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Equal pay on the shop floor: Asda Stores Ltd v Brierley

Thousands of Asda shop floor workers, who argued that their customer-facing roles are undervalued compared to warehouse workers, have won the latest round of a legal battle with their employer over equal pay, in a ruling has been hailed as a potential “game changer” for more than half a million retail workers.

The case that was originally heard by The Employment Tribunal (ET) in October 2016 was taken to the Court of Appeal where it was upheld on the 31st January 2019. It has been decided 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.

In his judgment, Lord Justice Underhill ruled that for both retail workers and distribution workers "Asda applied common terms and conditions wherever they work". It was also held that the claimants would be entitled to draw the comparison under European law because there was a “single source” for their, and their comparators’, terms, but declined to decide whether European law had direct effect in relation to equal value claims.

Lord Justice Underhill also added that Asda's application to appeal to the Supreme Court had been refused.

The hearing took into consideration three main areas of interest that are typical for equal pay cases: whether the job roles comparable; if so, whether they are 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?

If similar cases against the top supermarkets in the UK return the same result then current and former retail staff may be entitled to up to £10billion in combined back pay. This would have implications for 584,000 current workers and an unknown numbers of former workers at all the major supermarkets.

However, in order to claim successfully, workers will still have to demonstrate that the roles are of equal value and, if they are, that there is not a reason other than sex discrimination which means the roles should not be paid equally.

For more information, please get in touch with Claire or Rebecca in our employment team.

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