Equal Pay: Asda suffers a further loss at the Court of Appeal

01 February 2019

Can female supermarket staff compare themselves for equal pay purposes with men working in a network of warehouses and distribution centres operating under a different management structure?

Yes, held the Court of Appeal in Asda Stores Ltd v Brierley.

Thousands of Asda’s retail staff say their customer-facing roles are undervalued compared to warehouse work. For equal pay comparisons, Claimants and their comparators need to be working at the same establishment, or at establishments at which “common terms are observed”.

The Court of Appeal decided that common terms were observed between the warehouses and supermarkets, so the claims could proceed. The Court also held that the claimants would be entitled to draw the comparison under European law because there was a “single source” for their and their comparators’ terms, but declined to decide whether European law had direct effect in relation to equal value claims.

The Court of Appeal explains the test for “common terms” in purely hypothetical terms, considering it unnecessary for claimants to present evidence about the actual terms on which they and their comparators are employed. Employers will have a tough time arguing that they don’t need to ensure pay equality between workers at different sites operating different employment regimes: the question won’t be how different are the terms at the two sites - but how different would the terms be, if workers from one site were transplanted to do their own jobs (however unlikely that is in practice) at the other site.

With thanks to Daniel Barnett’s employment law bulletin for providing this update.

CIPP comment

Whilst the Court of Appeal denied the right to appeal it has been reported that Asda intends to apply to the Supreme Court to appeal against this latest ruling