It’s been over fifty years since equal pay legislation was introduced and twelve years since the regulations were rebranded within the Equality Act. So how far have we come in the quest for equal pay? If you are a female store-based supermarket worker, not far, it would seem. However, in February 2022, a chink of light was provided for over 1,600 female Co-Op workers who cleared the ‘first hurdle’ in their supermarket equal pay claim against their employer.
Case background
The broad issue in this case arises from the disparity of pay between Co-Op’s shop floor workers, who are predominantly females, and their distribution centre colleagues, the majority of whom are male. Whilst the roles of the distribution staff are traditionally more physical and sometimes more difficult to recruit to, the store workers have a number of front-of-house and customer facing roles to include dealing with cash, lifting, packing, and re-stocking.
The pay disparity means that shop floor workers may be making between £1.50 to £3 less per hour compared with their distribution centre colleagues.
How can the workers succeed in their claims?
To win a supermarket equal pay claim in the UK there are three hurdles for female workers to clear:
- Demonstrating they are underpaid in comparison to their male counterparts;
- Establishing that the jobs for the same or associated employer are of the same or equal value; and
- The reason for the pay differential is discriminatory.
Co-Op’s concession
In the course of the proceedings, Co-Op have now provided a comparability concession in that they accept that those on the shop floor work in roles comparable to those of the distribution centre workers. So, the store based workers have crossed the first hurdle in the three step legal process.
Recent developments
The concession is unsurprising considering recent developments in other supermarket and retail cases.
We have seen a run of comparability decisions and concessions in the last year: both Sainsbury’s and Next made concessions regarding the comparability of their shop floor and distribution centre workers for equal pay purposes in 2021. In September, Morrison’s store-based workers won a tribunal ruling in their favour on the issue.
The comparator concept was further tested in the Supreme Court last year in the case of Asda Stores Ltd v Brierly & Others (some 35,000 others, in fact). This case focused on the issue of whether the shop floor and warehouse staff were part of the same “establishment”, in that Asda argued that a comparison was inappropriate due to the different terms and conditions of employment and geographical factors when they worked on separate sites. The Court applied tests to consider whether the terms and conditions of employment of the comparators had ‘common’ or similar terms or whether a hypothetical assessment could be applied. The workers succeeded on this point.
Tesco shop floor workers were also successful in seeking clarification from the Court of Justice of the European Union (CJEU) in 2021, where they successfully demonstrated that EU laws support equal pay for equal work. This judgment focused on the “single source” test in comparing the shop floor workers with those in a different “establishment” (the distribution center). The judgment considered whether the “single source” (the employer) has the power to address terms and conditions of employment to include pay disparity.
What next?
This recent developments in the Co-Op equal pay case and others pretty much secures the comparability hurdle for shop floor retail workers. This is encouraging, but there is still a long road ahead as the Claimants now seek to tackle the thornier issue that they are performing work of equal value to the comparator. If successful at that stage, it will be for the retail giants to present the “material factor” defence, namely that there is a justification for the pay difference that does not relate to sex. Following their recent concession, Co-Op maintained that its shopfloor workers are paid fairly and that there are justifiable differences in the roles, skills, experience and demands for each group of workers which are unrelated to gender. So those issues will have to be played out before the courts.
There will be sleepless nights ahead for retail owners. If the workers are ultimately successful, the tribunal could order pay parity but also award back pay which could run into the thousands of pounds for each worker.
The nature of equal pay litigation unfortunately involves a long journey and we are unlikely to read the final chapter in this story for many years. Nevertheless, hundreds of thousands of retail workers will be following these developments with interest and the industry will be focused on a review of its pay structures to ensure their workers are rewarded equitably notwithstanding gender.
This article first appeared in the Law Society Gazette and was written by Caroline Oliver, Senior Solicitor at didlaw.
