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Asda Equal Value claims latest

01 September 2017 #Discrimination

Last October, we reported the Employment Tribunal decision that 7,000 predominantly female in-store Asda employees, who do work such as shelf-stacking and checkout roles, have common terms of employment with predominantly male warehouse-based employees, despite the different places of work and different job descriptions for the roles in question.

Asda appealed to the EAT. Yesterday, Asda’s appeal was comprehensively rejected. The EAT stated that:

  • claimants can directly rely on EU law in equal value claims;
  • A single source of pay and conditions for both claimant and comparator, which permits a comparison for equal pay purposes, is not an additional hurdle to be overcome in all cases.
  • In deciding whether there are common terms of employment, a Tribunal can consider the similarity between the claimant’s other contractual terms and those of the comparator as well as the genesis of those terms.
  • Even if no comparator works at the claimant’s workplace, comparison is permitted if a hypothetical employee at the claimant’s workplace would have been employed on broadly similar terms to the actual comparator.

This does not mean that the in- store workers are entitled to equal pay. It means that, subject to appeal, the case can proceed to the next stage, which is a hearing to decide if the roles really are of equal value for the purpose of equal pay law.

There is every indication that Asda will now appeal to the Court of Appeal. This is unsurprising given that the claims, if successful, could cost Asda up to £100m.

One other legal avenue by which Asda hoped to reduce the number of equal pay claims it faces may now be effectively closed. In June, the EAT found that including multiple claimants doing different work on the same equal pay claim form was a breach of the Employment Tribunal Rules. However, the central reason given for this was connected to the underpayment of Employment Tribunal fees, which have since been found to be unlawful.

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Russell Dann

Russell Dann
Solicitor

E: rdann@clarkslegal.com
T: 0118 960 4653
M: 0792 014 4165