The retail giant is appealing against last August’s Employment Appeal Tribunal (EAT) decision that jobs in Asda stores are comparable to those in the firm’s distribution centres.
Asda’s barrister Christopher Jeans QC made the comments in the latest round of legal action which was launched by thousands of retail workers, mostly women, who argue they should be paid the same as those working in the supermarket’s depots.
Mr Jeans told three appeal judges on Wednesday the EAT had “erred in law” in finding that retail and distribution workers are comparable, saying: “It is not enough that the claimant and comparator share the same employer.”
He said the claimants need to show “either that they are at the same establishment... [or] that common terms and conditions apply”.
He said the EAT had incorrectly reached the “extraordinary conclusion that the terms were common as between” the retail workers and depot staff.
“They reached a conclusion on broad similarity that is simply unsustainable,” Mr Jeans said.
Andrew Short QC, for the employees, said in written submissions to the court that they believe their work is “of equal value to that of the distribution workers and that there is no good (i.e. objectively justified) reason for the difference in pay”.
He added: “Instead, they say that the difference results, in part at least, from stereotypical assumptions about the nature of ‘women’s work’ and the role of men (but not women) as breadwinners.”
He said that in 2014, the “highest base rate for retail staff” in London was £7.37 per hour, compared to £9.13 per hour for the “lowest paid warehouse operatives” at Asda’s distribution centre in Grangemouth, central Scotland.
If the claimants succeed at this stage of the litigation, they will still have to demonstrate the roles are of equal value and, if they are, that there is a reason other than sex discrimination which means the roles should not be paid equally.
Law firm Leigh Day, which says it represents more than 27,000 Asda shop floor workers as well as staff at Sainsbury’s, Tesco and Morrisons, estimates the total value of the claims against the big four supermarkets if they lose their cases and are ordered to pay all eligible staff could be more than £8 billion.
Lord Justice Underhill, Lord Justice Sales and Lord Justice Peter Jackson are expected to reserve their judgment.