Lead Forensics
Prettys Solicitors Ipswich
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Equal pay claims hit the private sector—Brierly and others v Asda Stores

November 2016


In the case of Brierly and others v Asda Stores, the Employment Tribunal (ET) ruled on the 14 October 2016 that depot workers can be used as a comparison for store workers in equal pay claims as they are employed on common terms.



The Equality Act 2010 implemented the principle that men and women should receive equal pay for equal work, work of equal value. This has been a huge issue for the public sector over the past few years and is now starting to be an issue for the private sector too.


In a case that is estimated to be worth over £100 million, nearly 7000 current and past employees, of which the majority are female but with around 30% male, are seeking redress. Their argument is based on the fact that the workers in Asda’s distribution depots, who are predominantly male, are earning substantially more for work which is of equal value. They are arguing their role has traditionally been seen as ‘women’s work’ and thus worth less. Asda had initially tried to put an indefinite stay on the matter which would have forced it to be heard in the High Court but the ET rejected this. Asda appealed and on 22 June 2016 the Court of Appeal handed down a judgment concurring with the ET’s decision to reject the stay.

Most recently the ET  handed down a decision on the preliminary issue of whether the store workers could be compared to the distribution workers. Under S.79 of the Equality Act 2010, an equal pay comparison is only valid between the claimant and a comparator if they are both employed by the same employer and work at the same establishment; or if they are both employed by the same employer and work at different establishments but ‘common terms apply at the establishments’ either generally or as between claimant and comparator.

The Tribunal decided that they could use the depot workers as comparators as they are employed on common terms. This now allows the focus of the litigation to be upon the more substantive issue of whether the claimants’ work in stores is of equal value to their co-workers in the depots.

What does this mean for employers?

This case is worth keeping an eye on for employers, as, if the Tribunal accepts the claimant’s argument, employers will have to examine the whole of their business when attempting to protect themselves from equal pay claims. It is not just about the location of the employees but also the terms they are employed under.

The effects of this case are not just limited to large retailers either, with smaller numbers of claimants able to claim for the same thing at smaller businesses.

Asda have said that they are looking to appeal the decision and claim that they always pay their workers equally across all locations. They claim that pay rates differ from stores to distribution centers for legitimate reasons. The case continues...



Kelly Sayers

Partner - Head of Employment Services

e ksayers@prettys.co.uk

t 01473 298291

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