Equal pay claimants must be able to compare themselves to a valid comparator, and the comparator must be a real person employed by the same, or an associated employer. If the comparators are at another establishment (cross-establishment comparators) then Equality Act 2010 ‘common terms’ must apply.
The claimants, who were predominantly women, seek compensation on the basis that in the six-year period prior to commencing proceedings in 2014, they received less pay than a valid comparator for the same work. The cross-establishment comparators chosen are employees at Asda’s distribution depots, who are predominantly men.
Asda applied for dismissal of the claims on the basis of lack of common terms, since the retail and distribution centres were at separate locations.
However, the court dismissed the supermarket’s appeal, in a unanimous ruling, Asda Stores v Brierley [2021] UKSC 10.
Delivering judgment, Lady Arden said the case was ‘important because otherwise an employer could avoid equal pay claims by allocating certain groups of employees to separate sites so that they can have different terms even where this is discriminatory’.
Leigh Day solicitors, which is representing the 44,000 workers, said the claimants will now argue the roles are of equal value and, once that issue is decided, the case will move to the question of whether Asda can establish a reason, other than sex discrimination, why the roles are not paid equally.
Leigh Day also represents clients from Sainsbury’s, Tesco, Morrisons, the Co-op and Next in similar equal pay cases, which may be impacted by the judgment.
Rhona Darbyshire, employment partner at law firm Cripps Pemberton Greenish, said: ‘This is a monumental decision and the ramifications are significant not only for the 45,000 ASDA employees who brought the claim but also for the hundreds of thousands more employees who work for similar businesses. The likes of Tesco, Sainsburys, Morrisons and Co-op all have similar claims waiting in the wings with a combined estimated value of 8 billion. This decision will be a real boost of confidence to the claimants and to any potential future claimants thinking of bringing a similar equal pay cases. Hopefully this decision will also encourage businesses in the private sector to reflect carefully on the true meaning of equal pay for equal work.’
Susan Harris, legal director at GMB, which is supporting many of the workers, said the decision was ‘a massive victory for Asda’s predominantly women shop floor workforce’.
