Blog: What does ASDA mean for me?

Joanne Sefton, Specialist Employment Lawyer at Menzies Law

Last month, the Manchester Employment Tribunal handed down its decision in the latest skirmish of the mammoth, on-going, ASDA equal pay battle.

It’s a dense 54-page judgment and the claimants won. BUT this judgment wasn’t determining whether they have been paid unlawfully. It wasn’t even determining whether they did work of equal value to their male comparators. All that is still to come.  All that this particular decision establishes at this stage (assuming it is not overturned on appeal – watch this space) is that female shop workers in the business’s Retail division are permitted to compare their jobs and their pay to male depot workers in ASDA’s Distribution division.

There are complex rules around which male colleagues a female equal pay claimant can compare herself to. It isn’t enough to say that you work for the same employer.  Unless you also work at the same ‘establishment’ (anyone remember the fun and games we had with that word last year in the Woolworths case?), you are only permitted to draw comparisons with men on the same terms and conditions. Or, crucially in this case, terms and conditions derived from a ‘single source’.  The idea of a ‘single source’ is a rather vague European one. This has already been the source of a healthy amount of litigation.

Different divisions of ASDA have their own internal processes for setting employment terms and conditions. But the Employment Tribunal decided that, since ultimate central control sits with the same ASDA Executive Board, that fact was sufficient to take the view that all ASDA employees’ terms of employment come from one source. Tellingly, the judgment observes that if there was unlawful inequality in any employment terms anywhere in ASDA, it would be in the power of the Executive Board to rectify it.  On that basis, it is difficult to think of many ‘same employer’ cases, outside the central government and the NHS, where a ‘single source’ argument would not succeed.

This is a complicated decision, and this blog is not the place to debate its details and nuances. The critically important message is that it widens further the scope of comparison between workers in equal pay claims. This is in line with a history of decisions doing the same thing in a myriad of ways. And it makes it even more likely that claims will be permissible across ‘gender ghettos’. I.e. in occupational segregation situations – think ‘dinner ladies and dustmen’.

In the private sector, as the public sector, work historically done by women has also been low paid. Going beyond that, objectively under-valued (when expert analysis is applied). There’s a long way to go for the ASDA claimants. However, an ultimate victory would potentially impact on the pay of 130,000 Retail sector workers in the business.

As various local authorities have already discovered, allowing ‘gender ghettos’ to persist in your pay structure can be a very costly mistake. We predict it’s a lesson that many in the private sector will be learning the hard way in coming years.

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Joanne Sefton, Specialist Employment Lawyer at Menzies Law