We reported in October 2016 on the employment tribunal decision in the case of Brierley and others v Asda Stores Ltd. The employment tribunal determined at a preliminary hearing that a group of mainly female workers in Asda stores can be compared with a group of mainly male workers in Asda distribution depots for the purposes of the female staff's equal pay claims.

The EAT has now upheld the employment tribunal's decision on the grounds that the executive board of Asda Stores Ltd exercised control over both retail and distribution divisions of the company.

The EAT confirmed that differences in the way pay is set and the way in which the terms and conditions of different workers originated are not relevant to the equal pay rules. It confirmed that comparability between two groups of workers is possible where there is one body which is a single source of pay and conditions for both groups and where that body could be responsible for the inequality and act to restore equal treatment.

The EAT agreed with the tribunal that the depot workers could be comparators for the retail workers. To qualify as a comparator under the Equality Act, the workers must work for the same (or an associated) employer and either work at the same establishment or under common terms. The EAT ruled in this case that the depot workers are employed by the same employer under sufficiently similar terms to the retail workers to qualify as comparators.

It has been reported that the value of the claims in this case (which number over 7000) could exceed 100 million. This is already a very long running case and is unlikely to be finally resolved in the near future. Asda has applied for permission to appeal to the Court of Appeal and it is possible that this case will go to the Supreme Court and that questions will be referred to the ECJ.