Asda workers have won the battle, but there’s a war to come

The Supreme Court decision demonstrated how equal pay cases can be dragged out for years

Ronnie Fox

Thursday April 01 2021, 12.01am, The Times


The principle of equal pay for equal work regardless of gender is generally accepted. The devil is in the detail.

Employees in Asda’s retail business are predominantly women; most employees in Asda’s distribution depots are men. The depots are on separate sites from the retail stores; pay rates in those depots are higher than in the retail stores.

Asda’s retail employees are claiming equal pay and at the end of March the Supreme Court held that the claimants are entitled to treat Asda employees working in distribution depots as comparators: the terms of employment enjoyed by distribution employees are a valid comparison. That decision raises three significant issues.

First, Lady Arden said that case had a short and direct answer based on the court’s 2013 ruling in Dumfries and Galloway council v North. She insisted that the parties to the Asda proceedings had introduced irrelevant evidence and created unnecessary complications. The other members of the Supreme Court agreed.

The Asda case had become markedly over-complicated. Years have passed and lengthy hearings have taken place in the employment tribunal, the appeal tribunal, the Court of Appeal and the Supreme Court just to obtain a short, simple and readily available answer. What does that say about our legal system?

Secondly, some commentators overreacted to last week’s decision. The GMB union called on Asda to negotiate an agreement on back pay — perhaps amounting to millions of pounds — which they said was “owed” to their members. One employment lawyer stressed the importance of the decision, describing it as a “watershed moment” for the rest of the retail industry.

In fact, the Asda store workers will only win if in future proceedings they can show that their work is of equal value and that different pay is not a result of a genuine material factor that is not discriminatory on the ground of sex.

Why have these major hurdles and Asda’s explanations — that retail and distribution are different sectors with distinct skill sets and pay rates and that the pay is the same for colleagues doing the same jobs, regardless of gender — been widely ignored? The claimants will have their work cut out and the fight could yet continue for years.

Thirdly, parties in a dispute often ask solicitors for advice on the legal strengths of their case and the prospects of winning. The Asda equal pay case demonstrates how difficult it has become for any lawyer to forecast with confidence the outcome of litigation — or to assess whether ultimate victory will justify the fight.