In a preliminary hearing in the equal pay case of Brierley and others v Asda Stores Ltd, the Employment Tribunal has ruled that Asda store workers can compare themselves with distribution depot workers.
The case of Brierley and others v Asda Stores Ltd concerns equal pay claims from around 7,000 (mainly female) current and former store employees. The claimants are arguing that the mainly male employees in Asda’s distribution depots are doing work of equal value to them and yet are being paid substantially more.
Women and men are entitled to the same contractual terms and pay when doing equal work (including work of equal value), unless there is a defence to the difference in terms. In order for a woman to bring an equal pay claim, she must first be able to identify a male colleague who is employed on equal work but who is entitled to better contractual terms than she is.
As a preliminary issue in the Asda equal pay litigation, the ET had to consider whether the store workers could use the depot workers as comparators in their equal pay claims.
Employment tribunal decision
Considering the comparator tests for an equal pay claim under the Equality Act and under European law, the ET found that the comparison between the store workers and depot workers was a valid one. The ET decided that there was the necessary ‘single source’ in relation to pay, i.e the pay of both groups of employees was determined by the Asda Executive board. In addition, whilst the two groups of employees worked at different sites, the test of ‘common terms’ of employment was satisfied. Despite some differences in specific terms, the ET found the employment terms to be broadly similar; the employees in store and those in the depot were all hourly paid and the structure of the terms in the handbooks was generally the same.
The store workers could therefore use the depot workers as comparators and could proceed with their claims.
This ruling from the ET clears the way for the equal pay claims to proceed, the total value of which is estimated at over £100m. The ET will now go on to decide on the more substantive issue of whether the claimants’ store work, which they argue has historically been seen as ‘women’s work’, is of equal value to the work done in the depots.
EEF will keep you updated on the Asda equal pay litigation, and is happy to discuss with members any implications for your organisation. In the meantime, the gender pay gap in the workplace (which may, depending on the circumstances, indicate that a business is vulnerable to equal pay claims) is a continuing focus for employers. We are currently awaiting the final Regulations on gender pay reporting, which are due to come into force next April. Click here to book one of our seminars – Gender pay reporting: How to comply taking place in December.