Asda Equal Pay Saga Continues After Supreme Court Ruling

April 29, 2021

The Supreme Court has recently made a ruling in the long-running Asda equal pay litigation, which also has important implications for other employers.

In 2014, female employees at Asda began legal action over the fact that they were paid less than males to do equally valuable jobs at the supermarket chain. Their case was that Asda’s (primarily female) workers on shop floors were paid between £1.50 and £3 an hour less than workers in the supermarket’s warehouses and distribution centres, who were mostly male. Equal pay law states that workers must be paid the same for equal work, including work that is similar or of the same value to the employer.

In a final ruling on a preliminary question which has made its way up through the lower courts for seven years, the Supreme Court has now ruled that the jobs of the distribution centre workers can be treated as comparable to those of the shopfloor workers for the purposes of equal pay law, even though they do not work in the same locations.

However, Asda employees must now return to the Employment Tribunal over the questions of whether the two roles can be considered to be of “equal value” and whether there is any material reason why Asda is entitled to apply different rates of pay to them.

As other supermarkets such as Tesco and Sainsburys are currently defending their own equal pay claims, the significance of the Supreme Court’s Judgement will extend further than Asda and have implications for the whole of the retail industry. However, employers in other sectors should also be mindful that jobs do not have to be identical for the Equality Act 2010 and Equal Pay Act 1970 to apply.

Employers must ensure that they pay all staff fairly, and should consider the following tips:

• Any employer can be exposed to an equal pay claim, so it may be beneficial to carry out an equal pay audit to identify if there are any discrepancies in pay;

• Due to various reasons, female employees can often have different working arrangements to their male counterparts, but as an employer you are obliged to treat part time employees no less favourably than those employed full time;

• All contractual benefits such as overtime, bonuses and sick pay are all covered under the Equality Act 2010 and are therefore subject to equal pay provisions for comparable roles; and

• There are no minimum service requirements for an employee to bring an equal pay claim so consistency amongst all employees is vital.