An Employment Tribunal has held in Brierley v Asda Stores Limited that a group of Asda store workers can compare themselves to distribution depot workers for the purposes of an equal pay claim.  The ruling means that 7,000 claims can proceed, the value of which has been estimated at over £100 million.

A group of (mainly) female employees of Asda, who work in its retail stores primarily as checkout staff and shelf stackers, sought to bring equal pay claims.  They argue that they are entitled to equal pay with Asda’s distribution depot employees, who are mainly men working in the warehouse.  They Claimants claim that their work had historically been seen as “women’s work”, thought to be worth less than the work done by the men in the depot.

Under the Equality Act 2010 an equal pay comparison can only be made if the Claimant and the comparator are both employed by the same employer and work at the same establishment, or if they are employed by the same employer and work at different establishments but “common terms apply at the establishments”. The difference in pay must be down to a “single source” i.e. a single body must be responsible for the inequality and be capable of rectifying it.

The Tribunal rejected Asda’s argument that the division of its corporate structure into Retail and Distribution operations meant that pay-setting powers had been delegated to separate bodies.  It took the view that the “single source” test was satisfied on the facts, as Asda’s executive board exercised budgetary control and oversight over both Retail and Distribution and so had the power to introduce pay equality.  The Tribunal also accepted that the Claimants’ terms were broadly similar to those of the depot employees – they were hourly paid and the structure of the terms in the respective handbooks was broadly the same.

There will now be a further Tribunal hearing to consider whether the jobs are of equal value. If the claims succeed it will have wide reaching implications both for the retail sector and beyond.