Gender pay continues to be a key issue this year. As we wait for the publication of the final Gender Pay Gap Information Regulations, the high profile ASDA equal pay claims continue.

In Brierley & Others v ASDA Stores Limited, the employment tribunal has now decided that the store workers can use the distribution depot workers as comparators in their equal pay claims because they are employed on common terms. As the case involves over 7,000 claims from mainly female workers in hourly-paid jobs in its retail stores, this decision has major ramifications and ASDA is expected to appeal.

ASDA argued that a comparison between store workers and distribution depot workers was not possible because the division of ASDA's corporate structure into retail and distribution operations meant that pay setting powers had been delegated to separate bodies. This was rejected by the employment tribunal because ASDA's ultimate executive board exercised budgetary control and oversight over both the retail and distribution operations and so had the power to introduce pay equality.

The employment tribunal also held that the store workers' terms were broadly similar to those of the depot workers in that they were all hourly-paid and the structure of terms in the respective handbooks was broadly the same. Although there were some specific differences in the contractual terms, the employment tribunal held that the common terms were broadly similar and this was sufficient for the broad comparison required by The Equality Act.

The case will now continue onto the more substantive issue as to whether the work done by the workers employed in the retail stores is of equal value to the workers in the distribution depot (subject to ASDA's likely appeal).

In the meantime, The Equality Act 2010 (Gender Pay Gap Information) Regulations 2016 are expected to come into force in April 2017 and employers are advised to review pay practices to identify any potential areas of concern and, if possible, to address them in advance of April 2017. The publication of the regulations has been delayed but the government consultation on gender pay reporting requirements in the public sector indicates that the reporting regime in the public and private sector will mirror each other. In particular, it is expected that employers will be required to publish data on their mean and median gender pay gap, mean and median bonus pay gap and information on the proportions of male and female employees in each salary quartile. For more information, please see our briefing.