Stefan Martin: What can employers learn from the Tesco and Morrisons equal pay cases?

According to newspaper reports, several supermarket chains are either already facing, or are preparing to face, large numbers of equal pay cases. Female workers in stores are claiming that they are engaged in work of equal value to that of male employees working in distribution centres and are entitled to the same rates of pay as those employees.

Equal pay claims are different from other types of discrimination claim because an employee normally has to compare their pay with an actual comparator, not a purely hypothetical one. They then have to show that they are employed in like work; that is, work rated as equivalent or work of equal value with their named comparator.

Equal pay claims have tended to be brought by employees comparing themselves with a fellow employee at the same workplace but the supermarket equal pay claims are a reminder that this will not always be the case. It is perfectly possible for someone to compare themselves with an employee at a different workplace. A series of UK and European decisions over the last few years has made that comparison easier.

Although an equal pay claim under the Equality Act 2010 can only proceed if ‘common terms’ apply at both locations, this may not be difficult to show, especially if there are strong similarities between the terms and they are set by the same employer. It may even be possible to bring an equal pay claim under EU law in the absence of common terms if employees can point to a single source of pay.

Employers should remember that the fact that there is no equal pay issue at a particular location does not automatically avoid the risk of an equal pay claim. It is becoming increasingly common, and easy,  for employees to claim equal pay with other employees based at a completely different location. Gender pay gap reporting and the publicity surrounding it means that equal pay issues (in the widest sense) are currently right at the top of the agenda.

Stefan Martin is head of the employment group in London at Hogan Lovells