Women and men who do comparable jobs for the same employer have for decades been entitled to equal pay – but the basis on which such comparisons can be made has been a perennial subject of legal debate. The Court of Appeal gave authoritative guidance on the issue in a case concerning about 30,000 supermarket workers.
The retail workers, mainly women, argued that their roles could be validly compared with those performed by mainly male workers employed in the supermarket chain’s distribution depots. The chain, however, argued that its distribution and retail sectors were fundamentally different, having evolved separately over time. The physical environment of its depots was very different from that of its stores and the two categories of workers had profoundly different functions and skill sets.
Lawyers representing the non-unionised retail workers argued that the terms and conditions of their unionised distribution colleagues were superior to theirs, although their work was of equal value. Following a preliminary hearing, an Employment Tribunal (ET) found that the retail workers were entitled to compare themselves with their distribution colleagues for the purposes of the Equality Act 2010. That decision was subsequently confirmed by the Employment Appeal Tribunal.
In dismissing the chain’s challenge to that outcome, the Court disagreed with aspects of the ET’s reasoning, but found that it had reached the correct result. In posing the question whether there were common terms and conditions generally as between the retail and distribution workers, it had conducted wholly the wrong exercise. The issue for the ET to decide was whether broadly common terms applied to retail and distribution workers, regardless of where they worked. Given that no retail workers were in fact employed in depots, or distribution workers in stores, that question was necessarily hypothetical.
Detailed argument and evidence going to minute comparisons between the terms which applied to the two sets of workers were thus irrelevant and the preliminary issue could have been resolved on the straightforward basis that the chain’s terms for retail and distribution workers both applied wherever they worked. The Court noted that it would be no credit to the law if the kind of elaborate and confusing exercise the ET had been encouraged to undertake was required in order to establish whether the statutory comparison could be made.
The retail workers’ claims were primarily brought under the Equality Act but, if they prove well-founded, some of them will be entitled to arrears of pay going back to before the Act came into force. Such claims would be assessed under the Equal Pay Act 1970. Issues as to whether their work is of equal value to that of their distribution colleagues and, if so, the extent of any differential between their respective pay and terms of employment, remain to be resolved by an ET.