Wendy Arundale worked at the Asda store on North Street, Middlesbrough for 32 years, two weeks and one day before retiring, aged 63, in July 2019. She had spent decades on a revolving door of different jobs; working overnight “twilight” shifts, at the checkouts, and a stint as the designated events colleague, the person responsible for raising awareness of the brand in the local area, hosting charity fundraisers with politicians and securing positive coverage of the supermarket.
Now, in her second year of retirement – in between training her award-winning Saluki Collie dog on the agility course – Arundale has found herself on the other side of the brand PR war as part of a 38,000-strong group of employees taking on the Leeds-headquartered supermarket in the Supreme Court. Asda, owned by US retailer Walmart since 1999, has become the subject of one of the UK’s largest ever equal pay claims against a private employer.
The case against Asda has been through a series of legal hurdles since 2016, starting with just 21 claimants it has now wound its way to the door of the Supreme Court. On 13 and 14 July, five Supreme Court justices listened as Asda argued its case – that there is no equal pay issue to answer. But judges have already ruled in favour of the workers at an employment tribunal, a tribunal appeal and then again by Court of Appeal judges in 2019. This is Asda’s last chance to overturn it.
The crux of the issue is to determine whether Asda supermarket staff, who are nearly all women, should be paid equally to distribution staff in the depot, who are predominantly, and historically, men. Depot staff are paid more than supermarket staff – between 80p and £3 per hour difference depending on geographic location. The Supreme Court is being asked to decide whether employees like Arundale on the shop floor were doing work comparable to their depot counterparts.
Since the Equal Pay Act of 1970 men and women in the UK have been entitled to equal pay for equal work, whether in the same roles or in roles of equal value and skill. As a result, if the court finds that the supermarket work of employees like Arundale is comparable to those in the depot, lawyers will make the case that the only reason for the discrepancy was sex discrimination, giving them the right to claim compensation.
Arundale first found out she was being paid less than depot workers when her husband Neil applied for an events colleague role in the depot in 2007 – Arundale had been doing an events role in the store for six years – and his pay was higher. “It was a wind-up,” he shouts in the background of our phone conversation. “It was definitely unfair,” Aurndale tells me. “Why should he be paid more than me when he was doing the same job?”
Now Arundale wants back pay that she feels she is entitled to – especially as she has no pension to speak of – to compensate for the years of disproportionate earnings to those in the depot who she says were doing the same work, just in a different location mainly staffed by men. “We aren’t back in the 18th century, we’re 20th-century people, why are we being treated so unequally?” she says.
The majority of claimants in the Asda case are women because of the demographic makeup of the supermarket workforce – according to the latest Office for National Statistics (ONS) data on women in the labour market published in 2013, 63 per cent of customer-facing sales and service roles in the UK (like checkout operators) were staffed by women while only 11 per cent of depot-style plant roles were filled by women.
Janice*, 74, from County Durham, another claimant who worked in the supermarket recalls “so much tension” when Asda opened a large warehouse in Washington, Tyne and Wear because there was an awareness of the pay grades being different – a fact established through water cooler chat and interconnected local communities. “Everyone knew we were doing the same jobs in the store, but the men were getting £3 more an hour. Can you believe it? It was horrible. Everybody was on edge. They just got away with it.”
Asda isn’t the only supermarket facing this – law firm Leigh Day, who are representing the Asda claimants, say they are also representing Tesco, Sainsbury’s and Morrisons in similar cases. Reasons for this industry-wide problem can largely be explained by women tending to historically occupy these roles: partly due to the flexibility and part-time opportunities offered in stores that were more compatible with women’s primary role being seen as housekeepers (not breadwinners), as well as a cultural discomfort with women doing physical labour in a male occupied space rather than a “female space” like a shop.
The legacy of paying women less to do these front-of-house type roles means that it's not just women who have been caught in the aftermath. There are also a number (albeit far fewer) men involved in the equal pay claim.
Peter Anderson, 65, from Kettering, worked as a delivery driver for Asda for nine years before his retirement in August. The former journalist earned the same as other workers on the shop floor – £9.18 per hour. He only discovered he was being paid less than depot employees by hearing about their pay on the grapevine when some colleagues transferred.
Anderson is in the minority, compared to the male majority in the warehouse. For the lawyers to successfully argue that shop workers are paid less because of sex discrimination it doesn’t matter that men like Peter are paid less too because they will argue his role has fallen victim to the precedent of paying female-centric shop roles less than depot roles.
“I think there is an old-fashioned idea that working on a checkout, for example, is easy work. That women would come speak to their favourite customers, or earn some money for fripperies... it’s so outdated,” he says. “I know the work they do in the depot and it’s probably less onerous than what I did on the roads. Yes they’re loading stuff onto vans and that is physical work but so is lugging one hundred loads of customer shopping around the byways of Northamptonshire in the bad weather,” he adds.
Anderson admits it is a “strange” feeling to be part of an equality claim which is “so obviously aimed at advancing the interests of women” but that he feels “in the same boat”. “Historically I think they thought they could get away with not paying women as much,” he says, which – without a brand willing to pay the large tab for subsequent adjustment – has led to the current situation.
Indeed a win for the supermarket employees could mean a large bill as workers become entitled to several years of backdated pay. It would also undoubtedly cause ripples throughout the industry. Leigh Day estimates it could see payouts of around £8bn to 500,000 eligible staff.
But bosses at Asda still say the roles are not comparable and want Supreme Court judges to overturn the former ruling. It says men and women performing the same role within each establishment are paid the same. A spokesperson told The Independent: “This is an extremely complicated case that is without precedent in the private sector and we are pleased it is getting the legal scrutiny it merits. Whilst we respect the rights of retail workers to bring this case, we fundamentally disagree with its premise and will continue to make our arguments clear.
“Our hourly rates of pay in stores are the same for male and female colleagues and this is equally true in our distribution centres. Retail and distribution are two different industry sectors and we pay colleagues the market rates for these sectors.”
With 2020 marking 50 years since the introduction of the Equal Pay Act in the UK, perhaps to many the idea that only now private firms are being tested seems overdue. But with the Supreme Court marking the last chance for Asda to argue the roles are not comparable, and three rulings in favour of the workers already on the books, we could be about to witness a watershed moment.
*Names have been changed