The Supreme Court's decision in Asda Stores v. Brierley confirms that for the purposes of their equal pay claims, retail staff working in Asda supermarkets can compare themselves to distribution staff working in Asda warehouses.
The decision is significant because it clarifies the test that applies when the chosen comparator is in the same employment, but works at a different establishment to the claimant. Where this is the case, "common terms" must apply at both establishments.
The Supreme Court unanimously said that the distribution employees would be employed on the same or substantially the same terms if they worked at a supermarket store. They are therefore employed on common terms and conditions and are accordingly valid comparators. This is so even though none of Asda's depots are actually located on the same site as any of the supermarket stores. It is sufficient that if distribution employees did work at a hypothetical depot next to a supermarket store, distribution terms and conditions would apply to them.
The Supreme Court emphasised that this "common terms" test should not be a major hurdle for claimants to satisfy. It doesn't require an employment tribunal to conduct a line-by-line comparison of different sets of terms and conditions to decide if they are the same or substantially similar. The test is whether or not the comparator's terms are broadly the same at their establishment and at the claimant's establishment.
The potential liabilities in the Brierley case are significant, as there are 35,000 Asda claimants who are seeking up to six years' back pay. However, the Supreme Court's decision is only the conclusion of a preliminary step in the litigation. The case now goes back to the employment tribunal, where the claimants must show that they perform work of equal value to the distribution employees. Asda can also raise the defence that any difference in pay is due to a non-discriminatory material factor.
If you would like more information on how to manage equal pay or other pay discrimination issues in the workplace, please get in touch with your usual Mishcon contact or with a member of the Employment team.
This was first published on Lexis Nexis on the 26 March 2021.