Retail gender pay case could spawn copycat claims

First large-scale private sector equal pay hearing due soon

More than 400 female Asda shop-floor workers will appear at an employment tribunal for 10 days during June to argue they are entitled to equal pay to their male colleagues working in the retailer’s warehouses.

According to the claimants’ solicitors in the case of Brierley v Asda, the warehouse workers earn up to £4 an hour more than the shop-floor workers for working anti-social hours in uncomfortable conditions. The shop-floor workers claim:

  • their roles are either similar to, or of equal value to, the warehouse staff
  • the reason for the pay discrepancy is that they are female
  • both groups should receive the same pay.

A case with such a large number of claimants and a high-profile brand is bound to cause headlines. But why should anyone, other than perhaps the supermarket rivals, pay any attention?

Women have been entitled to the same pay as men for carrying out work of equal value since the 1970s although, to date, equal pay cases have mainly been in the public sector. But the issue has been creeping into the private sector, and the Brierley case is the first large-scale claim to be brought against a private employer.

If the claimants are successful they will be entitled to six years’ (five in Scotland) back pay and to equal pay in future. Male shop-floor workers may then piggy-back on to the successful claims of their female counterparts. Press reports indicate that the firm representing the employees has received 19,000 enquiries from Asda employees. The liability is potentially significant, although there is no indication at this stage of the strength of the claim and it has so far been denied by the retailer.

Even if the claimants are unsuccessful, the case will raise the profile of equal pay within the private sector. Supermarket rivals will want to make sure their own houses are in order. Beyond the supermarket and retail sectors it is difficult to say where the next hotbed of equal pay claims will appear. Organisations that have predominantly female sections of their workforce working alongside predominantly male working groups who are carrying out work at a similar level, will be a target.

The hotel industry, for example, often has large numbers of indoor female staff and groups of predominantly male groundsmen. Although the roles are not necessarily the same, a tribunal might consider them to be of ‘equal value’ which is good enough to require both groups to be paid the same.

Determining whether jobs are of equal value is notoriously difficult and those involved in this area of the law will be watching the Brierley case to see if the tribunal gives any further guidance on it, particularly as it applies to the private sector. Claims usually involve the appointment of an independent expert to assess the values of the roles in question and the process resembles an organisation-wide job evaluation scheme with the focus on a couple of roles only. Often the expert will use a points-based system to evaluate the different requirements of the role, such as mental skills, physical effort, initiative, independence, and knowledge.

Clearly employers will not want to become a target for multiple equal pay claims. Many will already be thinking about how to comply with the gender pay gap reporting obligations due to come into force later this year, which require employers with over 250 employees to calculate the average pay of men and women in each quartile of their workforce to identify the gender pay gap. This may help with managing the risk of equal pay claims.

A gender pay gap may have nothing to do with pay discrimination; there are many reasons behind pay differentials, with childcare responsibilities and women’s career aspirations being just two of them. However, if an organisation does identify pay discrimination during the process, it does have an opportunity to resolve the situation before claims are lodged, or at least will be aware of its potentially liability.


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