The Supreme Court has ruled against Asda in its long-running equal pay battle between retail employees (mainly women) who claim they should receive the same salary as the company’s distribution staff (mainly men). Equal pay rules are designed to ensure men and women are paid the same when they are doing the same work, work rated as equivalent or work of equal value.
In the case of Asda Stores Ltd v Brierley (judgment given on 26 March 2021) 35,000 claimants who worked in Asda retail sought to compare themselves to employees at Asda’s distribution depots.
The depots and retail stores were based at different sites and the Claimants and Comparators were considered to be working at different establishments. They had different terms and conditions of employment which led to Asda arguing that there was a lack of “common terms” on which to base their comparison.
Where there are no comparators who work at a claimant’s establishment, a threshold test can be conducted by asking essentially whether the comparators would have been (ie hypothetically) employed on substantially the same terms as the claimants (this consideration has become known as the “North Hypothetical”).
Asda appealed to the Supreme Court, having lost in previous hearings in lower courts.
The Supreme Court determined that it is possible to apply the “North hypothetical” to determine whether the comparators would have been employed on broadly similar terms if they were at the same establishment. A line-by-line comparison of common terms is not required. The Supreme Court decision has clarified the threshold for the “common terms” test is relatively low.
This is not the end of the matter, of course. The retail staff have only won the right to have their roles compared to distribution workers, to establish if they are of equal value (ie that the claimants can use terms and conditions of employment of the distribution employees as a valid comparison). The tribunal will still have to consider whether the two groups performed work of equal value.
In order to avoid Equal Pay litigation, it would make sense for employers to periodically audit their pay scales, job descriptions and roles. Even jobs which have different titles can be compared in terms of value. Make sure you have a clear procedure for reviewing pay regularly and resolving issues or queries quickly. Businesses may even be doing so, at least to a degree, imparts to satisfy gender pay reporting requirements.