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Supreme Court: Asda shop floor staff can be compared to warehouse workers

Apr 15, 2021

Author: Jamie Webster

The Supreme Court recently held that supermarket-based employees of ASDA can compare themselves with employees at ASDA’s distribution depots for the purposes of equal pay claims within the Equality Act 2010 and Equal Pay Act 1970, unanimously upholding the judgment of both the first instance and appeals tribunals.

In Asda Stores Ltd v Brierley and others the Court considered how a tribunal should approach the statutory requirement that a claimant in a claim of this kind should be able to demonstrate that common terms exist as between the Claimants and their comparators. In this case, the distribution drivers were employed on different terms and at a different location to the Claimants.

Delivering the sole judgment, Lady Arden confirmed that where a claimant is carrying out a “cross-establishment comparison” and there are no employees of the comparator’s group at the claimant’s establishment, and it is unclear on what terms they would have been employed at the other establishment, the court or tribunal must apply the “North Hypothetical” from Dumfries and Galloway Council v North, considering whether the comparators would have been employed on broadly similar terms to those on which they are currently employed. The “common terms” requirement is a threshold test, and meeting it should not involve a prolonged enquiry but may be achieved by reference to inference from the relevant facts and circumstances.

The Claimants in Brierly will still have to demonstrate that they carried out work of equal value to the distribution depot employees, but this decision is a blow to the Respondent’s efforts to defend the underlying claim.