Court of Appeal rules Asda store workers can compare themselves to warehouse workers in pay claims

The Court of Appeal has this morning (31 January 2019) upheld the ruling that Asda store staff can compare their roles with those in the supermarket giant’s distribution centres in legal claims over equal pay.

Today’s judgment is a major step forward in the fair pay battle on behalf of tens of thousands of store workers who had already won in the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) against Asda’s attempts to block their legal claims.

The Wal-Mart owned Asda appealed the two previous rulings they lost, both of which found that lower paid shop workers, who are mostly women, can compare themselves to higher paid workers in Asda’s distribution centres, who are mostly men.

Today’s judgment follows a three-day hearing at the Court of Appeal which took place in October 2018.

The workers, represented by law firm Leigh Day, through the website equalpaynow.co.uk, argue that they should be paid equally to their colleagues in the supermarket’s distribution centres for their work of equal value.

In today’s judgment, handed down the Court of Appeal, judges ruled that in the vast majority of cases the law allows an employee to compare themselves with any employee of the same employer.

Leigh Day represents over 30,000 shop floor staff from the big four supermarkets – Asda, Sainsbury’s, Tesco and Morrisons - in similar equal pay cases which will be impacted by this judgment.

The total estimate of the claims against the big four supermarkets, if they lose their cases, and are ordered to pay all eligible staff could be over £8 billion, according to Leigh Day.

Equal pay cases have three main stages:

1. Are the roles comparable?
2. If the roles are comparable, are they of equal value?
3. If they are of equal value, is there a reason other than sex discrimination that means the roles should not be paid equally?

This judgment concerns the first stage of the process and the legal claims against Asda can now progress to assessing through a number of objective criteria, whether the roles are of equal value.

The Employment Tribunal ruled against Asda in October 2016, Asda then appealed this decision on ten different grounds. In August 2017 the Employment Appeal Tribunal ruled all points of their appeal unsuccessful.

Asda then appealed this ruling to the Court of Appeal and have today lost that appeal.

The case for Asda staff is the furthest along of all the supermarket equal pay claims and the judgments relating to the case will have implications for the other supermarket equal pay cases being brought by Leigh Day on behalf of tens of thousands of workers.

Linda Wong a lawyer from the employment team at Leigh Day who is working on behalf of supermarket workers in these equal pay claims, said:

“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 workers are also their customers and fair wages benefit all businesses and UK society in general.

“We call on Wal-Mart to lead the change for those hard-working store staff who are their workers and the public face of Asda.”