• Asda Store Workers Can Compare themselves to Depot Staff for Equal Pay Purposes

    In Brierley and ors v Asda Stores Ltd, the Manchester Employment Tribunal has ruled that a group of Asda store workers can compare themselves to distribution depot workers for the purpose of an equal pay claim. The ruling clears the way for over 7,000 claims to proceed, the total value of which has been estimated at over £100m.

    A group of mainly female employees of AS Ltd, who work in hourly-paid jobs in its retail stores, sought to bring equal pay claims, arguing that they were entitled to equal pay with AS Ltd’s distribution depot employees, who are mainly men. They argued that their work had historically been seen as ‘women’s work’ and thought to be worth less than the work done by the men in the depot. At a preliminary hearing, an employment tribunal had to consider whether the claimants could rely on this comparison. Under what is now S.79 of the Equality Act 2010, an equal pay comparison is only valid between the claimant and a chosen comparator if they are both employed by the same employer and work at the same establishment; or if they are both employed by the same employer and work at different establishments but ‘common terms apply at the establishments’ either generally or as between claimant and comparator.

    The tribunal first considered whether the proposed comparison would be permitted under EU law. In Lawrence and ors v Regent Office Care Ltd and ors 2003 ICR 1092, the European Court of Justice held that the right to equal pay under what is now Article 157 of the Treaty on the Functioning of the European Union is not necessarily limited to employees working for the same employer but can extend to the situation where the difference in pay is down to a ‘single source’, i.e. a body responsible for the inequality which could restore equal treatment. The tribunal ruled that it is not enough that the claimant and proposed comparator are employed by a single employer, there must also be a single source. However, it went on to find that the ‘single source’ test was satisfied on the facts. It rejected AS Ltd’s argument that the division of its corporate structure into Retail and Distribution operations meant that pay-setting powers had been delegated to separate bodies. The tribunal distinguished the present case from DEFRA v Robertson and ors, where the Court of Appeal held that the Crown was not a ‘single source’ such as to establish comparability between separate government departments. On the facts of the present case, AS Ltd’s Executive Board had and exercised budgetary control and oversight over both Retail and Distribution and so had the power to introduce pay equality.

    The tribunal went on to rule that the claimants satisfied the test for comparison under S.79 EqA as well. AS Ltd had argued that there were essentially different employment regimes at its stores and depot, such that there were no ‘common terms’ applicable to employees at different locations. The tribunal rejected this approach. It accepted the claimants’ argument that their terms were broadly similar to those of the depot employees – they were all hourly paid and the structure of the terms in the respective Handbooks was broadly the same. Although there were differences in specific terms, the tribunal did not consider that they were so extensive as to undermine the broad comparison that the EqA requires.


    Report Thomson Reuters

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