Asda’s Equal Pay Appeal is Dismissed | Berry Smith

The Employment Appeal Tribunal has dismissed an appeal by Asda in an ongoing equal pay case. Although the appeal relates to a technical preliminary issue, it has far reaching implications.

The case, Brierley and others v Asda Stores Ltd began in 2008 and it has been reported that the value of the claim is £100m. One consequence is mass levels of media attention..

The claimants, Asda retail store staff who work in Asda’s host of supermarkets, and who are predominantly female, are paid on average between £1 and £3 less per hour than Asda distribution depot employees, who are predominantly male.

The principle that women and men should receive equal pay for equal work is enshrined in the Equality Act 2010. There are three categories of equal work:

  • Work of equal value (including in terms of effort, skill or decision making);
  • Work rated as equivalent (under a job evaluation study); and
  • Like work (work that is broadly similar or is the same).

In this case, the claimants argue that their work is of equal value to that carried out by male distribution depot employees and they are therefore valid “comparators” for equal pay purposes. The employment Judge sitting at the Manchester Employment Tribunal in October agreed with them in the first instance.  However, Asda appealed to the Employment Appeal Tribunal on 10 different grounds. All grounds were unsuccessful and the Employment Appeal Tribunal has allowed the group equal pay claim to proceed.

Although ASDA has sought permission to appeal to the Court of Appeal, this case could have wide implications. It will no doubt alert other employers to the fact that even where there are considerable differences between the working arrangements of two groups of employees, there may still be enough to enable one group to use the group as a comparator for the purposes of an equal pay claim. 

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Equal Pay

Sarah Alford, an Associate working in Employment and HR at Berry Smith providing legal help and guidance on a wide range of issues.