Appeal Tribunal and the Court of Appeal ruled that these roles can be compared, and now the Supreme Court has come to the same conclusion. It’s our hope that Asda will now stop dragging its heels and pay their staff what they are worth.”
But Asda says distribution and in-store work is very different in nature. An Asda spokesperson says: “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.”
Context and implications
Asda recently set out plans to respond to the rise of online demand during the Covid-19 pandemic by shifting online fulfilment in-store and closing two online fulfilment centres in Dartford and Heston with the loss of about 800 jobs. Instead, online orders in the south of the country will be picked from local stores in a way that Asda says will improve availability, capacity and service. The move is part of a strategic change as shoppers shift online during the pandemic.
Jobs will also be hit as store management is streamlined, while around 3,000 back office jobs are also expected to be affected as cash office, administration, people and training work is simplified into work done by one back office member of staff. Asda says less cash is now handled in-store, and staff can be trained to use new technology to complete “multiple back office tasks”.
The supermarket promises 4,500 new jobs as the supermarket moves to picks more online orders in-store. But the move puts 5,000 existing jobs at risk – and the GMB has said that more than 3,700 jobs could ultimately be lost.
The decision could have far reaching implications for other retailers, says Rhona Darbyshire, employment partner at law firm Cripps Pemberton Greenish. She describes the decision as monumental not only for the Asda employees bringing the case but for others working for similar businesses.
“The likes of Tesco, Sainsburys, Morrisons and Co-op all have similar claims waiting in the wings with a combined estimated value of £8 billion,” she says. “This decision will be a real boost of confidence to the claimants and to any potential future claimants thinking of bringing a similar equal pay cases. Hopefully this decision will also encourage businesses in the private sector to reflect carefully on the true meaning of equal pay for equal work.”
Beverley Sunderland, managing director of Crossland Employment Solicitors says: “It is important to note that this is not the final decision in this case, it is only a decision on whether the two sets of employees can be compared for the purposes of equal pay. This is the largest ever equal pay claim against a private employer – and it could run and run.
“The Supreme Court’s decision has just made comparisons for equal pay purposes between different sites much easier, by making it clear that the threshold test is a low one and arguing that there are no common terms should not be used as a major battle ground in an equal pay claim. Employers can deploy all of their other arguments about work of equal value and so on, but that the question of ‘common terms’ is now an area which is unlikely to be argued about going forward.”