Equal pay claim at Asda

Brierley and others v Asda Stores Limited

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. A group of mainly female employees, 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 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.

The tribunal first considered whether the proposed comparison would be permitted under EU law. 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 Asda’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 went on to rule that the claimants satisfied the test for comparison under the Equality Act as well. Asda 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 Equality Act requires.

In Practice

This is a huge decision which clears the way for over 7,000 claims to proceed, the total value of which has been estimated at over £100m. "Traditionally it has been very difficult for equal pay claims to succeed, but this decision means employers have to be careful to ensure they pay equally across different sites and departments," says Employment Partner Kate Fretten.  The fact the work may be quite different in practice will not necessarily defeat an equal pay claim.

Our Employment Team, based in Christchurch, also cover Bournemouth, Poole and the New Forest. For a free initial chat, please call 01202 499255 and Kate or a member of the team will be happy to discuss any questions that you may have.