Traditionally the vast majority of equal pay claims have been in the public sector. However, an equal pay case brought against retailer Asda has the potential to change this.

What is the claim about?

Currently over 7000 equal pay claims have been raised against Asda. The claimants (both male and female) are store workers who are comparing themselves with colleagues working in distribution centres. They are arguing that they are paid less because historically work done in the stores was seen as 'women's work' and of less value than work in the distribution depots, traditionally perceived as men's work.

Asda is defending the claims on the basis that pay rates at stores and depots differ for legitimate reasons including market rates. The appropriateness of the comparators and whether the jobs are of equal value is also in dispute.

Should the claims be heard in the employment tribunal or the High Court?

The employment tribunal was asked by Asda to exercise its case management powers and 'stay' (freeze) the tribunal case indefinitely, on the basis that the litigation was too complex and significant for the retail sector for a tribunal to determine.If granted this would have forced the claimants to go to the High Court to pursue their claims.

Last month the Court of Appeal ruled that the claims should be heard in the tribunal because the case does not raise significantly different issues to previous public sector equal pay claims; and it would not be fair to require the claimants to start proceedings again, with the additional cost and stress that would have ensued.

What happens next?

The case is now proceeding though the employment tribunal system and we will update you when the tribunal's decision is available.

Gender pay gap reporting

Recent indications are that the new gender pay gap reporting obligations for businesses in the private and voluntary sectors employing at least 250 employees will come into force as planned. We are expecting guidance in September, final Regulations in October and a requirement to publish a report by April 2018 in respect of pay data as at April 2017. Our earlier blog post considers what will mandatory gender pay gap reporting mean for you?

Please get in touch with your usual contact if you would like any advice or support -the employment team at Brodies has significant experience of dealing with a range of issues that arise in the context of equal pay.


Julie Keir

Practice Development Lawyer