In order to bring an equal pay claim, a claimant must identify a comparator of the opposite sex who is performing equal work. In Asda Stores Ltd v Brierley and others, the Court of Appeal has decided that a group of female retail employees could compare themselves with a group of predominantly male distribution depot employees.

The 7,000 female claimants in this case worked in a variety of roles in Asda stores, whereas their higher-paid male comparators worked in Asda’s distribution depots. Asda applied to have the claims struck out, arguing that the claimants could not properly compare themselves with the depot staff because the retail and distribution divisions were completely separate establishments, with their own negotiating and management processes and different terms of employment. However, both the Employment Tribunal and the Employment Appeal Tribunal (the EAT) agreed with the claimants that they could use the depot staff as comparators.

Asda’s appeal to the Court of Appeal has now also been dismissed. The Court of Appeal noted that there were strong similarities between the respective employment handbooks for retail and distribution staff, which applied across all sites. In addition, although the two functions were run separately, Asda’s Executive Board had ultimate control over both divisions, subject to overall governance by its parent company, Wal-Mart. This meant that the Executive Board was responsible for the differences in pay and had the power to equalise them.

The Court of Appeal’s judgment confirms that Asda’s retail staff can use depot staff as comparators in their claim even though they worked at separate establishments. This does not mean that they have established a right to equal pay. The equal pay legislation is notoriously complex, and there is still a long way to go in this case. Subject to any further appeal to the Supreme Court, the case will now proceed to decide whether the employees were engaged on work of equal value.