The claim began after the retailer’s shop-floor workers, who are predominantly female, discovered they were being paid less than distribution workers who are predominantly male.
The crux of the claim is that the shop-floor workers believe they carry out “work of equal value” to those who work in the distribution centre, and, therefore, that there should be no disparity in pay.
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Co-op has conceded “comparability” which means that it has been conceded that the shop-floor workers can compare their roles with the distribution workers.
It is assumed that Co-op was persuaded to concede the comparability point due to the ruling in June 2021 by the Court of Justice of the European Union (CJEU) in favour of Tesco shop-floor workers, which in turn followed the judgment in March 2021 in favour of Asda shop-floor workers.
The workers’ argument in those cases hinged on the single source principle, whereby it could be shown that the inequality in pay was attributable to a single source such as the Tesco Board.
This concession does not mean that the Co-op shop-floor workers are home and dry with their claims (equal pay claims are notoriously complex and time consuming), but it does mean that their claims can move forward to the next stage of the process.
The Co-op shop-floor workers still need to establish whether the work carried out by them is (or was) of equal value to the work carried out by the distribution workers – the burden of proof is on the shop-floor workers at this stage.
Work of equal value is work that is equal in terms of the demands made on both the shop-floor workers and the distribution workers.
Determining equal value is an art not a science and invariably the employment tribunal needs expert assistance in determining this issue in the guise of an independent expert – appointed by ACAS.
The expert’s role is to assist the tribunal in evaluating the roles by reference to a set of factors such as physical effort, skills and decision-making to determine equivalence.
A job description needs to be prepared for each party – similar to a witness statement – which details every element of each role in great detail.
We have seen job descriptions in equal pay cases run to over 40 pages. Each party can ask questions of the independent expert and/or instruct its own partisan expert if it seeks to challenge the independent expert’s findings. The process is far from straightforward.
If it is concluded that the roles are of equal value, the burden of proof then shifts to Co-op to prove that the difference in pay is due to a material factor unrelated to sex.
It will remain to be seen what arguments could be put forward in this context.
There is no doubt there is still a long way to go with this litigation and the issue of equal pay within the retail sector is here to stay for the foreseeable future.
We understand the pay differential claimed by the Co-op shop-floor workers to be up to £3 per hour. Up to six years back pay, plus equalisation of pay moving forward, can be claimed in an equal pay claim so the stakes are very high.
Daniella McGuigan is a partner at Ogletree Deakins
