The decision of the Employment Appeal Tribunal in the ASDA stores equal pay litigation has implications for other organisations in thew retail sector says Matthew Potter, Employment Law Partner with Howes Percival. The appeal upheld the Tribunal's decision that female claimants in retail stores can compare their pay with higher paid men in distribution centres. At this point ASDA has been given permission to appeal to the Court of Appeal so this might not be the final word on the issue.
However, Potter explains the case concerns around 7,000 claimants working in the retail division of ASDA who assert that they do work of equal value with workers in ASDA's distribution division, who are predominantly male. ASDA tried to argue that because the stores and distribution centres were in different locations, with different pay arrangements, female retail workers could not compare their pay with the men in the distribution centres. However, the Tribunal found that there were common terms and conditions across the different locations so the claims could proceed (see our newsflash of 17 October 2016). Asda appealed but the Employment Appeal Tribunal has upheld the Tribunal's decision.
Potter says the Employment Appeal Tribunal held that a comparison was permitted because:
•The Claimants' and comparators' pay, and terms and conditions, come from a "single source";
•There are common terms and conditions across the different locations; and
•Comparison may be made with a hypothetical comparator where no actual comparator works at the claimant's establishment.
“The claimants must still show they carry out work of equal value to their males comparators in the distribution centres,” says Potter. “If they succeed in that argument then ASDA will then have the opportunity to show that it has a "material factor defence" which could justify the pay disparity.”