The claimants in the long-running mass equal pay claim against ASDA won a significant tactical victory recently, when the Supreme Court gave a ruling that allows their claims to proceed.
The issue was whether the claimants (store workers) will be able to compare their pay with distribution workers who work in depots (and who receive higher pay). Because they work at different locations, the claimants must show that 'common terms' of employment apply across the depot and store locations. Over time, the courts have interpreted this 'common terms' requirement as meaning, effectively: 'If a store worker was redeployed to work at a distribution depot, would their terms of employment be broadly the same?". The question for the Supreme Court was whether the Equality Act 2010 (which has slightly different wording from its predecessor, the Equal Pay Act 1970) would prevent the courts applying this approach. The Court of Appeal had ruled that the Equality Act should be read 'purposively' to allow this comparison and so allowed the claims to proceed.
The Supreme Court agreed with the Court of Appeal, and so the claims will proceed to trial (having already taken several years to get to this preliminary stage). If the claims succeed, ASDA is likely to have to pay millions in compensation. However, the case has significantly wider implications. The Supreme Court's ruling means that the scope of equal pay law - and in particular the requirement to pay the same for 'work of equal value' - remains wide. Employers which employ staff in a wide range of roles at different locations may be liable under equal pay law if male and female-dominated roles don't receive equal pay for work of equivalent complexity. The sums involved can be substantial, as equal pay claims can be backdated for up to 6 years.
Equal pay claims are increasingly an issue in the private sector, particularly where social media is used to recruit claimants for mass claims and crowdfunding can be used to fund them. The financial and reputational impact can be significant. Employers looking to reduce their risks would be well-advised to investigate their pay structures (on a legally privileged basis if possible) to ascertain whether there are sex-based disparities in pay and how to address them.
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