Pay ‘Asda’ be equal

The case of Asda Stores Ltd v Brierley and Ors was in the news this month.

Over 7000 female employees have brought an equal pay claim alleging a discrepancy in pay between those working in retail stores (mainly women) with comparators working in distribution depots (mainly men).

Although the reports concerned an arcane preliminary point (i.e. whether the claimant’s should be required to pursue their claims in the High Court as opposed to the Employment Tribunal) the way in which the case was described by the supermarket was striking. Lord Falconer QC, counsel for Asda, described the case as one of the most financially significant equal pay cases ever pursued in the private sector; which if successful would have repercussions across the retail trade as a whole.

While most employers would understand that men and women doing the same work should (broadly) receive equal pay, it is sometimes not appreciated that the legislation applies to work of ‘equal value’ as well, meaning employees doing seemingly very different roles could be entitled to bring claims of discrimination. These situations typically arise where one type of work is historically perceived as ‘women’s work’ and has been less well remunerated; there have been several such cases involving public sector employers.

Most employers are unlikely to face the kind of litigation now confronting ASDA, but it is certainly an issue think about. That is especially true now, since equal pay is likely to be much more widely discussed when the first gender pay gap reports (which large employers must now prepare and disclose) are released.

Dominic Bonham