Asda drafts in HSF and Falconer alongside Pinsents to defend mammoth equal pay claim

Herbert Smith Freehills (HSF) and Gibson Dunn & Crutcher partner Lord Falconer are the latest names to be added to the roster of lawyers defending Asda against an equal pay claim brought by thousands of female employees.

The landmark equal pay claim brought against the supermarket chain by several thousand of its female employees is the first mass claim brought against a private sector employer since a 2012 Supreme Court ruling that allows such claims to be brought in the High Court up to six years after the employee leaves the company.

The case, expected to be one of the most expensive equal pay cases ever brought in the UK, featured in The Lawyer’s Top 20 Cases of 2015 (19 January 2015).

Asda originally instructed Pinsent Masons partner Jon Fisher, who instructed 11KBW’s Christopher Jeans QC.

Pinsents has since instructed Cloisters’ Paul Epstein QC. 

It has emerged that Asda also instructed HSF and Gibson Dunn & Crutcher. HSF is understood to be taking charge of the EU law aspects of the case while Pinsents is building the employment law case for its client.

SF employment partner Peter Frost, EU competition partner Susan Black and dispute resolution associate Andrew Hillam instructed Brick Court Chambers’ Marie Demetriou QC.

HSF is understood to have been brought in as dual representation thanks to its longstanding relationship with Asda’s parent company Walmart.

Former Lord Chancellor and Gibson Dunn partner Lord Falconer is lead partner and lead counsel. The firm has not instructed separate counsel.

Leigh Day is leading the case for the claimants. Employment partner Chris Benson and associate Michael Newman have instructed Outer Temple Chambers’ Andrew Short QC, Naomi Cunningham and Keira Gore.

The colossal group of lawyers was unveiled for the first time at a hearing on 30 January, in which an application by Asda to strike out some of the claims was heard. A second hearing is scheduled for 22 and 23 June, and a preliminary hearing will take place on 23 October to fix a timetable for a hearing on the merits of the case early next year.

Over 19,000 employees have approached Leigh Day to join the case, claiming they are due pay equal to that of the company’s predominantly male distribution centre staff, saying their own work is of the same value.

The claim is brought under the Equality Act 2010 or (where applicable) under the Equal Pay Act 1970. The claimants claim that they are entitled to the benefit of the equality clauses within this legislation, which operate to modify their terms of employment so that they are no less favourable than the corresponding terms enjoyed by their male comparators.

If successful, the claimants may be entitled to six years’ worth of back pay to compensate for the discriminatory difference between their earnings and those of the male warehouse staff.

The case will test how large retailers currently pay their employees in different areas of their business. With other supermarket chains using a similar distribution model to Asda, there could well be an impact on the company’s rivals should the claim succeed.

In 2012 Leigh Day brought a successful claim against Birmingham City Council on behalf of female employees claiming they were doing an equivalent job to their male counterparts. The Supreme Court held that the case could be heard in the High Court instead of the Employment Tribunal, thereby extending the time limit to bring the claims to six years from the six month deadline in the tribunal (24 October 2012).

The legal lineup:

For the claimants, Adams and ors

Outer Temple Chambers’ Andrew Short QC, Naomi Cunningham and Keira Gore, instructed by Leigh Day employment partner Chris Benson and associate Michael Newman

For the defendants, Asda

11 KBW’s Christopher Jeans QC and Cloisters’ Paul Epstein QC, instructed by Pinsent Masons partner Jon Fisher

Brick Court Chambers’ Marie Demetriou QC, instructed by HSF partners Peter Frost, Susan Black and associate Andrew Hillam

Gibson Dunn & Crutcher partner Lord Falconer