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22nd November 2016

Broadening the scope of equal pay claims

In the case of Brierley and others v Asda Stores Ltd the claimants are a group of over 7,000 Asda store workers arguing that the work they do is of equal value to Asda distribution depot workers who are paid substantially more. The group of store workers are overwhelmingly women and the distribution depot workforce mainly men. The claimants asserted that the differences in pay are based on historical discrimination where retail work was perceived as "women's work" and considered to be worth less than work done by men.  

The Employment Tribunal has given a wide interpretation of the test to determine an equal pay comparator. In order for an equal pay comparison to be made the employees must have the same employer and place of work or, if the employees are employed by the same employer but work at different establishments "common terms" must apply for the comparator to be valid. The Tribunal held that the terms of the store and depot employee are broadly similar as they are all hourly paid and the structure of the terms in the respective Handbooks are broadly similar, despite the differences in specific terms.

The tribunal also considered the "single source" test under EU law. The tribunal held that although the pay-setting powers had been delegated to separate bodies the "single source" test was met. Since Asda's Executive Board had and exercised budgetary control and oversight over both bodies they have the power to introduce pay equality. 

This decision on the wide nature of a comparator paves the way for over 7,000 potential equal pay claims to be brought against Asda, with an estimated value of over £100m.