Reports suggest that Tesco is set to face a £4bn equal pay claim from store staff (mainly female) who allege that they should be paid the same as distribution centre workers (mainly male).
Asda and Sainsbury's are facing similar claims.
Can store work be 'equal' to warehouse work?
Potentially.
The Asda claims have been running for some time now, and the current stumbling block for those store workers is in proving that, in terms of the legislation, they are entitled to compare themselves to warehouse workers, who are based at different 'establishments'.
At the latest hearing, the employment appeal tribunal found that the store workers could make this comparison; but Asda has appealed, and the Court of Appeal will consider this point in October 2018.
However, the Asda litigation hasn't yet tackled the arguably more fundamental question of whether store work is 'equal' to warehouse work.
Under equal pay legislation, men and women are entitled to equal pay for equal work, which can be:
- Like work: work that is the same or broadly similar;
- Work rated as equivalent: in terms of a job evaluation scheme; or
- Work of equal value: work that is equal in terms of the demands made, by reference to factors such as effort, skill and decision-making.
In deciding whether jobs are of equal value, a tribunal might look at, for example, the nature of the work, experience, knowledge, responsibility, initiative, physical effort, mental activities, communication skills, training requirements and working conditions. Past examples include female speech therapists who successfully claimed that their work was of equal value to male pharmacists; and female packers in a frozen fish processing factory whose work was found to be of equal value to male labourers.
Realistically, however, a final decision on whether store work is 'equal' to warehouse work in the supermarket cases is still some way off, if indeed the litigation ever reaches that point.
Focus on gender pay differences – time for all employers to pause for thought?
The focus on gender pay differences shows no sign of abating. In fact, it is likely to intensify with the April deadline looming for large employers to publish their gender pay gap reports.
If you're due to publish a gender pay gap report, and haven't yet done so, our online HR and employment law site, Workbox, includes detailed advice on calculating the figures, writing an accompanying narrative, and potential steps to reduce any gender pay gap.
But for all employers, the high profile equal pay litigation and wider focus on the gender pay gap should give reason to pause and consider whether issues exist in your business, and if so, what risks these pose, which might include litigation, negative impact on employee relations and reputational damage.
With thanks to Lucy Deakin, trainee solicitor in Brodies employment team for her assistance in preparing this blog.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.