Court of Appeal upholds that Asda store and distribution staff are comparable


The Court of Appeal has today (Thursday 31 January 2019) upheld that store-based employees, who are majority female, at retailer Asda have comparable job roles to their predominantly male counterparts working at the supermarket’s distribution centres.

This judgment is the latest result in the ongoing equal pay case against Asda, led by law firm Leigh Day on behalf of affected shop staff. The claimants argued that lower-paid, female store-based employees held comparable roles to primarily male staff working at Asda’s distribution centres, meaning that they should be paid equally for the work they perform.

Judges at the Court of Appeal ruled that in the vast majority of cases, the law allows an employee to compare themselves with any employee of the same employer.

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The judgment follows a three-day hearing at the Court of Appeal, which was held in October 2018.

The hearing took into consideration three main areas of interest that are typical for equal pay cases: are the job roles comparable; if the roles are comparable, are they of equal value; and if the job roles are of equal value, is there a reason other than sex discrimination that means the roles should not be paid equally?

The case was originally heard by The Employment Tribunal (ET) in October 2016; Asda appealed this decision on 10 different grounds. However, in August 2017, the Employment Appeal Tribunal (EAT) issued this appeal unsuccessful, to concur with the ET. Asda appealed this second decision and took the case to the Court of Appeal.

The most recent judgment regards the first stage of the legal process; legal claims against Asda can now progress to assessing through a number of objective criteria whether the roles are of equal value.

A spokesperson at Asda said: “We are obviously disappointed with the decision, which relates to a preliminary issue of whether jobs in different parts of the business can be compared. Asda brought this appeal because it involved complex legal issues which have never been fully tested in the private sector and we will continue to ensure this case is given the legal scrutiny it deserves.                                                                                                                 

“We remain confident in our case. This appeal has caused no delay to the main case, which has been continuing in the Employment Tribunal. The tribunal has yet to consider whether the jobs are of equal value in terms of their demands; it is only if some jobs are of equal value that the tribunal will go on to consider the reasons for the pay differential between them, including the fact that there are different market rates in different industry sectors.

“At Asda, our hourly rates of pay in stores are the same for female and male [employees] and this is equally true in our depots. Pay rates in stores differ from pay rates in distribution centres because the demands of the jobs in stores and the jobs in distribution centres are very different; they operate in different market sectors and we pay the market rate in those sectors regardless of gender.”

Asda has also confirmed that it will be applying to the Supreme Court to appeal the Court of Appeal’s judgment.

Linda Wong, lawyer, employment team at Leigh Day, added: “Our clients are obviously delighted to have won this major victory against Asda and we now hope that rather than continuing to spend huge sums of money thwarting attempts to pay their staff what they are worth, Asda and the other major supermarkets pay their staff fairly, as these [employees] are also their customers and fair wages benefit all businesses and UK society in general.”

Leigh Day represents more than 30,000 shop floor staff across Asda, Sainsbury’s, Tesco and Morrisons in similar equal pay cases, which will be impacted by this ruling. If the supermarkets all lose their cases, orders to pay all eligible staff could amount to over £8 billion, according to Leigh Day.