February 5, 2019
It is an established legal principle in UK law that men and women should receive equal pay for equal work.
In the case of Asda Stores Limited v Brierly, thousands of female Asda staff working in the retail stores sought to compare themselves with the predominantly male higher-paid staff in Asda’s warehouses and distribution depots.
The supermarket giant argued that it does not have to pay the retail staff and the warehouse workers the same hourly rates, because their roles are not comparable for the purposes of equal pay law.
The Court of Appeal has now held that the retail staff can compare themselves, for the purposes of equal pay, with the employees working in the warehouses – even if they operate under a different management structure.
In an equal pay claim, a claimant needs to point to a comparator of the opposite gender to them who works at the same establishment as the claimant, or if they work at different establishments, where “common terms are observed”. In practice, this involves a broad comparison of terms applicable to a wide range of employees; the terms do not have to be identical but they must be “broadly similar”.
Asda argued that the claims should be struck out on the grounds that the retail staff could not compare themselves with their chosen comparators, the warehouse staff. The Court of Appeal disagreed and held that common employment terms were observed in both stores and warehouses; therefore, the retail staff claims could continue using the warehouse staff as their comparators.
The next stage will be for an Employment Tribunal to decide whether the work actually carried out by the shop floor and warehouse staff constitutes “equal work” or “work of equal value” and therefore should be paid at the same rate.
However, it has been reported that Asda will first appeal the Court of Appeal’s decision to the Supreme Court, meaning that this issue will need to be heard again before the case can finally be concluded. We will provide updates as this legal battle continues.
The case is an important reminder of the fact that employers can fall foul of equal pay law inadvertently, even if they have no intention of discriminating against employees on the basis of their gender and believe that certain roles are sufficiently different as to justify a different pay rate.
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