The Supreme Court had already ruled that it was possible for the female-dominated retail roles to be compared with male-dominated distribution centre roles, and an employment tribunal ("ET") has now found that many of those female roles are of equal value to the male roles for the purposes of equal pay.
The judgment in Mrs S Brierley & Others v Asda Stores Limited is the latest instalment in a case that has been running for over ten years, with approximately 60,000 claims having been made.
The purpose of the ET hearing was to determine whether the roles were of equal value, following many days of detailed evidence about the job content of the lead claimants and comparators. All the lead claimants were compared to all the comparators (so claimant 1 would be compared to all 17 comparators and so on). At the end of the hearing, the tribunal concluded that two of the lead claimants had failed to establish their work was of equal value to any of the comparators (although there is the possibility that part of the judgment will be appealed, as it could adversely affect 11,000 claimants). One of the lead claimants was found to have been of equal value to all the comparators, and the others were of equal value to some but not all of the comparators.
Next steps
This judgment is not the end of the matter. Asda still has the opportunity to successfully defend the claims by relying on the "material factor defence". The material factor can be a key battleground in equal pay cases. Commonly argued material factor defences include market forces, pay increases to retain employees, length of service or experience and performance-related pay.
Press reports have suggested that individual claims may be worth up to £20,000, and overall, Asda may face a bill amounting to £1.2 billion. A number of other well-known stores are facing similar claims and other industries may face similar risks. Any businesses that believe they may be at risk should be looking across their pay structures to identify whether they could be open to challenge, and any unjustifiable discrepancies should be addressed.
The future
This case also highlights some of the difficulties with bringing equal pay claims. These claims were first brought before a tribunal in 2014. They have already been through the Employment Appeal Tribunal, the Court of Appeal, and the Supreme Court, and eleven years later the parties are still litigating. The hearing that this judgment arose from lasted 58 days, involved King's Counsel on both sides, junior counsel, independent experts (who gave most of the evidence during the hearing), and over 11,000 pages of documents. The process is long, complex, and expensive.
While we are still awaiting sight of the Equality (Race and Disability) Bill, we already know that it intends, among other things, to extend equal pay rights to workers suffering pay discrimination on the grounds of race or disability. It will be interesting to see what is brought forward as there is certainly an argument that it may be better to review how the equal pay regime works and use this as an opportunity to simplify the whole system, rather than simply extend the existing regime to include race and disability.
Sarah Gilzean has previously written about this topic, read more here.
