Supreme Court landmark ruling allows Asda workers’ equal pay claims to proceed

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In a landmark ruling which is set to have significant implications for supermarkets and their employees, the Supreme Court has held that, when making an equal pay claim, those who work in-store (mostly female) can compare their work to those operating in distribution centres (mostly male).

The decision in Asda Stores Ltd v Brierley and ors, potentially paves the way to a compensation pay-out valued at around £500,000 and follows a lengthy legal battle which amounts to the biggest equal pay claim ever brought in the UK private sector.

It will now be for Employment Tribunals to determine whether specific roles across both stores and distribution centres are of ‘equal value’ in individual cases. Asda Stores Ltd will be able to rely on any defence open to it, including that the difference in pay was due to as genuine material factor which was not itself discriminatory on the grounds of sex. Employment Tribunals will not be required to perform a line-by-line comparison of different sets of terms and conditions.

Asda Stores Ltd employs more than 130,000 employees in its UK stores, with approximately 11,000 employed at its distribution centres. More than 7,000 retail employees, mostly female, brought equal pay claims in the Employment Tribunal, with the aim of being allowed to compare their work with that of their higher paid, mostly male, colleagues working in distribution.

In accordance with Article 157 of the Treaty on the Functioning of the European Union, the Employment Tribunal held that the claimants needed to identify that there was a ‘single source’ of terms and conditions between them and their colleagues in distribution, and this was duly found to be the case as pay settlements for all workers were scrutinised by the same bodies.

The initial Employment Tribunal also found that the distribution employees were largely employed on the same terms and conditions as those working in stores and that any differences that existed were not sufficient to derail the claim.

Both the Employment Appeal Tribunal (EAT) and Court of Appeal rejected subsequent appeals by Asda Stores Ltd against the initial ruling. The Court of Appeal noted that common terms and conditions applied to employees working in either setting and this was sufficient to allow store workers to compare themselves to distribution centre workers comparability under the Equal Pay Act 1970 and Equality Act 2010.

A further appeal by Asda Stores Ltd to the Supreme Court was unanimously dismissed.

If you have any queries regarding this or any other employment matter, please do not hesitate to contact a member of the team.