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An equal pay claim involving thousands of employees of supermarket chain ASDA continued at the Employment Appeal Tribunal (“EAT”) last week.

Background

ASDA v Brierley and others involves some 7,000 claimants who allege that they have been subject to unequal pay for equal work while working for ASDA. The Claimants are among ASDA’s 133,000 (mostly female) retail staff who claim that they have been systematically underpaid, compared to the 11,600 (mostly male) workers in ASDA’s distribution warehouses. Historically, ASDA’s distribution warehouses were run separately to their retail arm and were frequently run by third parties. However, they are now run by ASDA directly. In addition to higher pay, and unlike their colleagues in retail, distribution workers enjoy improved terms such as overtime and paid lunch breaks, and the benefits of trade union bargaining power.

What was the appeal about?

To demonstrate that they are receiving unequal pay, the Claimants had to show that their work is of ‘equal value’ to the work undertaken by their colleagues. To demonstrate this, it is necessary to identify a comparator colleague, being a real person (of the opposite sex) in the same employment who does the same, similar or an equivalent job and is paid more. Retail employees have argued that the distribution warehouse workers are comparators. The Employment Tribunal in Manchester accepted this argument in October 2016 but ASDA appealed this decision to the EAT.

The Claimants successfully advanced various arguments to establish comparability between themselves and the distribution workers. These included:

  • the ‘single source’ requirement, that a sole body (ASDA’s board of directors) is responsible for the inequality between the two and could restore equal treatment;
  • that, on a broad comparison, the Claimants and the distribution workers have common terms and conditions of work; and
  • the ‘North hypothetical’, i.e. whether if a male distribution worker for some reason was required to work in the retail role, they would continue their current levels of remuneration and benefits.

ASDA unsuccessfully claimed that Article 157 of the Treaty of the Functioning of the European Union (which requires equal pay between men and women) does not have direct effect and so would not have been enforceable in the circumstances. ASDA argued that Article 157 did not apply for claims for equal value unless there had been a prior concession to that effect or where a job evaluation scheme had rated the work as equivalent.

What was the outcome?

The EAT upheld the decision of the Employment Tribunal in Manchester; that the distribution workers are suitable comparators for the purposes of the claim.

Perhaps unsurprisingly, ASDA have contested this case at every step. A success for the retail workers will prove expensive and damaging. The supermarket has indicated it will seek permission to challenge the EAT’s decision in the Court of Appeal. We will be keeping an eye on this case as it continues to develop.

More information about equal pay and sex discrimination claims can be found here (http://www.curzongreen.co.uk/practice-areas/employment-law/equal-pay.html)

If you have concerns about equal pay or sex discrimination, please contact us today for a free no-obligation consultation by calling either our London or High Wycombe offices on 0203 440 3705 or 01494 451355 respectively, or by email: This email address is being protected from spambots. You need JavaScript enabled to view it.

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