There has been another baby step forward in the long-running equal pay case brought by more than 40,000 female employees at Asda.
It is one of a slew of battles being fought across the retail sector, including at Next, where female staff recently won the right to take their case to its final stage.
These cases raise broader questions about how we value “women’s work”, even in 2023 – more than half a century after the Dagenham machinists walked out of the Ford factory to demand equal pay.
An email from lawyers handling the Asda case for the workers involved, leaked to ITV last week, pointed to apparently favourable findings in an independent review commissioned by the employment tribunal.
It seems independent experts have found that shop-floor jobs, carried out predominantly by women, score more highly on average on a range of factors, such as knowledge and responsibility, than distribution jobs, held predominantly by men. That’s crucial, because the retail workers say they are paid £1.50 to £3 less an hour.
The findings follow a series of victories, including at the supreme court, over whether it is appropriate to compare the two groups of workers.
A long road remains in this case, with a tribunal hearing not due until next year. Asda rightly points out that there is no automatic read-across from these higher average scores to a ruling that specific jobs are of equal value.
Even if such a ruling were made, Asda could still argue, at the final stage of the drawn-out process, that there are other valid reasons for paying the two groups differently. As a spokesperson for the company puts it, “retail and distribution are very different sectors, with their own distinct skill sets and rates of pay”.
That may well be true, but just like women in other relatively low-paid jobs, shop-floor workers could be excused for wondering why.
And it is hard to avoid the suspicion that buried beneath all of these cases is the same deep-seated social norm that was on display in Dagenham all those years ago – that work performed by women must, by definition, be less valuable.
It’s hard to think of a more important job than caring for preschool children, or elderly care home residents, to take two examples. Yet as a society we’ve quietly accepted the fact that these female-dominated roles rarely command more than the national minimum wage.
Of course, the proximate causes of poverty pay in these sectors are political: social care and nursery provision are chronically underfunded. But it seems at least worth asking how we got here. Why does it remain acceptable for pay rates in these vital sectors to be so low? Is sexism ultimately part of the answer?
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Lawyers acting for retail employees hope to use this argument to dismantle the employers’ claims that the jobs in question – shop-floor worker and warehouse operative – command different market rates.
As Elizabeth George, a partner at Leigh Day, who is acting for Next workers, put it recently: “We think we can say: ‘No, the market forces argument is tainted by sex discrimination. Just because you’ve always done it, and just because everyone else does it, isn’t a material factor.’” The retailers will, of course, vehemently disagree.
While these equal pay cases may be trailblazing, they won’t help women in other low-paid sectors where there is no equivalent “men’s job” to measure themselves against.
Labour, whose deputy leader, Angela Rayner, was once a care worker, has promised to facilitate “fair pay agreements” for low-paid sectors, kicking off with social care, negotiated between unions and employers.
The overwhelming majority of the beneficiaries of this policy, if it works, will be women. When it comes to care, what is less clear is whether the ultra-cautious Keir Starmer is ready to make the argument that taxpayers will have to fund the sector better – not just to cap families’ fees, as Boris Johnson pledged, but to ensure thousands of chronically undervalued care workers can earn a decent wage.
