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Outcome of recent case leads the way for equal pay claims

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A case in the Employment Tribunal has found that a group of Asda retail workers can compare themselves to distribution depot workers for the purposes of an equal pay claim.  The ruling means that over 7,000 claims will proceed against the store, equating to over £100m.

Under the Equality Act (2010) men and women should receive equal pay for equal work.  This legislation does specify that the two comparators must fall under one of two categories:

  • They must both be employed by the same employer and work at the same establishment
  • They must both be 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.

In the case of Brierley and others v Asda Stores Ltd, a group of mainly female employees who work in the retail stores brought a claim against Asda.  They claimed they should be paid the same pay as those working in the distribution depot, consisting of mainly male employees.  Asda argued that the claims could not be brought under the Equality Act 2010 as even though they work for the same employer, the retail and distribution entities of the business are overseen by separate corporate bodies, and so are subject to different terms of employment.  They went on to claim that there are different employment regimes based at the stores compared to the depots, as well as the fact that no depots are located on store sites, and so no comparison could be made.

The Employment Tribunal rejected both of these statements.  For the first fact, it was agreed that Asda has overall budgetary knowledge and control and so even though two different entities make salary decisions, they would have been aware of the negligence when it comes to equal pay.  On the second count, the tribunal came to the conclusion that there were common terms between to the two comparators; they were both paid hourly and the terms and conditions within the staff handbooks were broadly the same.

Emma Kemp, Employment Lawyer, comments, “It is possible that Asda could appeal this decision, however this ruling is an interesting one in light of the upcoming Gender Pay Reports, due to be implemented from April 2017.  This will mean that any business with over 250 employees will be required to produce an annual report detailing their gender pay gap and display this on a Government website as well as their own.”

For more details on Gender Pay Reports or to discuss any concerns you have in your business regarding equal pay, you can contact Emma or the employment team on 02380 717717 or email employment@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.