Last reviewed 26 March 2021

A group of women employed in Asda’s supermarkets have sought compensation on the basis that they received less pay than a valid comparator for the same work.

The chosen comparators are Asda employees employed at the firm’s distribution depots, who are predominantly men.

The case finally reached the Supreme Court where the question at issue was whether common terms apply between the claimants’ and comparators’ establishments, satisfying the common terms requirement in the equal pay legislation.

This is the first case involving a cross-establishment comparison where the claimants’ and comparator groups’ terms are not fixed on both sides by collective bargaining agreements.

The women have already successfully argued their claim before the employment tribunal, the Employment Appeal Tribunal (EAT) and the Court of Appeal.

By a unanimous decision, the Supreme Court has now dismissed Asda’s appeal although Lady Arden, giving the judgment, emphasised that this does not mean that the claimants’ claims for equal pay succeed.

“At this stage,” she explained, “all that has been determined is that they can use terms and conditions of employment enjoyed by the distribution employees as a valid comparison.”

What happens next?

Law firm Leigh Day, representing the female supermarket workers, said that the Court ruling brought them one step closer to victory in their fight for equal pay.

It highlighted Lady Arden’s point that the case was important “because otherwise an employer could avoid equal pay claims by allocating certain groups of employees to separate sites so that they can have different terms even where this is discriminatory”.

The next stage in this claim is for the solicitors, on behalf of the claimants, to argue that the roles are of equal value. This part of the claim is already underway.

After equal value has been decided, Asda will then have an opportunity to argue that there is a reason, other than sex discrimination, as to why the roles should not be paid equally.

Susan Harris, GMB Legal Director, said: “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”.

Comment by Kate Palmer, HR Advice and Consultancy Director at Peninsula

This is good news for the employees but not for Asda, as it will still need to prove that there is a genuine material factor to justify the pay difference between its floor staff and warehouse staff. This is therefore not the end of the road for the parties and we’ll have to wait and see how Asda defends its pay structure, and if the floor staff can prove that their work is equal in value to that which is performed by the warehouse staff.

Whilst the battle for a ruling continues in this case, other employers within the retail sector may find that the floodgates have been opened for similar claims to be brought against them.