Asda, British supermarket giant, has recently lost the right to appeal a bizarre ruling regarding its allegedly discriminatory remuneration practices. A dispute between workers and management of the chain has been festering since October 2016, when the UK Employment Tribunal decided that supermarket shop workers had the right to consider their work comparable with employees doing warehouse duties, and subsequently could expect equivalent (in this case, higher) pay.

The complicating factor? That the majority of supermarket workers are female, and most of those who find themselves driving forklifts and moving hefty boxes in the warehouse division happen to be male. Accordingly, for the UK Employment Tribunal to rule that in-store roles are equivalent to warehousing ones meant that the whole matter became charged with ominous connotations of sexism and oppression, thus poised to be merged seamlessly into the larger gender pay gap debate.

Curiously, the legal counsel representing the workers is yet to comment on whether this whole matter could be resolved by simply encouraging aggrieved female employees to apply for warehouse roles – Asda has gone to great lengths to assure the public that gender is irrelevant to your rate of pay when it comes to wheeling around a pallet jack (or standing cheerily at the checkout).

The Asda case is especially intriguing given that most reasonable individuals with absolutely zero prior knowledge of Asda’s operational processes could probably list quite a few reasons why warehouse roles attract additional remuneration.

In no particular order, one would expect that working in a warehouse increases exposure to a number of occupational hazards such as noise, extreme temperature and heavy machinery like conveyor belts and hydraulic lifting systems. In addition to the physical risks of the work environment itself one must also be sure to practice proper manual handling procedures and take steps to reduce the risk of a career-threatening physical injury. Perhaps, as with most warehouses, the typical employee is also encouraged (or required) to hold industrial qualifications such as a forklift license.

Presumably arguments such as these form the legal basis of Asda’s case. However, the fact that Asda has so far been unsuccessful in its attempt to reverse the ruling points to the emergence of a rather alarming precedent – that the legal basis for any industrial disputes involving accusations of gendered pay discrimination will no longer be bound unambiguously by the true physical nature of the role performed by the employees initiating the claim.

There is abundant evidence that suggests the very concept of a gender pay gap itself is spurious at best, with several clearly identifiable factors completely unrelated to gender discrimination forming the basis of pay disparity. In the Asda case, comments attributed to the organisation indicate barely concealed incredulity:

Pay rates in stores differ from pay rates in distribution centres because the demands of the jobs in stores and the jobs in distribution centres are very different; they operate in different market sectors and we pay the market rate in those sectors regardless of gender.

Australia has progressed quite a long way towards clumsy government rectification of the hypothetical gender pay gap issue, with most large organisations now required to report gender pay data to the Workplace Gender Equality Agency. Taking the Asda case to its worst possible logical conclusion raises the prospect of an entirely new class of industrial disputes emerging in the UK and probably here – those in which a business with multiple, heavily gender skewed operational divisions being expected to ensure pay parity across those divisions with a decreasing focus on the economic realities of divisional roles or relative organisational value of those divisions.

It is patently absurd that Asda may have to ensure equivalent pay between employees performing tasks that are intuitively and provably dissimilar. Allowing legal precedents of this nature to stand will introduce an entirely new class of economic distortions, in which economic value of one role can become completely disparate from the remuneration it attracts merely because those performing the role happen to have disproportionately similar genitalia.

Perhaps we should take this opportunity to define the first law of discrimination discourse – when an alleged matter of oppression goes as far as possible given the objective evidence available evidence will no longer be relevant to the discourse.

We can be sure nearly every checkout chick at Asda feels as if they deserve the same pay as all those suckers hauling boxes in the warehouse – what else could matter more in 2019?

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