Equal Pay Updates
Asda workers begin the second phase of their equal pay claim this week at the Employment Tribunal. The first phase was decided by the Supreme Court in Asda v Brierley and others [2021] UKSC 10, on appeal from [2019] EWCA Civ 44 which was handed down by The Supreme Court on 26 March 2021, having been heard in July 2020.
Briefly, thousands of retail workers brought a claim against Asda on the basis that they are paid less than other Asda staff working in distribution depots. As is common across the retail sector, the in-store retail workers are predominantly female and distribution workers are overwhelmingly male.
The Supreme Court agreed that “common terms and conditions wherever they work” were applied to both sets of workers. It does not mean that the retail workers do have a valid claim for equal pay, just that it must now be considered, which is currently underway in the employment tribunal.
This follows the decision in August where 3,500 workers and former employees of the clothing retailer Next won a six-year equal pay claim employment tribunal ruled that Next failed to demonstrate that paying sales consultants (mostly women) lower hourly pay rates than they did their warehouse operatives (who tend to be men) was not sex discrimination.
These claims are a reminder to employers that work of equal value doesn’t mean that the work carried out has to be the same but if there is going to be a difference in pay rates then there must be a material factor which distinguishes between them.
Employers should also be wary of citing that they pay ‘market rate’ for a role. Although in the past this has been accepted as a defence to equal pay claims - this may now be found to have been inherently discriminatory if the role was a lower paid role due to it being perceived as ‘women’s work’ or other discriminatory factors applied.
Posted on 09/11/2024 by Ortolan
