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5th February 2019

Equal pay comparison scope in the retail sector

5th February 2019

Equal pay comparison scope in the retail sector

Sarah Hayes

Posted: 5th February 2019

T: 023 8048 2165

E: Email Me

(Co-written with Jonathan White, Trainee Solicitor)

In respect of an equal pay claim against a major supermarket, a group of in-store employees have been permitted to compare themselves with other types of employees – specifically those at the supermarket’s distribution depots.

The recent Court of Appeal decision in Asda Stores Ltd v Brierley & others [2019] EWCA Civ 44 upheld the decision of an earlier employment tribunal.

Legal background

The Equal Pay Act sets out the principle that men and women should receive equal pay for equal work. Employees are entitled to contractual terms that are as favourable as those of a comparator in the “same employment” of the other gender if they are employed on equal work.

It is upon these legal principles that thousands of predominantly female employees brought an equal pay claim on the basis of a comparison to their predominantly male distribution colleagues.

The outcome

The tribunal judge initially considered the extent to which this was a legitimate comparison under both the Equal Pay Act and the Equality Act.

Amongst other matters, the claimants were required to establish a single source of terms and conditions between themselves and the proposed comparator distribution employees, and that the element of same employment was satisfied.

The single source was the executive board of AS Ltd which, together with the members or sub-committees, exercised budgetary oversight over distribution and retail employees. In respect of “same employment”, the judge found that the different working establishments were ones ‘at which common terms and conditions of employment are observed either generally or for employees of the relevant classes’.

The Court of Appeal made clear:

  • Common terms must apply between the establishments, not between the claimant/comparator;
  • Common terms can apply at the different establishments even if one class of employees would never be employed at the other establishment; and
  • The test for “same employment” requires broadly common terms, not for all terms to be common.

The Court of Appeal decided that AS Ltd applied common terms and conditions for both classes of employee and this was sufficient to establish comparability under the Equal Pay Act and the Equality Act.

It is unclear exactly how far this judgment can and will be taken in equal pay claims but it is certainly one for all to be aware of with key clarifications on how to construe common terms across a workforce.

If you are concerned about how this case could impact upon your organisation, or have any questions in relation to equal pay claims, please contact me.

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Sarah Hayes

Posted: 5th February 2019

T: 023 8048 2165

E: Email Me