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Case update (2): Equal pay – Comparators

What do we already know?

We updated you in our October 2016 Newsflash Gender pay gap – Equal pay case to proceed, our November 2016 blog What does ASDA mean for me?, and September 2017 Newsflash Case update (2): Gender pay gap – equal pay case to proceed on the preliminary Tribunal and EAT’s decisions in Brierley and others v. ASDA Stores Ltd that former ASDA store workers bringing equal pay claims were entitled to compare themselves with depot workers in distribution centres.

What’s new?

The Court of Appeal has made two decisions on preliminary points in the above long-running equal value claim against Asda, available here.  In both cases the Court of Appeal has ruled in favour of the store workers claiming equal pay with distribution depot workers.

  1. The Court of Appeal has upheld the above Tribunal and EAT decisions that the ASDA store worker claimants (now standing at around 30,000) are entitled to compare themselves with depot workers in distribution centres. This decision means that in the majority of cases claimants will be able to compare themselves with any employee of their employer, wherever they work; the exception will be where employment terms are site-specific perhaps because of collective bargaining relevant only to that site (such that a relevant employee doing the same job at different sites would be on different terms).
  2. The Court has ruled that claimants can submit multiple claims on a single ET1 form provided their roles are similar (they need not be identical) and the claims are based on the same set of facts. Further it is not necessary for all the claimants on one form to have the same comparators.  The ruling means that employers are unlikely to succeed in striking out a claim that has improperly grouped claimants together, with Tribunals more likely to order that claims be re-issued and perhaps only considering strike-out if this order is ignored.


Comment:  Asda may yet seek to appeal to the Supreme Court on the preliminary issue of correct comparators.  This is despite the fact that the case has yet to move onto the principle issues of whether or not the retail employees’ work is of equal value to that of the distribution employees, and if it is, whether the difference in pay constitutes unlawful sex discrimination, or whether Asda has a non-discriminatory justification for the difference. If each issue is appealed to this extent, it will be a long time before any final decisions are made on this case. However, given the size of the bill for back claims if the claimants are successful, it is not surprising that Asda is showing no signs of giving up the fight!

While the facts are specific to Asda, any employer with different groups of predominantly male or female workers should review its pay practices, whether or not these groups work at the same site. The intensive activity by many employers over the last year or two to report on their gender pay gap and analyse the reasons for it has highlighted pay discrepancies between groups of workers. Employers are well advised to consider whether any highlighted discrepancies are justifiable or, if not, take action to address them.

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