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In Asda v Brierley, over 7,000 (mostly female) employees have brought equal pay claims against the supermarket Asda.
The case has already reached the Court of Appeal on a preliminary issue and has been described by Lord Falconer QC, counsel for the supermarket, as 'by far the most important, complex and financially significant equal pay claim ever pursued in the private sector'. In light of its billing, we expect to be reporting pretty frequently on the case as it proceeds. The case will be on particular interest as it highlights the increasing focus on equal pay in the private sector.
The claimants work in hourly paid jobs in the supermarket's retail stores. They claim that the work they do is of equal value to work undertaken - overwhelmingly by men - in Asda's distribution depots. They claim that, despite being of equal value, they are paid less than those working in distribution, and that this amounts to a breach of teh equal pay clauses of the Equality Act 2010.
The claimants issued their claims in the Employment Tribunal (ET). Asda sought to challenge this, arguing that, given its importance, complexity and that it is 'probably the case which will have the single largest effect on the economy of the UK in recent years', it would more appropriately be heard in the High Court.
The ET has no power to directly transfer the claims to the High Court and, as such, Asda applied for an indefinite stay of the claims that would effectively compel the claimants to re-issue the claims in the High Court.
The application for a stay was rejected by the ET and, subsequently, the Employment Appeal Tribunal. Asda therefore appealed the decision to the Court of Appeal.
The Court of Appeal refused Asda's appeal. It acknowledged that the ET had broad discretionary case management powers including, in appropriate cases, ordering an indefinite stay of proceedings.
However, the Court of Appeal held that a stay could not be ordered simply because another court was considered to be an appropriate forum. In reaching this decision, the Court of Appeal noted the prejudice that would be suffered by the claimants including necessitating them starting their claims again, additional stress, additional court and legal fees and the greater risk that they may be subjected to costs awards in the High Court if unsuccessful.
Equal pay issues in the private sector rank high on the list of concerns of many employers, especially as the focus on this area is increasing with the drafting of the gender pay gap regulations.
This case is unlikely to be a one-off, and further equal pay litigation against private employers should be expected. With this in mind, employers should act proactively by undertaking an audit of staff and pay, reviewing the results, considering the reasons for any discrepancies that are found, and whether those reason are potentially discriminatory and addressing any risks that are identified.