14/07/2020

Asda Stores Ltd v Brierly and others: Role comparability & gender equality

ver 35,000 current and former employees of Asda are presently fighting the supermarket titan in the Supreme Court over equal payment rights. This claim is the UK’s largest ever equal pay claim and represents a 13-year battle for women staff at Asda stores to be paid the same amount as men in equivalent positions. Tom Jones and Alex Christen take a closer look at the case, and consider how it may shape the future of UK retail and gender equality in the workplace.

The case

In 2016, an employment tribunal ruled that the roles of Asda’s shop workers (mostly women) could be compared to those of warehouse staff (mostly men). And because the latter were paid at a higher rate than the former despite doing a comparable job, the tribunal found that the women shop workers had been paid less than their male counterparts.

Asda is now asking the Supreme Court to overturn this ruling, arguing that the warehouse and shop floor roles are not comparable. If Asda loses the appeal, then its workforce would be able to claim for equal pay with their male counterparts under section 794) of the Equality Act 2010 (or in some of the older claims, section 1(6) of the Equal Pay Act 1970).

Whilst this case depends on the technicality of comparability of roles, it is through the filter of the ongoing battle for equal pay amongst the genders in the UK workplace, and has grabbed headlines as such. Solicitors who act for the Respondents (the Asda staff) say that they have identified approximately half a billion staff to which this case relates, and that if they are successful, the payout from Asda might total as much as £8 billion.

What happened over the last four years?

The finding of the 2016 employment tribunal was appealed to the Employment Appeal Tribunal in 2017, who upheld the decision of the tribunal. It was then appealed to the court of appeal, who also upheld the finding. The case is now in the Supreme Court, heard on 13th and 14th July, with a judgement expected in the early autumn.

It is only solving one question, though. Even if the Asda employees do win in the Supreme Court, they will then need to argue that the roles they had compared with the distribution staff are of “equal value” before they are on the way to winning equal pay. Finding a comparator is just the first step in an equal pay claim – the successful claimant must also show that the comparable employee does a similar role to them but is paid more. If the employer cannot show that the reason for the difference is apparently gender neutral, the claim will succeed.

What does this mean for the UK as a whole?

As is so frequently the case with domestic UK legislative matters, the buck stops with the Supreme Court. Legal commentators and lawyers alike follow Supreme Court cases with interest, because the Supreme Court judgment sets precedent for all cases that follow it. There are few places to take a case after the Supreme Court, and so its cases are treated as authority in subsequent matters of similar circumstance.

The Asda Stores Ltd v Brierly and others case will act as a shot across the bows of other retail giants, such as supermarkets (many of which are facing similar gender pay equality claims in the courts) or clothes stores, in terms of how they treat their employees, and the importance of gender pay equality. It is a complex case, but its outcome has the potential to mark progress towards true workplace gender equality.

We await to read the consideration and decision on this case when the judgment is handed down later in the year.