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Equal pay claims “check-out” at Court of Appeal stage

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The claimants in the long-running equal pay saga against supermarket household name Asda secured another positive step forward with the Court of Appeal (CoA) finding last week. The CoA decided that predominantly female supermarket employees (checkout staff and other customer-facing roles) can compare themselves to higher-paid predominantly male employees at distribution sites for the purposes of an equal pay claim (Asda Stores Ltd v. Brierley and others).

This “establishment” issue has arisen in equal pay claims before (as well as other types of claim). Here the CoA found that, although employed at different establishments, each class of employee was employed under common terms and conditions that would apply wherever they were employed. This meant the “same employment” test for comparison was satisfied. Further the CoA held that Asda’s Executive Board (underpinned by decisions made by US parent company, Walmart Inc.) was a “single source” of terms and conditions between the claimants and their comparators.

Given the number of claims lodged (around 30,000 according to the CoA decision) and the potential costs if the claims are ultimately successful, as well as perhaps the threat of increased customer awareness and reputational damage, an appeal to the Supreme Court may be likely. The CoA refused Asda permission to appeal but it can seek that permission direct from the Supreme Court.

The CoA decision relates to a “preliminary point”. It remains to be seen, of course, whether the claimants and comparators are doing work of equal value to each other and, if so, whether or not Asda can establish that the difference in pay is for a material factor unrelated to gender.

Employers in any sector should take steps to ensure that male and female employees who are doing like work (the same or broadly similar work), work rated as equivalent applying the same job evaluation study or work of equal value in terms of the effort, skills and demands are paid equally. This is important even if it appears on the face of it that the roles are not the same and/or have different terms and conditions generally or the employees work at different establishments. Analysing this might require an equal pay audit.