Equal Pay And The Recent Asda Stores Ltd v Brierley Case

The experienced solicitors at Chattertons always take a very keen interest in current legal cases. This is especially true when they have the potential to set a significant precedent for future proceedings. A recent case between Asda Stores Ltd and Brierley had the potential to do exactly that because legal action was taken to try and establish that male members of staff in the supermarket's retail and distribution centres were undertaking a comparable role to female staff working within the supermarkets themselves. The former were allegedly receiving a higher rate of pay than the latter, resulting in staff on the shop floor feeling 'undervalued.'

The proceedings went to the Court of Appeal, and many were surprised when the case was upheld, stating that the two environments were indeed comparable. However, as we will explain below, the outcome was in line with existing legal guidelines in this often complex area of employment law.

Can 'common terms' be established?

Under existing legislation that applies to equal pay cases of this nature, a claim is far more likely to be successful when 'common terms are observed' between the two existing working environments. In this case, it was established at a very early stage that staff at the two sites were working under entirely different management structures, and so for the outcome to be in the claimant’s' favour, a sufficient number of similar conditions needed to be identified. The main argument for this was that 'ASDA the supermarket' was effectively the same employer as 'ASDA the distribution centre', although the employees involved were working across different sites. After deliberation, it was made clear that there were in fact 'common terms' that could be identified.

Were the differences between 'day to day' employee operations important?

The Court of Appeal also needed to consider the fact that the two working environments were markedly different in terms of their operating structure. For example, a checkout operator may spend the majority of their day sitting down while handling single items, while a distribution centre staff member may be handling heavier containers and operating complex machinery to transport it all around. Because of the legal factors explained above, these differences were disregarded entirely.

Did European law have a role to play in the decision?

Although the ruling from The Court of Appeal didn't go into specific details about whether or not European law had a direct impact on specific 'equal value' claims, they did concede that European law would allow the same comparison to be made between the working environments. This is because employees across both sites had a 'single source' of employment terms. With all of this in place, the ruling specified that individual equal pay claims would now be able to proceed with this case being used as a foundation.

Do you need legal advice about any employment-related issues?

If you need legal advice about equal pay or any other employment-related issues, as either an employer or an employee, then please do not hesitate to get in touch with me at kayleigh.howarth@chattertons.com or 01522 541 181.