The EAT has dismissed an appeal by Asda in its on-going equal pay case involving a claim brought by over 7,000 current and former employees (the majority of which are women). The EAT upheld the previous Tribunal ruling that female employees who work in Asda’s retail stores are entitled to compare their work to that of the higher paid male employees that work in its distribution centres. The EAT agreed that the value of work between these two groups of staff is of equal value and, therefore, that their pay should be comparable. In particular, when commenting on the issue of comparability, the EAT held:

  1. where there is a “single source” of pay and conditions for both the claimant and comparator, a direct comparison is permitted;
  2. the Tribunal is allowed to analyse the similarity between the claimant’s and comparator’s terms, in addition to considering whether those are “common terms” for the purpose of applying the Equal Pay Act 1970 and the Equality Act 2010; and
  3. where there is no direct comparator employed at the claimant’s establishment, a comparison against a hypothetical employee at the claimant’s establishment is allowed, if that hypothetical employee would have been employed on largely similar terms to the actual comparator.

Justice Kerr concluded that the Tribunal had been correct in its initial ruling in October last year and strongly encouraged Asda to solve its extensive equal pay issues between these two groups of staff. Saying that, the EAT has given Asda permission to appeal to the Court of Appeal and Asda’s legal team has indicated that it intends to do so. We await any further developments with interest.

You can find the full judgment here: Asda Stores Ltd v. Mrs S Brierley and others