In Brierley and others v Asda Stores Ltd, an ET has ruled that over 7000 female shop workers in Asda stores can compare their pay with men who are paid at a higher rate in Asda’s distribution centres. The case concerns over 7000 Asda hourly-paid female shop workers who are claiming that the work they do is of equal value to male comparators in Asda distribution depots and yet the comparators are paid substantially more than they are. The Claimants argue that the lack of equal pay is based on a historical perception that their type of work in the stores is ‘women’s work’ and worth less than the work in distribution depots, which was traditionally perceived as ‘men’s work’. Asda deny this.

The preliminary issue before the ET was whether employees at Asda stores can use employees at Asda depots as comparators. The ET decided that they could. Firstly, the ET held that Article 157 of the Treaty on the Functioning of the European Union (TFEU) – “Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied” – does have direct effect on equal value claims; the shop workers’ claims fell within Art. 157; and, there was a ‘single source’, i.e. the Asda Executive Board, who were ultimately responsible for regulating terms and conditions in both the retail and distribution divisions. Secondly, under S.79 of the Equality Act 2010, broadly common terms did apply in both retail and distribution, therefore comparisons can be made even though the shop workers and the distribution workers worked in different establishments. If that were not the case, then Art. 157 would still apply.

In a statement, Asda said that the preliminary decision is not determinative of the case’s eventual outcome as it relates to a technical preliminary issue of whether jobs in different parts of the business can be compared. Asda continue to strongly dispute the claims and is considering options for appeal. Having succeeded with the comparator argument, the next stage will be for the Claimants to show that their work is of equal value to the male distribution centre workers in terms of the demands made on them by reference to factors such as effort, skill and decision-making. The Law Gazette report that Leigh Day, the law firm who are representing the Claimants, say that the claims could lead to workers recovering more than GBP 100m.

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