Claimant v Asda Stores Limited
Outcome
Individual claims
This is a preliminary hearing dealing with disclosure and legal professional privilege, not a final merits hearing. The underlying equal pay claims involving approximately 16,000 claimants (mostly women in retail stores comparing themselves with predominantly male depot workers) remain to be determined. The tribunal ordered the respondent to answer specific questions about job evaluation studies conducted before 2008 but found that questions about work done after proceedings commenced in 2008 were protected by litigation privilege.
Facts
This is a preliminary hearing in large-scale equal pay litigation involving approximately 16,000 claimants (mostly women) employed in Asda retail stores comparing themselves with predominantly male hourly paid depot workers. The first claims were filed in the North West region in August 2008. The claimants applied for specific disclosure seeking to establish whether the respondent had conducted any job evaluation studies (JES) and, if so, whether they were protected by legal professional privilege. The respondent asserted privilege over any such work conducted after proceedings commenced in 2008, relying on an affirmation from their solicitor Ms Hudda that the work was done for the dominant purpose of conducting the litigation.
Decision
The tribunal ordered the respondent to answer questions about whether any job evaluation studies or assessments were conducted before 1 January 2008 (before proceedings were reasonably contemplated) in respect of store and depot roles. However, the tribunal held that questions about work done after proceedings commenced in August 2008 were protected by litigation privilege, as any such work would have been done for the dominant purpose of conducting actual litigation with potential national consequences, not merely to avoid contemplated litigation. The respondent did not need to provide a privilege log or further details that would reveal litigation strategy.
Practical note
Following SFO v ENRC, litigation privilege does not protect documents created to avoid contemplated litigation, but once civil proceedings are actually commenced, even if initially limited in scope, work done to understand and defend those proceedings (including work aimed at settlement) is protected by litigation privilege where the proceedings have clear potential for broader application.
Legal authorities cited
Statutes
Case details
- Case number
- 2406372/2008
- Decision date
- 31 January 2025
- Hearing type
- preliminary
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- retail
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Hourly paid store staff
Claimant representation
- Represented
- Yes
- Rep type
- barrister