Law firm Leigh Day has announced that it is taking legal action against a major supermarket chain on behalf of over 400 workers. 

The issue concerns in-store jobs, such as check-out staff being paid less than warehouse workers and those in distribution centres. It is claimed that in this particular business (as is the case with many retailers) the in-store jobs tend to be carried out by female staff members, whereas the warehouse and distribution centre jobs are male dominated. This has led to claims that the supermarket is in breach of equality laws by failing to pay equally for work that is said to be similar or of equal value in terms of demands and skills. Under the Equality Act 2010, where an employee can show they are doing like work, work rated as equivalent (under a job evaluation scheme) or work of equal value to an employee of the opposite sex employed by the same employer (or an associated employer in some instances), they are entitled to the same terms (in relation to pay and benefits) unless the employer can demonstrate that there is no discrimination on grounds of gender and that the difference in pay is for legitimate reasons unrelated to sex discrimination. 

This development could lead to further action being bought against other supermarkets and retail businesses whose workforce is structured similarly, ie with female dominated in-store jobs and male dominated groups of employees working out of their own distribution centres. There may be a range of reasons which can be identified to explain any pay differences but these will need to be examined critically to identify whether any are tainted by sex or may be operated in such a way as to amount to indirect sex discrimination i.e. disadvantaging a greater number of women than men. As a result of recent developments in case law, in addition to claims being brought in the Employment Tribunal by existing employees or those who have left recently (given the six month time limit) claims can date back up to six years (five in Scotland) if brought in the county court. Any successful action could entitle claimants to six years’ back pay equal to the earnings difference as well as a declaration entitling them to pay equality for the future earnings. 

Whilst equal pay claims within the public sector have been commonplace in the past decade, particularly large-scale group actions, this is a significant development for private sector organisations and raises a very real risk for many such businesses.