An employment tribunal has ruled as a preliminary issue that a group of Asda shop workers can compare themselves to depot workers for the purposes of pursuing their equal pay claim.

Brierley and ors v Asda Stores Ltd, ET

Facts

This case is being pursued by a group of mainly female employees, who work in hourly paid jobs at Asda supermarkets. They are seeking to establish that they are entitled to equal pay to that paid to Asda’s distribution depot employees, who are mainly men and paid around £4 per hour more than the shop workers. The claimants argue that their work has historically been valued less as it’s been regarded as ‘women’s work’.

To establish their claim under the Equality Act 2010, it was necessary for the claimants to show that their chosen comparators (the depot workers) were employed by the same employer and were either employed at the same establishment or a different establishment but with ‘common terms’.

Asda sought to resist the claim on the basis that its corporate structure was divided into retail and distribution operations, meaning that pay-setting powers had been delegated to separate bodies.

Tribunal decision

The employment tribunal accepted that the claimants’ could compare themselves with the depot workers. Under the principles established in EU law, the difference in pay could be attributed to a ‘single source’. Asda’s Executive Board exercised budgetary control over both the retail and distribution operations and therefore had the power to introduce pay equality.

The tribunal further accepted that the claimants’ terms were broadly similar to those of the depot employees and met the requirement under the Equality Act 2010 for ‘common terms’.

Consequences

This decision means that over 7,000 claimants can proceed with their claim against Asda, with an estimated value of over £100m. However, this is just the first hurdle for the claimants to overcome in what will no doubt be long-running and complex litigation, strongly resisted by the employer. There will be further hearings to determine whether the claimants were employed in work of equal value to that of the depot workers.

If the claim is ultimately upheld, it may have far-reaching consequences for other retailers. It has already been reported that a similar claim is being pursued by a group of Sainsburys shop workers.

The content of this article is for general information only. For further information regarding equal pay, please contact a member of Birketts’ Employment Team. Law covered as at October 2016.