Retail and distribution comparable for equal pay

Since 2010 the provision for equal pay, in UK law have been contained within the Equality Act 2010. There are three types of equal pay claims; for a claimant to succeed they will have to show, in relation to a comparator that they were carrying out:

Like work;
Work rated as equivalent, or;
Work of equal value.

Under the old provisions in the Equal Pay Act 1970, a woman could compare herself to a man if she was in the “same employment”. Although this allowed some scope for comparison between employees within different establishments in Great Britain, this scope was narrower than the present definition. The present definition allows broadly for comparison between two employees who are employed by the same employer (or by an associated employer) at the same establishment or where they are employed by the same employer (or by an associated employer) at different establishments by where common terms apply.

Retailer Asda has 630 stores in the UK. It also has a network of 24 distribution centres throughout the UK, none of the retail and distributions centres are co-located. The retail and distribution operations have different terms and conditions. However, both operations report to the Asda board which in turn reports to Asda’s owner Wal-Mart Inc.

At a preliminary hearing in the Manchester Employment Tribunal, an employment judge decided that a group of predominately female workers within Asda’s retail operation could compare themselves with a predominately male group of workers within the distribution operation. Asda challenged the comparison on a number of grounds under both European and domestic law, however the judge found that there was a single source (the board and owners of Asda) responsible for the alleged inequality and allowed the claim to proceed.

The CIPD have reported that the sums in issue in this case could be more than £100m and various sources have suggested that Asda are considering an appeal against this preliminary decision. This case has the potential to be one of the most significant equal pay cases for many years and its outcome is being watched closely by many including employers and trade unions.

Brierley v Asda Stores Ltd, ET/2406372/2008

27 October 2016

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