Brierley v Asda Stores Ltd, a substantial equal pay claim by a group of mainly female store workers, seeking to compare themselves with the mainly male workforce at the company's distribution depot, has been in the pipeline for some time. The Court of Appeal recently confirmed that the claimants couldn’t be forced to bring their claims in the High Court. The Court rejected the employer's arguments that the claims were so complex and of such significance for other private sector employers that the High Court was the appropriate place to hear the claims. This gave the go-ahead for the Manchester Employment Tribunal to have a preliminary hearing to establish whether a comparison between the two groups of workers could be made. It has decided that it can – both under the equal pay parts of the Equality Act and the (currently) directly enforceable European law that underpins it.

The Equality Act comparison test, that there were "common terms" in the two groups, was met, despite the different locations and the fact that terms varied according to where an employee worked. The claimants' terms were broadly similar to those of the depot employees – they were all hourly paid and there was a strong correlation between the structures of the respective staff handbooks. It didn’t matter that terms were negotiated in different ways for the two groups. There were differences in specific terms, but they were not so extensive as to undermine the validity of the broad comparison.

Some of the depot workers' terms did have specific geographical and historical origins; the Tribunal commented that these could potentially be relied on by the employer to establish the statutory "material factor" defence to the equal pay claim.

The Tribunal commented specifically on a "productivity and flexibility" term for the depot employees. Although clearly of importance to the employer, this didn’t amount to a significant difference between the two groups because, in the Tribunal's view, it was a statement of aspiration rather than a contractual obligation.

The Tribunal concluded that the European law test – that there is a "single source" for the difference in pay – was also satisfied. The employer's argument that the division of its corporate structure into retail and distribution meant that powers to set pay had been delegated to two separate bodies was rejected. The executive board had overall budgetary control and was therefore in a position to introduce pay equality.

This case is only in its very early stages and we will be following it closely as it progresses and other equal pay areas are considered.