In Brierley and others v Asda Stores Ltd the Employment Tribunal held that a group of female retail store employees were entitled to compare themselves to a group of male distribution depot employees for the purposes of their equal pay claims. In this briefing we explain what this case is about, the potential impact for employers and the steps that affected employers should consider taking now.

What is this case about?

This case concerns equal pay claims brought by over 7000 claimants (mainly female employees) employed by Asda in hourly paid positions at its retail stores. They claim that employees in Asda's distribution depots (mainly male employees) are carrying out work of equal value to them but are paid substantially more.

Asda initially applied to the Employment Tribunal for the proceedings to be stayed indefinitely in order for the claimants to bring proceedings in the High Court. Asda contended that it was appropriate for the High Court to hear the claims because of the complexity of the issues, covering both EU and domestic law, and due to the potential significance of the case for Asda and private sector retail employers more widely. On 22 June 2016, the Court of Appeal determined that it was appropriate for the claims to proceed in Employment Tribunal rather than the High Court.

In October, a Preliminary Hearing was held to address the issue of whether the claimants were entitled to compare themselves with the depot workers. If they could not, then the substantive claims could not proceed. Despite their working at different establishments, the Tribunal decided that the retail store workers could compare themselves to the depot workers because "'common terms" applied to them.
Subject to any appeal, this case will proceed to a full Employment Tribunal hearing to determine whether:

  • The work carried out by the claimants in the retail stores is of equal value to their comparators in the distribution depots.
  • If the work is of equal value, whether the claimants are paid less.
  • If the claimants are paid less, whether a material factor defence is available to Asda.

What is the potential impact of this case?

This is the first major private sector equal pay claim of its kind, following the numerous claims which have been brought (mostly successfully) in the public sector. Claimant lawyers have been threatening to pursue claims in the private sector for some time.

If the claimants are ultimately successful, this could have a significant impact on the private sector – with employers in the retail sector at the forefront, given the similarities and relevance to them.

Equal pay claims are notoriously expensive due to their complexity and the length of time they take to resolve. Typically, such claims are brought en masse and with the assistance of a trade union. Therefore, there is a lower risk of such claims where the workforce in question is not unionised.

What steps can affected employers take now?

  • Conduct a high level audit pay of structures and terms and conditions: a review of pay structures and terms and conditions of employment in various establishments (including retail and distribution centres) will help employers assess the risk for the business. Employers should also consider obtaining legal advice on this process in order to attract legal advice privilege to the findings.
  • Conduct an equal pay evaluation: if a significant risk is identified then consideration should be given to instructing a job evaluation expert to conduct an evaluation into the pay structures and terms and conditions of employment. Again, legal advice should be obtained in order to achieve the protection of legal advice privilege.

Brierley and others v Asda Stores Ltd