Different Role, Different Location - Equal Pay?
In a preliminary hearing for the case of Brierley and ors v Asda Stores Ltd, the Employment Tribunal (ET) has ruled that a group of 7,000 store workers can compare themselves to distribution depot workers for the purpose of bringing an equal pay claim.
The workers will now be able to proceed with their claims for equal pay in what is the UK's largest private sector equal pay claim.
Legal Background
Section 79 of the Equality Act 2010 (EqA 2010) provides that for an equal pay comparison to be valid, the claimant and a chosen comparator must be employed by the same employer and either work at the same establishment or work at different establishments where 'common terms apply at the establishments' either generally or as between the claimant and the comparator.
Facts
A group of Asda store employees (the Claimants), who are mainly female, are seeking to compare themselves to Asda's distribution depot employees, who are generally male, in order to bring a claim against Asda for equal pay.
At this preliminary hearing Asda argued that the store workers could not legitimately compare themselves to the depot workers because the stores and distribution centres were in different locations, with pay arrangements governed by separate bodies, and the jobs had different demands with no 'common terms'.
Employment Tribunal
The ET ruled that the Claimants were entitled to rely on the comparison between store workers and distribution depot workers. It accepted that there were common terms between the two sets of workers; they were all hourly paid, there was a 'single source' that was responsible for their pay and their Handbooks were broadly the same.
It is important to note that it has not yet been decided whether the two comparable roles are like work, work of equal value or work rated as equivalent and therefore the decision in this preliminary hearing provides no indication as to whether the equal pay claims will be successful. This ET ruling simply confirms that primarily female store workers are able to compare their roles and pay to primarily male depot workers in this case.
Best Practice
Whilst this decision does not contain anything new from a legal point of view, it will be of great interest to retailers and private sector employers in general. Historically, mass equal pay claims have been largely limited to the to the public sector. This appears to be changing and success for the Asda employees may well lead to further claims.
The case comes at the same time as scrutiny of private sector employment practices in the clothing retail sector (in particular Sports Direct) and the requirements to provide gender pay gap information.