Opinion

Equal pay claims

25th February 2019

Equal pay claims

The basis of an equal pay claim is for the employee to prove that they are either doing the same work, ‘like’ work or work of equal value to a comparator of a different gender. The comparator must be working in the same employment as the Claimant, but being paid more.

The success or failure of an equal pay claim will depend on careful selection of actual comparators, to show a similarity in work and duties and a difference in pay and benefits received.

ASDA Stores Limited are currently defending a class action brought by circa 30,000 of their female supermarket staff, who allege that they are carrying out similar, or like for like work, or work of equal value to male comparators who work in the ASDA distribution and warehousing network. ASDA had argued that the warehouse and distribution staff could not be comparators, as the Claimants and their comparators needed to be working at the same establishment, or establishments where common terms are observed.

The Court of Appeal has now decided that common terms were observed between the warehouses and supermarkets, so the equal pay claims may now proceed to final hearing. The Claimants will have to establish that they carry out work of equal value to the distribution and warehousing comparators while ASDA will be looking to defend this claim.

While employers are likely to be aware of the unlawfulness of two employees doing the same work but receiving different pay, this highlights the possibility of employees bringing equal pay claims in less obvious circumstances.

To minimise the chance of any equal pay claims, it would be pragmatic for employers to review their pay structures to ensure pay equality between workers across different sites who carry out similar duties. Tribunals will consider how different contractual terms would be, if workers from one site were transplanted to do their own jobs (however unlikely that is in practice) at the other site. Employers who have concerns that such an activity would identify common terms across different sites or roles should review their pay structures.

If you have any concerns about possible equal pay issues please contact one of our specialists.

 

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