Skip to main content
CLOSE

Charities

Close

Corporate and Commercial

Close

Employment and Immigration

Close

Fraud and Investigations

Close

Individuals

Close

Litigation

Close

Planning, Infrastructure and Regeneration

Close

Public Law

Close

Real Estate

Close

Restructuring and Insolvency

Close

Energy

Close

Entrepreneurs

Close

Private Wealth

Close

Real Estate

Close

Tech and Innovation

Close

Transport and Infrastructure

Close
Home / News and Insights / Blogs / Employment Law / 162: Court of Appeal rules on comparators in supermarket equal pay case

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.

Related Articles

Our Offices

London
One Bartholomew Close
London
EC1A 7BL

Cambridge
50/60 Station Road
Cambridge
CB1 2JH

Reading
The Anchorage, 34 Bridge Street
Reading RG1 2LU

Southampton
4 Grosvenor Square
Southampton SO15 2BE

 

Reading
The Anchorage, 34 Bridge Street
Reading RG1 2LU

Southampton
4 Grosvenor Square
Southampton SO15 2BE

  • Lexcel
  • CYBER ESSENTIALS PLUS

© BDB Pitmans 2024. One Bartholomew Close, London EC1A 7BL - T +44 (0)345 222 9222

Our Services

Charities chevron
Corporate and Commercial chevron
Employment and Immigration chevron
Fraud and Investigations chevron
Individuals chevron
Litigation chevron
Planning, Infrastructure and Regeneration chevron
Public Law chevron
Real Estate chevron
Restructuring and Insolvency chevron

Sectors and Groups

Private Wealth chevron
Real Estate chevron
Transport and Infrastructure chevron