Asda equal pay claim

Can Asda’s retail staff compare themselves to higher paid distribution staff for the purposes of an equal pay claim?

The Issue

Claimants who bring equal pay claims have a number of hurdles to overcome, the case of Asda Stores Ltd v Brierley and others [2021] UKSC 10 is the latest case in the Equal Pay battle between Asda and its employees.  

The Law  

In accordance with the legislation governing equal pay, Claimants much choose a valid comparator, who is a real person (not hypothetical) employed by the same employer. The comparator must be employed at the same establishment as the Claimants, or at a different establishment at which ‘common terms’ apply.  This means it is possible for a Claimant to compare herself with a man doing a different job at a different location. The hypothetical comparator was the key issue in the Asda case.

The Facts

The Claimants, who work in Asda’s retail branches argued that they are paid less than those employed at Asda’s distribution centres, who are mainly men (the distribution employees). They were seeking compensation on the basis that in the six years prior to issuing proceedings they received less pay than the distribution employees for work of equal value.

The question of whether the distribution employees are valid comparators for the purposes of the claim was considered by the Employment Tribunal (ET) who ruled in favour of the Claimants. Asda subsequently appealed to the Employment Appeals Tribunal (EAT), the Court of Appeal and finally the Supreme Court (SC). The SC also decided in favour of the Claimants and confirmed that they could compare their pay with that of the male distribution employees, even if the Claimants were not located at the same premises as the distribution workers. 

The SC determination clarifies how the ET should approach such cases in the future.

In dismissing Asda’s appeal, the SC confirmed that where there are no comparators at the Claimant’s establishment, and it is not clear on what terms they would have been employed there, the North hypothetical’ principle can be applied (established in Dumfries and Galloway Council v North) to consider whether the comparators would have been employed on similar terms to those they are currently on as their own establishment, had they been employed at the same site as the Claimants.

The SC also considered that the ET proceedings were considerably complicated, and confirmed that there was no requirement to carry out a line by line comparison of the specific terms and conditions of employment of each employee and comparator and the fact finding exercise should be kept within tight bounds.

The SC commented that this is a threshold test, it is designed to provide a fail-safe to the employer that a case will not proceed, if it relies on a comparison which is clearly shown at the outset to be unrealistic.

The outcome of this case does not mean that the Claimants have been successful in their claims for equal pay. All that has been determined is that they can use the terms and conditions of employment enjoyed by the distribution employees as a valid comparison. The Claimants still need to show that they performed work of equal value.  At this point Asda is likely to argue that a difference in pay is justified because the value of the Claimants and comparators work when compared is not of equal value.  Asda would also be able to use the ‘genuine material factor’ defence if there is a valid reason for the difference in pay providing it is non-discriminatory.

Points to take away from the case

Equal pay claims are complex and lengthy and a Claimant has a number of hurdles to overcome in order to be successful.  This ruling shows that the comparator in equal pay claims does not have to be employed on identical terms or the same terms as the claimant and a broad comparison is instead needed to determine whether the terms are substantially the same at the Claimant’s and the comparator’s site.