About 30,000 retail employees at Asda, mostly women, have moved a step forwards in their equal pay claim against their employer.

The male colleagues work in Asda’s distribution depots, but claimants don’t work in the distribution depots; they work in Asda’s retail stores, so how can they compare their pay to that of colleagues who work in a different location?

Comparators and the statutory provisions

The Equal Pay Act 2010 requires that your more highly paid comparator colleague must either work:

  • in the same establishment as you; or
  • in a different establishment where ‘common terms’ apply, either generally or as between you and the comparator.

Given that they don’t satisfy the above, the Asda retail workers needed to rely on the second limb and show that ‘common terms’ applied at the establishments. If they did, then the claim can proceed to a full hearing. If they didn’t, the claim fails.

A preliminary hearing was held in 2016 to decide this question in relation to the Asda employees. It was decided in the claimants’ favour, but Asda appealed, lost again, and appealed again to the Court of Appeal. Judgment was handed down on 31 January 2019.

Case studies

The Court of Appeal started by reviewing the relevant case law.

  • In Leverton v Clwyd County Council (1989), where a female nursery nurse sought to compare her pay with that of male clerical workers who were also Council employees but who did not work in her school, the Court of Appeal rejected the idea that this question required a detailed comparison between the two sets of terms and conditions to identify how similar they were. Rather, it held that the question was essentially: are the terms and conditions applicable to the relevant jobs irrespective of the establishments at which the employees work?
  • In British Coal v Smith (1996), where female canteen workers and cleaners sought to compare their pay with that of male surface mineworkers, some of whom worked at different pits to the claimants, the House of Lords held that it is not necessary that all terms are common: ‘broad commonality is enough’.
  • In North v Dumfries and Galloway Council (2013), where female classroom assistants and nursery nurses at schools (on ‘Blue Book’ terms and conditions) sought to compare their pay with that of male manual workers at depots (on ‘Green Book’ terms and conditions), the Supreme Court said that the relevant hypothetical question (the ‘North hypothetical’) is: if the manual workers did their job at the schools, would they be employed on Blue Book terms or Green Book terms (i.e. do the particular terms apply wherever the employee is employed)? If so, common terms apply.

Application to Asda and decision

Applying this to the Asda case, the Court summarised the pertinent questions as follows:

  • if (however unfeasibly) retail workers were employed, in retail jobs, in depots, would they be on the same terms as retail workers employed at stores? and
  • if (however unfeasibly) distribution workers were employed, in distribution jobs, in stores, would they be on the same terms as distribution workers employed at depots?

On the facts of this case, it was held that the answer to both questions was yes. Hence there are ‘common terms’ and the claim can proceed.

Comment

The Asda retail employees issued their equal pay claim in 2014. It has taken over four years to get this far, and Asda may yet seek to appeal to the Supreme Court. Aside from this preliminary issue, the case has yet to move onto the principle issues of whether or not the retail employees’ work is of equal value to that of the distribution employees, and if it is, whether the difference in pay constitutes unlawful sex discrimination, or whether Asda has a non-discriminatory justification for the difference. If each issue is appealed to this extent, the end could be a very long way off indeed.

It is not surprising that this is a heavily contested battle: if successful, the claimants will be entitled to arrears going back many years, and the large supermarkets will face a very hefty bill. But that said, it is unsatisfactory that, on this preliminary issue at least, in relation to which we have clear Supreme Court authority and the three courts have all now reached the same conclusion, there should have been this degree of debate, delay and expense, and one wonders whether perhaps this might have been avoided had the troublesome statutory provision been more clearly drafted in the first place.