The Equal Pay Supermarket Sweep

In April 2021, we reported on the Asda equal pay case, where the Supreme Court ruled against Asda in its long-running equal pay battle between retail employees (mainly women) who claimed that they should have received the same salary as the company’s distribution staff (mainly men).

Then in June, the Court of Justice of the European Union ruled that Tesco shop workers could rely directly on European law to compare themselves to distribution centre workers.

There is also an outstanding case against Sainsbury’s. 

The latest supermarket equal pay claim involves Morrisons’ shop floor workers. An employment tribunal has ruled that Morrisons’ shop floor workers can compare themselves with the company’s warehouse staff.

Reminding ourselves of the law, an equal pay claim under the Equality Act 2010 relies on an employee being able to identify a higher paid comparator of the opposite sex performing equal work at either:

• the same establishment; or
• a different establishment where common terms and conditions apply, either generally or between the individual and their comparator.

In the case of Morrisons, retail staff (mainly female) typically earn £1 to £2 less per hour than warehouse staff (mainly male). This latest ruling allows the group of female retail workers bringing the action to compare themselves to their male counterparts in the warehouse.

The judgment has yet to be published, but the judge found that the distribution workers would have been employed on substantially the same terms if they had been employed on the same site as the retail workers and that, therefore, they were appropriate comparators.

The claim can now proceed, but the battle is not yet won. The retail staff will have to show that their roles are of equal value and that sex discrimination is the sole reason for the roles being paid differently.

With 25,000 workers potentially eligible, including former employees who have left in the past 6 years, the claim could be worth many £millions.

As mentioned in our commentary on the Asda case earlier this year, in order to avoid Equal Pay litigation, it would make sense for employers to periodically audit their pay scales, job descriptions and roles. It is certainly important to ensure that procedures are in place for reviewing pay regularly and resolving issues or queries quickly.