Asda begins Supreme Court equal pay fight with supermarket staff

Asda bosses have begun a Supreme Court equal pay fight with supermarket workers. More than 30,000 Asda store workers, most of whom are women, have brought equal pay claims. They follow complaints that staff working in distribution depots unfairly get more money.

Five Supreme Court justices on Monday 13 July began to consider whether Asda supermarket staff were entitled to compare themselves to distribution staff for equal pay purposes.

Comparable roles, disparity in pay

In 2016, an Employment Tribunal judge decided that supermarket staff were entitled to compare themselves. That decision was upheld by Court of Appeal judges in 2019. Asda bosses say the roles are not comparable and want Supreme Court justices to overturn the ruling by Court of Appeal judges.

Lord Pannick QC, who’s leading Asda’s legal team, told justices that the issue was whether Asda’s hourly-paid retail store workers could bring equal pay claims because they were “in the same employment” as Asda’s hourly-paid distribution workers. “Asda submits that the answer is no,” he said, in a written case outline:

Under domestic legislation, a claimant in an equal pay case may not compare her work and her pay with that of another employee who is employed, even by the same employer, in a different establishment unless the terms of those doing the claimant’s work are common irrespective of the establishment, or type of establishment, at which they work, and the terms of those doing the comparator’s work are common irrespective of the establishment, or type of establishment, at which they work.

Pannick said terms of working conditions depended on the type of establishment at which people worked, and added:

The different types of establishment operate in different geographical locations, in different industries and with different pay-setting processes.

Justices are considering rival arguments at a virtual Supreme Court hearing due to end on Tuesday 14 July.

Law firm Leigh Day has been instructed by bosses at the GMB union and is representing Asda supermarket workers. Lawyer Lauren Lougheed, an employment law specialist at Leigh Day, said she was hopeful that supermarket staff would win the Supreme Court fight and “prove once and for all that the roles are comparable”.

A long fight

Leigh Day lawyers say the supermarket workers’ fight will not end, even if Supreme Court justices rule in their favour. The employees will still have to show that supermarket and distribution roles are of equal value. They’ll also have to show that there is no reason other than sex discrimination for pay differences.

Lawyers say if store staff win, they could be entitled to several years’ back pay. Moreover, a Leigh Day spokesperson said if the Asda supermarket staff won, there would be implications for all major supermarkets. She said lawyers believed that if the Asda supermarket staff won, and 500,000 eligible staff across the industry made successful claims, then supermarket bosses could owe a total of £8bn compensation.