Supermarkets under fire

Supermarkets are at the centre of several legal claims, including over ‘flexible’ contracts and equal pay. Beena Nadeem reports.

Supermarket retail


Earlier this month, the deadline was reached for tens of thousands of ASDA workers to sign up to new contracts which affect those with caring responsibilities in particular.

The new contract – Contract 6 – means they will lose paid breaks and will mean a shortened night shift, an end to overtime pay for bank holidays and the possibility of being called to work at shorter notice. Instead of fixed shifts, workers will have to be available to work any hours between 8am and 10pm.

GMB, the union representing staff, says that, although staff were alerted to the possible changes back in 2017, they were initially told moving to the new contract would be voluntary. However, this year they were told to either sign new contracts by November 2nd, face the sack or be  automatically put onto the new flexible contracts.

ASDA say workers on the new contract get at least four weeks’ notice of any changes to shifts and a pay rise from £8.21 to £9 per hour. It adds that most employees have signed up to the contract and that it is one of ‘the last of the big retailers to employ this kind of contract’.

But GMB’s National Officer Gary Carter says: “These contractual changes are forcing workers to choose between looking after their disabled son, elderly mother or relatives.”

One worker outlined the difficulty she faces in changing her shifts: “My husband had an accident which left him in constant pain… On the afternoons I work, my son goes to an out-of-school club as my husband isn’t able to look after him on his own.”

The father of a 16-month-old girl who has been affected works days while his wife works nights at ASDA. He says: “My wife looks after our daughter then I go home so she can go to work at the same store at night. We already received our termination notice because we couldn’t be flexible.”

Unfair dismissal

Aceil Haddad, a spokesperson from the campaign group Pregnant Then Screwed, says the move “invariably hits mothers hardest as they are being forced to decide between taking a shift or doing the pick-up or drop-off”. She adds that it offers ASDA a ‘get out of jail free card’ as it has forced employees into a corner and put them at the supermarket’s mercy.

Former ASDA baker, Duncan Carson was sacked by by the supermarket giant for not accepting changes to his contract and is now, with the support of GMB, bringing an unfair dismissal case and urging others to do the same.

If successful, it could stop the supermarket and others like it from imposing similar changes often on those least able to build flexibility into their lives. But so far, the outcome doesn’t look good.

Martha McKinley, Employment Law Solicitor and Senior Associate at Stephensons Solicitors, explains that ASDA “simply has to show a sound business reason for wishing to implement the changes. Provided it can do so and demonstrate that a fair process has been followed, a claim for unfair dismissal may be unlikely to succeed”.

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Meanwhile, Danielle Ayres, Senior Associate Solicitor specialising in employment at Gorvins, says mums might be able to claim, although not without risk. She says: “There may be claims there as they [mums] could have been indirectly discriminated against as these [changes] may have a worse effect on some groups of employees (such as women) more than others. Women, more than men, have a caring responsibility for their children and relatives meaning that they require more flexibility in their days or hours of work, but again if it’s justified with a business reason behind the change then they [ASDA] may well get around it”.

She adds that, although employees – especially women and those returning from maternity leave – could ask about flexible working as a way to fix their shifts, it’s easy for employers to turn this down by citing one or more of the eight statutory reasons.

Unequal pay: supermarkets under fire

Supermarkets have been at the centre of other legal cases in recent months with several of the largest companies, including Tesco, facing a large equal pay claim.

Represented by discrimination lawyers Leigh Day, the claims centre around whether hourly-paid work carried out by shop workers (mostly women) is of ‘equal value’ to work done by those in supermarket distribution centres, mainly the warehouse staff who tend to be men. If so, they should have been paid the same hourly wage, according to Leigh Day. In a statement it, lawyers say: ‘If it is shown that the work is of equal value and the pay difference cannot be justified, then the equal pay claims will be successful’.

If the claims are successful, employees could claim years of back pay to compensate for the difference in earnings. Although equal pay is not the same as the gender pay gap, which relates more to the fact that men tend to be in the most senior positions of most companies while women are more likely to be found at the bottom of the pay scale, it can have a big impact on the pay gap.

Sasha Graham, marketing manager at the Equality Group, says equal pay claims are not about taking money away from men, but about righting historic undervaluing of women’s work. She says: “This is not about stealing from men to give to women.” Instead it is about ensuring everyone is paid fairly for their work.

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