A decision by the Manchester Employment Tribunal at a
preliminary hearing, in what is the largest ever private-sector
equal pay case, has opened the floodgates for a wave of claims
Under UK legislation, female employees are entitled to enjoy
contractual terms that are as favourable as those of a male
comparator, if they are employed in jobs of equal work. The key
issue in the Asda case is whether the supermarket's in-store
staff roles, which are mainly held by female workers, are of equal
value to higher-paid jobs in its male-dominated distribution
At the preliminary hearing, the Tribunal had to determine
whether the Asda store workers could compare themselves to the
distribution workers for the purposes of an equal pay claim.
Under section 79 of the Equality Act 2010, an equal pay
comparison is only valid between the claimant and a chosen
comparator if they are both 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 but 'common terms
apply at the establishments'.
Asda sought to argue that the sets of employees were not
comparable as they were based in different locations with different
pay arrangements, and that the pay differentials reflected market
rates. However, the Tribunal was not convinced by this argument and
held that the statutory test was met and, as such, that the
distribution workers are a suitable comparator.
This ruling will now mean that the test case can proceed and
will clear the way for over 7,000 claims currently in waiting to
follow. The claimants in these cases are seeking rectification and
compensation for historic discrimination, and it is estimated that
the total value of the claims could exceed £100million.
Whilst this is just a decision in respect of a preliminary
matter, and we will be keeping a careful eye on the test case as it
unfolds, the decision is likely to impact on other employers in the
retail space, as the disparity between shop floor staff and
warehouse staff is not unusual.
In light of this preliminary ruling, employers may wish to
reassess how they carry out job-evaluation across the whole of
their business; and ensure that equal pay considerations are kept
in mind cross-establishment.
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