In the recent case of Brierly and ors v Asda Stores Ltd, a Tribunal has ruled that Asda store workers are able to compare themselves to distribution depot workers for equal pay purposes.
The facts of this case are that a group of (mainly female) Asda employees who were employed on an ‘hourly rate’ basis, argued that they were entitled to the same rate of pay as the distribution depot employees (the majority of whom were male). They claimed that their duties had historically been thought of as ‘women’s work’ and therefore worth less than the duties carried out by the employees working in the depot.
At the preliminary hearing, the Tribunal was tasked with deciding whether the store workers were able to rely upon this comparison. Section 79 of the Equality Act 2010 states that an equal pay comparison is only valid if the claimant and comparator are both employed by the same employer and work at the same establishment; or if they are both employed by the same employer and work at different establishments but ‘common terms apply at the establishments’.
The Manchester Employment Tribunal firstly considered whether the above comparison would be allowed under EU law. It stated that although it is not enough that the Claimant and proposed comparator are employed by a single employer (there must also be a single ‘source’ i.e. a body responsible for this inequality but that could restore equal treatment), in this particular matter the single ‘source’ test had been satisfied, thus rejecting Asda’s argument that the division of the Company structure into Retail and Distribution sectors meant that pay-setting authority had been delegated to separate bodies.
The Tribunal further found that on the facts of the case in question, Asda’s Executive Board had exercised budgetary control over both the Retail and Distribution sectors and thus had the powers to restore pay equality. It distinguished this case from DEFRA v Robertson and ors where the Court of Appeal held that the Crown was not a single ‘source’ such as to establish comparability between separate government departments.
The Tribunal concluded that the Claimant’s satisfied the test for comparison under section 79 of the Equality Act 2010 and accepted their submission that their terms were broadly similar to the depot employees. All employees in question were paid by the hour and the structure of their terms as set out in their Employee Handbooks were also broadly similar. Although there were some differences in terms they were not considered material to the extent that they would challenge the comparison required by the Equality Act.
The ruling of the Manchester Employment Tribunal has had the effect that over 7,000 claims will now be allowed to proceed, the value of such claims estimated to be in excess of £100 million.
If you are an employer or employee and have concerns about Equal Pay, then please contact Katharine Kelly on 0151 239 1079 or firstname.lastname@example.org.