Equal Pay – Who Are Employees Entitled to Compare Themselves With….

In the recent Preliminary Hearing judgement of Brierley and others v Asda Stores Ltd ET/2406372/2008, an Employment Tribunal held that retail employees were entitled to compare themselves to distribution employees for the purposes of their equal pay claim.

Accordingly, the Tribunal has paved the way for over 7,000 claims to proceed, totalling over an estimated £100 million. This landmark ruling could have a far-reaching effect on the private sector, as historically equal pay claims have tended to be confined to the public sector.

The Background

The claim has been brought by around 7,000 current and former hourly paid Asda retail store workers, of which approximately 70% are female. They contend that the workers in Asda’s distribution depots, who are predominantly male, are performing work of equal value, but being paid substantially more. The store workers assert that their work has been understood to be less worthy and viewed as women’s work in the past. 

Whilst employment terms in retail and distribution are set by reference to different processes within Asda, those processes are implemented and operated by the Executive Board which itself is subject to governance by Asda’s parent company.

Under the Equality Act 2010, an equal pay comparison is only valid if:

  • the claimant and comparator are employed by the same employer working at the same establishment; or
  • employed by the same employer working at different establishments but employed on common terms.

Asda argued that due to there being different internal processes and bodies setting terms and conditions, including pay for store workers and distribution workers, there was no single source responsible for the pay differential and as such, no valid pay comparison exists. 

The outcome

The judge rejected Asda’s case and concluded that because the Executive Board of Asda has budgetary control and oversight over the store workers and the distribution workers, the Executive Board were ultimately responsible for the differences in pay and could introduce equality if it chose to do so.

Additionally, the judge held that there were common terms between the retail and distribution workers which were reflected in the strong similarities in their respective handbooks and the fact they were both paid hourly rates.

Accordingly, the judge allowed the store workers to use the distribution works as their suitable comparator. It is now for the Tribunal to decide whether the jobs are indeed of equal value.

The effects on your business

It is important, in light of the above for private sector employers, to ensure they have the correct policies, procedures and pay schemes in place to ensure that female workers are not paid less than their comparable male counterparts. If you are unsure whether this is the case in your business, you should not hesitate to contact our Employment Team