Equal Pay: Comparators

The Supreme Court has decided that a group of Asda retail employees could compare themselves to a group working in Asda’s distribution depots, for the purposes of pursuing their claim for equal pay.

Asda Stores Ltd v Brierley and others [2021] UKSC 10

Facts

A large group (approximately 35,000) of predominantly female retail employees are bringing a claim for equal pay against their employer, Asda. In seeking to establish their claim, they are comparing their pay with that of higher-paid employees in Asda’s distribution depots, who are predominantly male.

In 2019, the Court of Appeal upheld the decisions of the Employment Tribunal and the Employment Appeal Tribunal that the retail employees were entitled to compare themselves to the depot employees (see our previous summary of the Court’s decision).

Asda appealed to the Supreme Court.

Supreme Court decision

The Supreme Court has dismissed Asda’s appeal, finding that the retail employees are entitled to compare themselves to the depot employees in order to establish their claim for equal pay.

The main question for the Court to determine was whether the two groups of employees were employed on ‘common terms’ within the meaning of the applicable equal pay legislation. The retail employees and the depot employees are employed at separate locations on different terms that are set through separate management processes but under the scrutiny of the company’s executive board. Claimants can compare themselves with employees at different establishments, if they can show that the comparators’ terms and conditions would be substantially the same if they had been employed at the same establishment as the claimants. The Court was satisfied that had the depot employees been employed in their role at the same location as the retail employees, they would have been employed on the same, or substantially the same terms as they are at their existing location. This meant that the common terms test was satisfied.

Consequences

The decision that retail employees are entitled to compare themselves with the depot employees is a ruling on a preliminary issue in the claim. The claimants will still need to show that they perform work of equal value to that of the depot employees, and Asda, in its defence, can still argue that there is a genuine material factor to account for the difference in pay. This long-running and complex piece of litigation is far from over.

In its judgment, the Supreme Court acknowledged that the case had become “markedly over-complicated” and provided guidance on how the question of ‘common terms’ as a preliminary issue should be dealt with in future cases in order to ensure that the litigation process is not unnecessarily prolonged.

These articles are from the April2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.