If you work in the private sector and have always done so, there is a fair chance that you’ve probably never had to actually deal with an equal pay claim. You’ve probably understood the Equal Pay Act 1970 and the Equality Act 2010 that implement the principle that men and women should receive equal pay for equal work under three categories. The first is ‘like work’, the second is ‘work rated as equivalent’ and the third is ‘work of equal value’. You may have even had the odd employee from time to time mention the subject in pay negotiations or in a grievance but the chances are you’ve probably never actually had a claim to deal with, indeed in the last 16 years I can only remember one private employer that I’ve dealt with receiving an equal pay claim and two grievances on the subject.
You may have read in the news about a significant group of Asda retail store employees who are attempting to bring equal pay claims comparing themselves with distribution depot employees. Asda’s got 630 stores where 133,000 hourly paid employees work on Asda’s ‘retail’ terms. From the late 1980s onwards they began establishing their own distribution operations and it now has 24 centres with 11,600 hourly paid employees those employees are on ‘distribution’ terms. No distribution centres are on the same sites as any of the retail stores.
The terms in the retail and distribution sites are set by different processes. However, those processes are ultimately implemented and operated by the executive board of Asda which is in itself subject to governance by the American owners, Wal-Mart.
One of the first hurdles anyone has to overcome in an Equal Pay claim is to establish a comparison between themselves and their chosen comparators. The Asda employees have overcome that hurdle: an Employment Judge agreeing that there is a single source of accountability and generally common terms – the fact that there might be some historical or geographical differences or terms specifically related to working in distribution couldn’t be used by Asda as a defence.
These cases are reported as being worth in excess of a hundred million pounds. The legal bills alone are likely to be staggering as they’ve already been to the Court of Appeal once and it looks as though Asda are now appealing again.
The complexity of these cases and the length of time they take to deal with, begins to beg the question of whether the law is fit for purpose in this area. However more importantly from employers, the press attention on this issue is bringing this subject into a consciousness of large groups of employees who were formally unlikely to be aware that this law even existed. Undoubtedly other retailers will be looking at their systems and wondering if they could be next. Look at your organisation: do you have groups of staff where for one reason or another there is a predominance of one gender or another? How do those areas compare with other areas of the business which may have a different composition? If there are pay differences, can those be justified, and on what grounds? Can you be sure that whatever those justifications are, are not tainted by sex discrimination in themselves?