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Posted on: Jul 23,2019


Brierley and Ors v Asda Stores Ltd [2019] EWCA CIV 44

Over 7,000 predominantly female retail employees brought equal pay claims against ASDA in the Employment Tribunal.

The first hurdle to overcome in an equal pay claim is establishing an appropriate comparator. The female employees in this case relied upon male employees in the distribution line. The female employees argued that the work carried out by men in the distribution operation is of equal value to the work that they carry out, but the male employees receive superior terms and conditions.

However, Asda argued that its distribution and retail sectors are fundamentally different, because they:

  • Operate in different industries;
  • Have different objectives;
  • Require employees with different skill sets;
  • Have vastly different physical environments; and
  • Have distinctly different functions.
  • Therefore, the female employees were not entitled to compare themselves to male employees in a different sector.
  • The Employment Tribunal found in favour of the female employees and held that they could compare themselves to male employees in distribution. This was upheld by the Employment Appeal Tribunal and Court of Appeal.

Although the female employees cleared this hurdle, they still have a long race to go. The Tribunal will have to now determine whether the work of the female employees is actually of equal value to that of their male comparators. Nevertheless, employers in the retail sector could see an increase in equal pay claims being brought after this decision, as it highlights to employees that an appropriate comparator can be someone in an entirely different role and/or area of the business.

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