can Morrison’s shop-floor staff use the supermarket’s distribution centre staff as comparators for the purpose of an equal pay claim?
Yes, ruled the Employment Tribunal recently in a group action claim which could be worth up to £100 million in back-dated pay.
The Equality Act 2010 provides that in order to bring an equal pay claim an individual must be able to identify a more highly paid comparator of the opposite sex performing equal work at either:
- the same establishment; or
- a different establishment where common terms and conditions apply.
Shop-floor staff at Morrisons on average earn around £2 an hour less than distribution center staff. Shop-floor staff are predominantly female whereas distribution center staff are predominantly male.
Morrisons argued that because distribution centres each have their own collectively bargained terms and conditions, staff from one site couldn’t compare themselves with staff from another site in the same group for the purpose of an equal pay claim.
Employment Judge Davies disagreed, stating that it “It is not necessary for the claimants at this stage to specify an RDC [Regional Distribution Centre] to be compared with each supermarket store. They rely on comparators working at all the RDCs and the question at this stage is therefore whether a worker from any of the RDCs who moved to a depot at any of the stores would be engaged on broadly similar terms… I find that they would”.
It’s good news for the shop-floor staff, but they have only cleared the first hurdle. To clear the second hurdle, they will have to demonstrate that their roles are of equal value to the those of the distribution centre staff. The third and final hurdle will only be cleared if Morrisons then fail to prove that there is a reason other than sex discrimination that the two jobs are not paid the same.
Other major UK supermarkets, such as Tesco, Sainsbury’s and ASDA are currently facing similar equal claims as is the retailer Next. Retailers across the country will be monitoring developments closely as will I.
This blog was written by Jack Dooley, Paralegal at didlaw.