Morrisons is the latest supermarket to face a potential hefty compensation claim based on accusations it has paid its female employees less than its male ones. It follows a ruling last year against Asda, while Tesco could be facing the largest-ever equal-pay claim in the UK (£4bn).
The increasing number of equal pay claims against supermarkets has been motivated by the 2013 Supreme Court judgment in the case of North v Dumfries and Galloway Council. The female local authority support staff in schools and nurseries argued they were “in the same employment” as male local authority employees occupying manual jobs and won their case.
Supermarket employees in lower paid shop-front roles, the majority of whom are female, can legally compare themselves to employees in higher paid roles, such as in distribution centres, the majority of whom are male, because in law it has been found that the work involved in the shop roles is of ‘equal value’ to that in distribution centres.
An ‘equality clause’ is included in every contract of employment. It outlines that if any aspect of an employee’s terms and conditions is or becomes less favourable than a similar term in the contract of a person of the opposite sex (the comparator), the term, in these cases equal pay, is to be made no less favourable. The ‘equality clause’ also means any beneficial terms in the comparator’s contract shall be included in the claimant’s contract.
For an equality claim to be successful, the employee must prove they are employed either on ‘like work’, ‘work rated as equivalent’, or on ‘work of equal value’ to that of the comparator. If any of these are proven, the law presumes any difference in terms is due to sex discrimination and the contract will be modified by the equality clause. That is unless the supermarket can rebut this by demonstrating that the difference in terms is not to do with a difference of sex.
If supermarkets do wish to pay an employee less than an employee of the opposite sex, they must ensure the difference in pay is genuinely due to a material factor other than the difference of sex. This might be for personal differences between the employees, such as one being paid more for having greater length of service, or being entrusted with more responsibilities. No employer would able to defend a claim on the grounds it did not intend to discriminate.
The employee, as the claimant, not the supermarket, is responsible for choosing the comparator and they must be real, not hypothetical. Normally, the claimant can bring his or her claim during their employment or within six months of leaving their job. If successful, the tribunal may award back-pay or damages to the ‘arrears date’ - normally six years before proceedings began.
Supermarkets should be increasingly cautious about policies that involve a discrepancy in pay where ‘like work’ and so on is involved. Adopting such discrepancies is possible, but it needs to be done with care, as some of the biggest supermarkets are finding out to their cost and reputation - not every penny counts.
Louise Lawrence is senior associate at Winckworth Sherwood
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