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The Weekly paper of the New Communist Party of Britain

Equal pay victory, sort of

by New Worker correspondent

THE SUPREME Court has issued a ruling which states that largely female workers employed in Asda supermarkets are able to use the employment contracts issued to the largely male depot workers as a valid comparison in their long-running equal pay claim.

This is the final stage of legal action that has been going on for years. The 35,000 claimants argued that they had received less pay from 2008–2014 than distribution employees employed at the company’s depots.

Asda claimed that the distribution employees, who worked at depots separate from the retail arm of its operation, did not have common terms with the retail workers. They pointed out that before 1988, Asda’s distribution operation was entirely outsourced to third parties. The terms of employment of its distribution workers were inherited from the third parties and thereafter set by different processes to the ones used by the retail stores. It was common ground that wages for the two groups were fixed by different methods and that retail pay was generally less favourable than distribution pay.

Their lords and ladyships have now rejected this, but with an important qualification. They said that: “This appeal does not mean that the claimants’ claims for equal pay succeed. At this stage all that has been determined is that they can use terms and conditions of employment enjoyed by the distribution employees as a valid comparison. The claimants must still show that they performed work of equal value.”

That might be difficult because in many Equal Pay cases the devil is in the detail. Asda have indicated they will argue that work in draughty warehouses is different from that in more agreeable supermarkets. The difference between male outdoor workers such as refuse collectors and female home helps working indoors was long a sticking point in the long-running equal pay Glasgow council dispute. The lawyers always do well in such situations.

GMB, the main union involved, optimistically hailed the ruling as a “massive victory”, saying that workers could win as much as £500 million in compensation. The union complained this was fourth time Asda has lost a court battle on this issue from the time in 2016 when they appealed against a 2016 Employment Tribunal ruling.

Susan Harris, GMB’s Legal Director, said: “This is amazing news and a massive victory for Asda’s predominantly women shop floor workforce. Asda has wasted money on lawyers’ bills chasing a lost cause, losing appeal after appeal, while tens of thousands of retail workers remain out of pocket. We now call on Asda to sit down with us to reach agreement on the back pay owed to our members – which could run to hundreds of millions of pounds.”

Lauren Lougheed, from the lawyers Leigh Day, added: “We are delighted that our clients have cleared such a big hurdle in their fight for equal pay. Already an employment tribunal, the Employment Appeal Tribunal and the Court of Appeal ruled that these roles can be compared, and now the Supreme Court has come to the same conclusion. It’s our hope that Asda will now stop dragging its heels and pay their staff what they are worth.”

That is unlikely. Asda pointed out that this is only the first stage of a three stage Equal Value lawsuit. The second stage, presently underway, deals with whether store and distribution roles are of equal value, and the third stage will see if there is a reason, other than gender, why the roles should not be paid equally.

In response to the ruling, Asda said: “We are defending these claims because the pay in our stores and distribution centres is the same for colleagues doing the same jobs, regardless of their gender.

“Retail and distribution are very different sectors, with their own distinct skillsets and pay rates.”

So, it looks as though it is time to put away the champagne and start doing some organising. A strike by supermarket workers might push things along faster than yet another court case, but nobody seems to have thought of that.