Supreme Court – Asda employees one step closer to successful equal pay claim

The Supreme Court in the case of Asda Stores Ltd v Brierley and others has considered whether, for the purposes of their equal pay claim, the Claimants, Asda’s retail employees who were mostly female, could compare themselves with Asda’s distribution depot employees who were mostly men.

Background

This case concerns around 30,000 Claimants who are employed by Asda and allege that they are paid less than the employees who work at depots as part of Asda’s distribution operation (“Comparators”). The Claimants assert that they undertake work of an equal value to the Comparators but that the Comparators’ terms and conditions of employment are superior to the Claimants’ in various ways, including their hourly rates of pay, contractual allowances and/or bonuses.

The particular issue which is the subject of this appeal was a preliminary one which was originally decided by an Employment Tribunal. The Tribunal found in the Claimants’ favour and decided that the Claimants could seek to rely upon their identified Comparators. Asda Stores (“the Respondent”) appealed to the Supreme Court following two unsuccessful appeals to the Employment Appeals Tribunal and Court of Appeal.

The Law

The concept of equal pay is a straightforward one, but the law in this area is quite complex. Broadly, if a female employee (A) does “equivalent work” to a male employee (B), then A should be paid the same amount as B. This includes their basic salary but can also cover employment terms such as pension, annual leave allowance/pay, overtime pay and sick pay.

To bring an equal pay claim a would-be claimant must identify a comparator. There are different definitions of “comparator” set out under the Equality Act 2010 which a claimant can seek to rely upon. Because the Asda employees worked at different locations, i.e., the Claimants work in Asda’s retail stores and the Comparators work in the distribution depots, the following definition applies to a Comparator in this case:

• B is employed by A’s employer or an associate of A’s employer,
• B works at an establishment other than the one at which A works, and
• common terms apply at the establishments (either generally or as between A and B).

Effectively, the subject of the appeal to the Supreme Court is this “common terms” test, with the Claimants arguing that despite working at a different location to the Comparators, there were common terms at the Respondent’s depots and retail stores which permitted this comparison. This phrase has no statutory definition and courts have sought to interpret it through case law, which the Supreme Court examined in its judgment.

Decision

In what could be considered a highly technical judgment, the Supreme Court found that the Claimants could validly compare themselves to their chosen Comparators within the meaning set out under the Equality Act 2010.

This does not mean that the Claimants have been successful in their equal pay claims, but it is a key victory for the Claimants in this case, as the Respondent had sought to have this claim struck out at a preliminary stage, without having to look at the remaining elements of the legal tests for equal pay legislation, for example, do the employees undertake ‘equivalent work’? These elements will now be decided by an employment tribunal as the case continues to progress.

Comment

The Supreme Court noted that if the Claimants are successful, they will be entitled to arrears of pay for the 6 years prior to 2014, when this claim was originally brought. However, the impact of this decision is likely to be more far-reaching and will be felt by other organisations in the retail sector. By way of illustration, the law firm advising the Claimants in this case is also helping store workers at Tesco, Sainsbury’s, Morrisons, Co-op and Next bring similar claims against these companies. Therefore, although a seemingly minor point, this decision could lead to others in similar positions establishing valid comparators for equal pay legislation, where otherwise they might not have done. This case, and others of a similar type, will certainly be one to keep an eye on.