The Court of Appeal has dismissed Asda's claim that no comparisons can be made between their primarily female retail based staff and their employees working in its distribution depots who are predominantly male. The case is significant for future equal pay claims and has been described by Lord Falconer QC as "by far the most important, complex and financially significant equal pay claim ever pursued in the private sector".
Over 7000 (predominantly female) claimants who worked in Asda retail stores brought a claim arguing that they were not receiving equal pay in relation to their hourly rates and contractual bonuses when compared to the predominantly male staff working at Asda's distribution depots. Asda's position was that the two pay regimes were distinct and therefore could not be compared. The Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) dismissed Asda's argument and held that although the retail and distribution divisions were run separately (with different terms and conditions), the ultimate control of both was with the Asda Executive Board and therefore there was a 'single source' for pay purposes. You can read our previous article on the EAT decision here. Asda appealed the EAT's decision to the Court of Appeal.
Court of Appeal Decision
The Court upheld the decisions of the ET and EAT, stating that even though the two groups worked at completely separate establishments, such that no distribution worker would have done distribution work at a retail site, and no retail worker would have done retail work at a distribution depot, a comparison could be made because the employer observed broadly common terms and conditions for the relevant groups across its sites.
What is Next for This Case?
At present, this preliminary issue has been resolved and the retail staff, the claimants, can compare their terms against the distribution workers. However, an Employment Tribunal will now have to determine whether the work performed by the retail staff and the distribution staff is truly of equal value to Asda's business and, if it is, whether any variation in pay can be justified on objective grounds.