The Court of Appeal has decided that a group of female supermarket retail employees were entitled to compare themselves with a group of predominantly male depot employees, for the purposes of an equal pay claim.

Asda Stores Ltd v Brierley and other [2019] EWCA Civ 44

Facts

A group of over 7,000 predominantly female retail employees brought a claim against their employer, Asda Stores Ltd, for equal pay. They cited as comparators employees in the company’s distribution depot, who were predominantly male. Asda tried to argue that the claimants could not properly compare themselves with the depot employees, as they were engaged at different sites. Both the employment tribunal and the Employment Appeal Tribunal (EAT) agreed with the claimants that they could compare themselves with the depot staff, meaning that their case could proceed to be determined on the merits of the claim.

Asda appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal has dismissed Asda’s appeal, upholding the decisions of the employment tribunal and the EAT.

The court agreed that the claimants could compare themselves to those employed at the distribution depot, even though the two groups worked at entirely different sites. Asda observed broadly common terms and conditions for the relevant groups across its sites. As the executive board was ultimately responsible for pay across the two groups of employees, their terms and conditions derived from a ‘single source’ for equal pay purposes under EU law.

Consequences

The court’s decision means that the case can now proceed, subject to any appeal to the Supreme Court, to decide whether or not the two groups of employees are engaged on work of equal value. The fact that the claimants are entitled to use the depot staff as comparators does not yet mean that they have established a case for equal pay. A final determination of this case is, therefore, a step closer but still some way off.

The content of this article is for general information only. For further information please contact Liz Stevens or a member of Birketts’ Employment Law Team.

This article is from the February 2019 issue of Employment and Immigration Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at February 2019.

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