Retail staff could compare terms to distribution workers at offsite depots in equal pay case

Facts

Over 7,000 equal pay claims were brought against Asda by retail employees, predominantly women. The claimants (acting via Ms Brierley as a test case) sought to compare themselves with higher-paid employees in distribution depots, who were predominantly male.

At a preliminary hearing, Asda argued that the claims should be struck out on the ground that the claimants (the retail staff) could not compare themselves with their chosen comparators (the distribution staff). The roles were, said Asda, based in different location and were materially different in scope. The claimants argued that common terms of employment applied at the stores and the depots, and that comparison was possible in any case where there was a “single source” (i.e. Asda’s Executive Board) for the terms of employment of a claimant and their comparator.

Court of Appeal decision

The Court of Appeal agreed with the position reached by both the Tribunal and the EAT, that the retail employees were entitled to compare themselves to distribution employees for the purposes of their equal pay claim. For both classes of employee, Asda applied common terms and conditions wherever they worked, which was sufficient to establish comparability. The Court of Appeal decided this issue based on UK law, but also noted that EU law permits “an employee to compare herself with any employee of the same employer”

Comment: This claim confirms that the fact that retail and distribution staff work at different sites is not, in itself, a bar to an Employment Tribunal ordering an equal value report to be prepared. It does not necessarily mean that retail staff and distribution staff are “comparable” in the sense that their work is of equal value. This will be decided at a separate hearing in due course.

This could open the floodgates for a large number of equal pay claims across the private sector, in much the same way that we saw in the public sector over the last decade. Employers should carefully consider the profile of their workforce, identifying the potential for such claims and any justifications for differences in pay in advance. If you would like assistance with this, please don’t hesitate to contact one of the team.

Asda Stores Limited v Brierley (2019)