This article was published on October 12th, 2017
Asda Stores Ltd v Brierley and others
Thousands of Asda employees will have waited with bated breath for the latest development in their equal pay claims.
That development was in the form of the Employment Appeal Tribunal’s (EAT) decision on Asda’s appeal. An employment tribunal had decided that these Asda employees (almost all female) were entitled to compare themselves, for the purposes of their ‘work of equal value’ claims, against mainly male distribution employees who earned more. Notably, those distribution employees were based at depots and not at the stores in which the women worked.
The EAT upheld the tribunal’s decision and dismissed Asda’s appeal. The tribunal was right to have looked at the similarities between the terms of the retail workers and distribution workers. In a situation such as this where there is a single source of pay and conditions for retail staff and distribution staff (here it was Asda’s executive board, overseen by its parent company), it can be fine to draw comparisons between these workers – even if they are based in different places.
The EAT rejected the argument that terms that are tied to different locations can’t be common. It also confirmed that a hypothetical comparator can be used where there is no actual comparator at a claimant’s place of work. So the workers bringing these claims are entitled to compare themselves with the distribution workers for the purposes of their equal pay claims. However, there is talk of another appeal by Asda, so this issue may not yet be over.
But the message to employers for now is: differences in pay between men and women in your organisation who work under broadly similar terms, delivering work of equal value, in different roles and in different locations, could be an equal pay claim waiting to be brought. Some organisations will now, as a result of this decision, be taking a good look at the salaries they pay male and female staff.