Asda Workers seek to ‘Pocket the Difference’

The Equal Pay Act (Northern Ireland) 1970 has been in force for in excess of 40 years however the gender pay gap and ‘the right to equal pay for equal work’ still remains a live issue in workplaces in Northern Ireland, Great Britain and beyond.

The purpose of the Equal Pay Act was to imply a gender equality clause into all employment contracts thereby modifying any terms less favourable to females performing like work, work rated as equivalent or work of equal value to males in the same workforce.

In order to successfully pursue a claim against their employer an employee must;

1. Identify an appropriate comparator
2. Prove that their comparator is employed to carry out like work, work of equal value or work rated as equivalent
3. Establish that their terms are less favourable
4. Establish that any difference is on the grounds of their gender and not some other ‘material factor’

Mass equal pay case law has largely centred on the public sector over the years and in particular local councils where male dominated roles such as refuse collectors and street cleaners historically attracted higher salaries than female dominated jobs such as clerical workers, care workers and cleaners. The recent preliminary judgement in favour of thousands of female workers against Asda however has brought this issue into the private sector on a scale not seen before.

The Tribunal has confirmed in this case that female shop floor workers can compare themselves to males working within Asda distribution centres who the Claimants allege typically earn between £1 and £3 more an hour. This ruling represents a significant step for these workers however it is not the end of the matter. They must now proceed with their claims and seek to convince the Tribunal that the work they perform is ‘work of equal value’ to their comparators. In order to succeed they will need to establish that their roles require an equivalent degree of effort, skill and decision making to that of the distribution centre workers.

If the workers are successful in establishing that they perform work of equal value Asda may however be able to successfully defend these claims by providing evidence to show that the differential in pay is not motivated by gender but by some other ‘material factor’. Common material factors which employers seek to rely on are market forces, red circling, different skills, qualifications etc.

As the two week hearing required for this preliminary judgement clearly demonstrates, equal pay claims on this scale are complex and lengthy processes. It is therefore likely to be a significant period of time before any of these claims are concluded. A favourable outcome for the workers involved, believed to be in the region of 9,500, will have significant repercussions for Asda with backdated payments and the introduction of adjusted pay terms across its business estimated to cost up to 100 million pounds.

With the Claimants’ legal team confirming that they are in the process of taking a similar action for Sainsbury’s workers it is clear that this issue will not be limited to Asda in the private sector. We would therefore recommend that all employers review the terms, conditions and the payment model used for their workforce to identify whether any historic pay disparities might leave them exposed to future claims. Where necessary employers should carry out job evaluations to ascertain whether any pay differential is justified on the basis of the duties performed.

As always we recommend that you take legal advice before taking any action.

If you require any advice in relation to discrimination within the workplace please contact Millar McCall Wylie on 02890 200050 and ask to speak with a member of our Employment Department.


 

 

 

 

 

Image courtesy of jimbophoto at FreeDigitalPhotos.net

 

 

 

 

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