Equal pay: Asda Stores Limited v Brierley and others

• United Kingdom

• Employment law

26-03-2021

The Supreme Court has upheld the claims brought by predominantly female Asda shop workers that it is appropriate for them to compare themselves, for equal pay purposes, with male distribution depot workers who work at different locations.

However, establishing comparators is just the first hurdle in this fact-sensitive and long-running litigation. A final outcome is not expected for some time to come. 

Background: UK equal pay law

UK equal pay legislation hinges upon female workers establishing they work “in the same employment” as their intended male comparators. Where a Claimant and her comparator work in the same establishment, it does not matter what employment terms each has – a comparison can be made between them. However, where the comparator works at a different establishment the position is more complicated. In such cases the Claimant needs to show that the employer applies “common terms” of employment, at both the Claimants’ and the comparators’ establishments (the terms do not have to be identical or the same).

The Claimants in this case are female workers employed in a variety of roles in Asda stores. Their proposed comparators work in distribution depots which are entirely different establishments. At the preliminary hearing, an Employment Tribunal (ET) found that the female shop workers could legitimately bring equal pay claims as Asda applied “common terms” across its establishments. Today, the Supreme Court (SC) has declined to interfere with the conclusions of the ET judge.

Supreme Court judgment: Asda Stores Limited v Brierley and others 

The SC has unanimously concluded that:

• “common terms” has not been defined in legislation and case law has progressively sought to give effect to Parliament’s intentions across different factual circumstances. The SC stated that it is a threshold test to “weed out” unrealistic comparisons, such as where differences in pay exist based on geographical factors
• previous case law, including a 2013 SC judgment (the North case), was relied upon in today’s decision and applied. As such, the SC confirmed that the correct approach with determining “common terms” is to make a comparison by asking whether the terms enjoyed by the proposed comparators were broadly the same at the distribution depots and at Claimants’ establishments, but not necessarily identical
• if there are no employees of the comparator’s group at the Claimants’ establishment and it is not clear on what terms they would have been employed there, this may be a hypothetical exercise which considers whether the comparator’s group would have been employed on broadly similar terms to those which they have at their own establishment if employed on the same site as the Claimants. For example, by envisioning a depot next to the retail store at the Claimants’ establishment and asking whether, on this assumption, the distribution employees would continue to be employed on the same or substantially the same terms as they were employed at their own establishment
• the SC said that the ET had been wrong to perform a line-by-line comparison of the specific terms and conditions of employment of the distribution employees versus the retail employees in order to identify relevant “common terms”. It also provided guidance on the future case management of issues arising from similar cross-establishment comparisons to simplify future tribunal hearings in other claims.

Practical implications

Establishing appropriate comparators for equal pay claims is just the first hurdle for the Claimants. For example, they will need to establish their work is of equal value and consideration will need to be given to any material factor defence put forward by Asda. Therefore, while significant for the parties, this judgment is far from being the last word.

In terms of broader impact, it should be noted that this decision is fact specific, reflecting the organisational structure operated by Asda, its terms and conditions of employment and its pay system.

For both these reasons we would recommend exercising caution when assessing its repercussions more generally.