Understanding the Sainsbury's Equal Pay Claim:
“How can a woman who is doing a different job with a different job title, claim the same amount of pay (equal pay) as a man who is working a different job with a different job title?”
The purpose of the Equality Act 2010 (previously the Equal Pay Act) is to eliminate discrimination as regards pay and other terms and conditions between men and women in the same employment. It allows pay comparisons to be made if a worker of the opposite sex is paid more and they do:
a) like work
b) work rated as equivalent
c) work of equal value
Like work is work that is the same or broadly similar to that being done by the man or men with whom she is comparing herself, judged by the nature of the work actually done by the jobholders, rather than on the basis of a job description or job title.
Work of equal value
An equal pay claim for work of equal value means that the work the woman does, although different from that being done by the man or men with whom she is comparing herself, is of equal value in terms of the demands made on her. Therefore, though the jobs may be different (such as a shop floor assistant comparing herself to a warehouse assistant) the jobs can be regarded as being of equal worth, having regard to the nature of the work performed, the training or skills necessary to do the job, the conditions of work and the decision-making that is part of the role.
Work rated as equivalent
A woman’s work can also be rated as equivalent to a man’s. This is where an independent analytical job evaluation study has been carried out within the workforce by job evaluation specialists and they find that the work done by women is of equal value to the work done by the men by reference to factors such as effort, skill and decision-making.
In the Sainsbury’s equal pay claim, we believe that colleagues in male dominated roles were paid more than the colleagues in female dominated roles. This is because we are comparing the roles of colleagues in stores and colleagues in distribution centres. The colleagues working in stores are predominantly female and the colleagues working in distribution centres are predominantly male. The colleagues working in distribution centres are paid more than the colleagues working in stores and we are arguing that this is unjustified sex discrimination.
Leigh Day, our legal partner, is a leading law firm in the UK specialising in employment and discrimination law. The cases they take on are frequently reported in the media. One such example is their recent successful equal pay claim against Pembrokeshire County Council.
Within Pembrokeshire County Council, the roles of cleaners, catering assistants, lunchtime supervisors, teaching assistants and school crossing patrols were mainly carried out by female colleagues. The roles of cooks in charge, cook supervisors and care staff were mainly carried out by male colleagues.
Colleagues in male dominated roles were paid more than the colleagues in female dominated roles. Although the roles were different, Leigh Day successfully argued in the Employment Tribunal that they were of equal value to Pembrokeshire County Council. You can read some news coverage of the case here:
Justice at last for female employees – 24 February 2016
100 women receive settlement after county council equal pay challenge – 9 February 2016
In order to bring a claim, a complainant must choose an actual comparator of the opposite sex who is treated more favourably and is shown to be employed on “like work”, “work rated as equivalent”, or “work of equal value”. The comparator must be a current or previous employee of the complainant’s employer or an associated employer.
If you are receiving unequal pay with a comparator who is doing equal work, the employer has to show that the difference in pay is genuinely due to a material factor other than the difference in sex. It is for the employer to show that such a factor exists and it is the real reason for the difference.
For example, in some circumstances the operation of market forces may justify a difference in pay, such as the need to recruit for particular jobs or the need to retain employees occupying particular jobs. The employer must also show that all of the difference of pay is genuinely attributable to that factor.
“How do you determine if there is unequal pay? Is it just a comparison of hourly rates or are other factors considered too?”
For the purposes of the Equality Act, the concept of pay includes both pay and other terms and conditions - particularly bonus payments but also for example holidays and sick leave. European law has extended the concept to include redundancy payments, travel concessions, employers’ pension contributions and occupational pension benefits.
This means that there may still be a breach of the principle of equal pay where a man and a woman receive the same basic rate of pay, but other benefits (such as performance bonus, company car, private health care etc) are not provided on an equal basis. The Equality Act applies to any difference in pay or benefits provided by the contract of employment.
Sainsbury’s have no legal obligation to pay back pay unless you have brought a claim, and they are unlikely to do this voluntarily. If the claims are successful Sainsbury’s will have to remedy the pay gap. This could either be through raising the pay of those in stores, or through lowering the pay in distribution centres.
Criteria for joining the Sainsbury's Equal Pay Claim:
We receive many enquiries from Sainsbury's colleagues who work or worked as managers.
If you have worked as a manager at Sainsbury's, it is important to establish whether you were/are paid hourly or by a yearly salary. The fact that you may be, or have been, a salaried manager does not prevent you from bringing a claim. However, the work of a salaried manager is more complex and individual than an hourly paid colleague. We are therefore currently only bringing claims on behalf of hourly paid colleagues. There will however be details of alternative solicitors who may be able to assist you on The Law Society website if you are salaried.
If however you have worked as both an hourly paid colleague and a salaried manager in the last 6 years (5 in Scotland), we may still be able to bring a claim on your behalf. In this scenario, we would need to look at when your work as an hourly paid colleague ended: if it was over 6 months ago, you would be eligible to bring a civil court claim; if it was less than 6 months ago or you are currently an hourly paid colleague, we would be able to bring your claim in the Employment Tribunal straight away. However, as above please note that we will only claim for the period of time in which you were paid hourly.
Even if you do not believe you are eligible to claim, we are always happy to talk to Sainsbury's managers who would like to know more about the claim, so please feel free to get in touch.
Anyone who has worked in the last 6 years can make a claim (5 years in Scotland).
Anyone who has worked in the last 6 years can make a claim.
So you've joined the claim, now what?
Sainsbury’s will only be aware that you have brought a claim against them once you have instructed us to proceed with your claim and we have submitted your claim to the Employment Tribunal. We will write to you to confirm when this has been done.
You have extensive legal rights and protection when making a claim for equality and fairness. Please be assured that strong victimisation laws are in place to prevent any action being taken against you for bringing an equal pay claim.
The Equality Act 2010 states that if an employer victimises an employee for bringing proceedings under the Act, they will be able to bring a claim for victimisation under the act.
Victimisation would include:
- less favourable treatment than others;
- being given less overtime; and,
- being dismissed.
We have been provided with assurances from Sainsbury’s solicitors that no colleagues will suffer from victimisation as a result of bringing an equal pay case. Additionally, these are claims being made by large numbers of workers and there is even more safety in numbers. The claims will be dealt with as a group at Head Office and not in local stores.
If there is any suggestion that changes to your job would result from bringing an equal pay claim, please contact us immediately on 0845 494 0744 or email us on firstname.lastname@example.org.
Possibly at some stage, but not immediately. The equal pay claims Leigh Day are bringing against Sainsbury's are based on both domestic and European law. While negotiations are taking place about leaving the European Union, the law has not changed, and so your claim remains as it was before the EU referendum.
When article 50 is triggered, with the consequence that the UK does leave the EU, Treaty articles, along with European Regulations and Directives (including those on equal pay) will cease to have legal effect to any claim brought in England and Wales (such as these equal pay claims). The national laws that England and Wales have passed, such as the Equality Act 2010, which in part implement European Treaty articles and European directives, will currently remain in force. Are there any steps I can take? Leigh Day will keep you updated about any developments, including anything that affects the merits of your claim (anything that makes your claim either more or less likely to win).
Our legal partners, Leigh Day, are running this claim on a “no win no fee” basis. Their legal representation is funded by a percentage of any back pay they win for you. If you agree to Leigh Day representing you they will explain the terms and ask you to sign an agreement with them. The figures we quote are estimates after their fees have been deducted.
You have full legal rights and very full legal protection when making a claim for equality and fairness. Additionally, these are claims being made by large numbers of workers and there is even more safety in numbers. The claims will be dealt with as a group at Head Office and not in local stores. Your only risk could be losing out on thousands of pounds by not making a claim.
Please be assured that strong victimisation laws are in place to prevent any negative action being taken against you for bringing an equal pay claim. If you have any concerns about this or any other questions about the claim, you can call 01202 798 266 and speak to our legal team in confidence.