An employment tribunal has confirmed that female store workers can use male distribution depot workers as comparators in their equal pay claims.

This landmark ruling in the UK's largest private sector equal pay claim has cleared the way for over 7,000 claims to proceed, the total value of which has been estimated at over £100 million.

The facts

A group of primarily female employees working in ASDA's supermarkets have sought to bring equal pay claims, arguing that their work is of equal value to the work carried out by their male colleagues in the store's distribution warehouses. They argued that their work has historically been seen as 'women's work' and is thought to be worth less than the work done by the men in the depots.

Under the Equality Act 2010, an equal pay comparison is only valid if:

  • the claimant and comparator are employed by the same employer working at the same establishment; or
  • employed by the same employer working at different establishments but employed on common terms.

At the recent preliminary hearing the employment tribunal considered whether the depot workers were a suitable comparator to the store workers.

The decision

The tribunal concluded that it is not enough for a claimant to simply be employed by the same employer as the comparator, but that there must also be a single body responsible for the inequality which could restore equal treatment amongst employees. In this case, the employer of the store and depot employees, AS Ltd, had allocated responsibility for setting pay and conditions for the store and depot employees to different internal structures. ASDA argued therefore that there was not a single body responsible for any differences in pay. However the tribunal found that the Executive Board of AS Ltd was ultimately responsible for the differences in pay and could introduce equality of pay if it wants to.

The tribunal also ruled that the claimants had satisfied the comparator test as the retail store and depot workers' terms of employment were broadly similar, they were all paid an hourly rate and had a similar staff handbook. The differences in specific terms that existed between the two groups were deemed insufficient to result in the failure of the comparator test.

Whilst this judgment is obviously good news for the claimants, it does not determine the eventual outcome of the case. The focus of the litigation will now turn to the issue of whether or not the claimants' store work is of equal value to the work done by the depot distribution workers.

The situation that ASDA finds itself in could be considered a test case for the wider retail sector, where differences in pay and the gender balance of workforces in stores and distribution warehouses are largely similar.

After many years in which the public sector was the focus of significant equal pay claims, it appears that the private sector must now brace itself for similar, large scale litigation. Employers across all sectors need to consider whether they may have equal pay issues and take steps to remedy these.