In the long-running case of Asda Stores v Brierley and others, the Supreme Court ruled that, for the purposes of an equal pay claim, a group of female retail store employees could rely upon the work of mainly male depot distribution employees for comparison even though they are located at different sites.
Generally speaking, an equal pay claim can only progress if the claimant can establish a disparity between their contractual terms and those of an appropriate comparator of the opposite sex performing equal work at either:
- the same establishment; or
- a different establishment where “common terms” apply either generally or between the individual and their comparator.
Whilst the female retail store employees and their proposed depot comparators are all employees of Asda, they work from different establishments. In these circumstances, the concept of whether “common terms” apply to both establishments had to be considered.
As no depot workers worked in stores and vice versa, the Supreme Court confirmed that it was necessary to determine whether the depot workers would have been employed on broadly similar terms to their current ones if they had hypothetically worked at the same site as the retail store workers (regardless of how unlikely this might be). At the initial stages, the Employment Tribunal had found that the distribution employees would have been employed on substantially the same terms in these circumstances and the Supreme Court did not interfere with that decision. The depot workers were therefore appropriate comparators.
This is however far from the end of this litigation. To succeed with their claim, the female workers will need to go on to establish that their work is of ‘equal value’ to their male comparators, and any differential in pay will need to be found to be due to gender and not a material, non-discriminatory, reason.