More than 700 employees have won their bid to continue their long-running equal pay claims against supermarket giant, Sainsbury’s, and its in-store pharmacy chain, Lloyds, following a Court of Appeal decision.
Sainsbury’s argued that the previous Employment Tribunal decision should have rejected the equal pay claims on technical points (due to most of the Claimants’ names not being listed on early-stage paperwork and the failure to include the reference numbers of ACAS early conciliation certificates on initial paperwork).
Background
In the last few years, many supermarket workers have launched equal pay claims against their employers, including Asda, Tesco, Sainsbury’s, Morrisons, and other retailers. To date, none of these has reached a conclusion.
This case, as with other claims against retailers, concerns the pay of shop floor workers, which tend to be women, in comparison to warehouse workers, who are mostly men. Those working in the warehouse were typically paid more than shop floor staff. Retailers have argued that the employment roles are materially different.
Court of Appeal claim
The Court of Appeal considered an appeal by Sainsbury’s against the decision of the Employment Appeal Tribunal (EAT) that the claims could proceed in spite of the issues with the initial paperwork.
In rejecting Sainsbury’s appeal, Lord Justice Bean held that there was no evidence or reason to believe that the 700 workers had not followed the correct procedure.
He said:
“It has been repeatedly stated that employment tribunals should do their best not to place artificial barriers in the way of genuine claims. The complaint is no more and no less than that the employment tribunal claim form did not give the appropriate certificate number.
“Tribunal rules requiring claimants to provide this information are a ‘preliminary filter’ rather than an opportunity to strike out a claim.”
Adding:
“While a claim form must contain the name and address of each claimant and each respondent, it is sufficient for it to contain the number of an EC certificate on which the name of one of the prospective claimants appeared.
“I do not accept that it is part of the legislative purpose to require that the existence of the certificate should be checked before proceedings can be issued, still less to lay down that if the certificate number was incorrectly entered or omitted the claim is doomed from the start.”
In a joint statement, the Claimant’s legal representation said that they were pleased with the Court of Appeal’s decision, commenting:
“Women are still being paid less than men more than 60 years after introduction of equal pay laws.
“Sainsburys had a choice about defending these claims on their merits, or trying to reduce the number of claimants by making ‘highly technical applications.”
They also commented that they now hope Sainsbury’s begins to value their female store workers.
In response, a Sainsbury’s spokesperson commented that no gender pay gap existed at the retailer, stating:
“We’ve invested substantially in our colleagues over the last few years, including £205m of support in the last 12 months.
A reference to Sainsbury’s commitment in January 2023 to a minimum £11-per-hour pay rate. The statutory minimum wage for most UK workers rose to £10.42 per hour on 1 April 2023.”
What happens next?
For the next stage in the claims, independent experts have been instructed to assess the value of the work done by shop floor and warehouse workers at Sainsbury’s to ascertain if the work is “of equal value”.
Once this report has been released, further hearings will take place to consider:
- Whether the ET agrees with the report findings concerning whether the roles are of equal value; and
- Assuming the work is of equal value, another hearing will then consider if the retailer has a legitimate reason for not paying male and female workers equally that isn’t related to sex.
Comment
Where an employee is successful in a claim for equal pay, they will be entitled to compensation which will usually be arrears of what they should have earned, had they been paid equally. For the purposes of calculating these arrears, an Employment Tribunal can look back for up to six years.
As referenced above, other major UK retailers have been involved in long-standing equal pay disputes with shop floor employees, who have put forward arguments like that of Sainsbury’s employees in this case.
Should the Courts and Tribunals rule in favour of the employees in all of these cases, it is estimated that payouts from retailers could amount to roughly £8 billion.
How can we help?
Laura Kearsley is a Partner in our expert Employment Law team.
If you would like any advice concerning the subjects discussed in this article, please contact Laura or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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