Court of Appeal satisfied that store workers and warehouse workers are comparable

In Asda Stores v Brierley, the Court of Appeal upheld the decisions of the ET and EAT that Asda store staff may compare their roles in the supermarket with those carried out in the distribution centre.

Law

Broadly speaking, equal pay claims have 3 main elements to them:

1. Determine whether the roles are comparable;
2. Assuming they are, decide if they are of equal value;
3. If they are of equal value, the tribunal must then decide if there is a reason, other than sex discrimination, that would mean the roles ought not to be paid equally.

An employee establishing an equal pay claim may wish to use an individual from another part of the business as their comparator. If this is the case then it is necessary for the employee to show that broadly common terms and conditions exist between the two business areas.

Facts

Around 7000 hourly paid supermarket employees, the overwhelming majority of whom are women, brought claims that they were not being paid the same as their predominantly male counterparts in the distribution warehouses, despite the work being of “equal value”.

Decision and comment

The Court confirmed that there is a simple question to ask at this preliminary stage: would the terms for the relevant employees apply regardless of where they worked? The Court found that Asda “applied common terms and conditions wherever they worked”. Accordingly, the business areas are comparable. It is anticipated that Asda will seek leave to appeal to the Supreme Court.

This is a widely reported case, given the potentially significant sums that might be awarded to the claimants; figures of £8 billion across the “Big-4” supermarket retailers, who all face similar claims, has been suggested. The Asda claim is the furthest progressed.

It is important to remember that this decision only concerned the first step in the above process, and the claimants still have to establish that they do work of equal value to the distribution workers. If it is found they do, Asda will undoubtedly present a “material factor” defence which would also need to be decided.