Asda equal pay claims allowed to proceed
Thursday 20th October 2016
The ET has concluded in Brierley and ors v Asda Stores Ltd, that a group of Asda retail store workers can compare themselves to workers at a distribution depot.
A group of mainly female retail employees were seeking to bring equal pay claims against Asda, arguing that they were entitled to pay parity with staff employed in distribution depots. The retail staff argued that their work had historically been seen as “women’s work” and thought to be worth less than the work done by the predominantly male staff in the depot. In a preliminary hearing, the ET examined whether this was a valid comparison for an equal pay claim.
The ET held that the UK’s legislation must be construed where possible in accordance with EU law. The ET considered the ECJ decision in Lawrence and ors v Regent Office Care Ltd and ors, which held that the right to equal pay is not necessarily limited to employees working for the same employer, but can extend to the situation where the difference in pay is down to a “single source”, being for example a body responsible for and having the ability to remedy the inequality.
The ET went on to find that the “single source” test was satisfied. It rejected Asda’s argument that the division of its corporate structure into Retail and Distribution operations with pay-setting powers delegated to separate bodies meant there was no “single source”. The ET considered that Asda’s Executive Board had budgetary control and oversight over both Retail and Distribution and therefore was the single source with the power to introduce pay equality.
As the retail staff did not work at the same establishment, they also needed to show, under what is now section 79 of the Equality Act 2010, that “common terms” applied to them and the depot staff. Asda argued that there were different employment regimes at its retail stores and distribution depots. However, the ET accepted that the terms were broadly similar and met the test required by section 79.
The decision will allow several thousand equal pay claims to proceed and it is likely that test cases will now be brought in the next stage of the litigation.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.