Case update (2): Gender pay gap – equal pay case to proceed

What do we already know?

We updated you in our October 2016 Newsflash Gender pay gap – Equal pay case to proceed and our November 2016 blog What does ASDA mean for me? on the preliminary Tribunal decision in Brierley and others v. ASDA Stores Ltd that approximately 7,000 current and former ASDA store workers bringing equal pay claims were entitled to compare themselves with depot workers in distribution centres.

The employer, ASDA, appealed this decision to the EAT.

What’s new?

The EAT has upheld the Tribunal’s above decision that employees (mainly female) who work in ASDA’s retail stores can compare themselves with higher paid men who work in distribution centres.  The EAT’s decision is available here.

The EAT agreed with the Tribunal that the value of work between these two groups of staff is of equal value and, therefore, that their pay should be comparable. In particular, when commenting on the issue of comparability, the EAT held:

• where there is a “single source” of pay and conditions for both the employee bringing the claim and their comparator, a direct comparison is permitted. Although in this case pay was set separately for the two groups of workers, ASDA’s executive board had the overall power to restore equality of pay. This was enough to constitute a ‘single source of pay and conditions’;
• the Tribunal is allowed to analyse the similarity between the terms of the employee bringing the claim and their comparator’s terms, in addition to considering whether those are “common terms” for the purposes of equal pay legislation; and
• where there is no direct comparator employed at the workplace of the employee bringing the claim, then a comparison against a hypothetical employee at the claimant’s establishment is allowed, if that hypothetical employee would have been employed on largely similar terms to the actual comparator.

The EAT strongly encouraged ASDA to solve its extensive equal pay issues between these two groups of staff. Nevertheless, the EAT has given ASDA permission to appeal to the Court of Appeal and ASDA’s legal team has indicated that it intends to do so. So watch this space for further developments…

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