Chester 01244 405555

Grosvenor Court
Foregate Street Chester
Cheshire CH1 1HG
DX: 19990 Chester

Shrewsbury 01743 443 043

Lakeside House
Oxon Business Park
Shrewsbury SY3 5HJ
DX: 148563 Shrewsbury 14

Manchester 0844 800 8346

Pall Mall Court
61-67 King Street
Manchester M2 4PD

Send us a message
Our Offices

Asda and Employees’ Claims for Equal Pay

9th December, 2016

Asda’s Employees Entitled to Compare Themselves with Distribution Depot Employees

Under the Equality Act 2010 (EqA) men and women should receive equal pay for equal work.

The EqA’s predecessor, the Equal Pay Act 1970, section 1(6) provided that, “Men shall be treated as in the same employment with a woman if they are men employed by her employer…. at the same establishment….and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes”. Therefore, a woman needs to be in the same employment as her comparator.

Section 79 of the EqA sets out the permissible comparators. At section 79(4) this includes:

  • B is employed by A’s employer or an associate of A’s employer;
  • B works at an establishment other than the one at which A works; and
  • Common terms apply at the establishments (either generally or as between A and B).

In addition, Article 157 of the Treaty of the Functioning of the European Union (TFEU) allows comparisons to be made between employees in the same establishment or service as another employee. The key question is whether the employees’ terms and conditions are attributable to a single source?

This legislation has been considered in the recent case of Brierley and others v Asda Stores Ltd ET/2406372/2008.

As you know, Asda’s main business is in retail. It is a wholly owned subsidiary of Wal-Mart. It employs 133,000 employees on retail terms. It also has its own distribution operation and employs 11,600 employees on distribution terms. None of the distribution centres are located on the same site as the retail stores. The employment terms in retail and distribution are set by reference to different processes; the processes are implemented and operated by the Executive Board which is subject to governance by Wal-Mart.

The tribunal had to consider whether a group of female, retail employees could compare themselves to a group of male distribution depot employees for the purpose of an equal pay claim.

The Employment Judge held that the employees were entitled to do so. It was held that Article 157 of TFEU was directly effective in these circumstances and that the employees’ terms and conditions were attributable to a single source. The Executive Board of Asda exercised control over distribution and retail. It was also responsible for the differences in pay.

In addition, it was held that there were common terms generally between the claimant employees and their comparators. This included that the terms were set within the same employer which was reflected in strong similarities in their handbooks. The tribunal accepted that there were some differences in terms but held that these differences were not sufficient as to undermine the broad comparison. The judge also rejected Asda’s contention that the change in wording between the Equal Pay Act 1970 and the EqA has effected a change in the law.

It has been reported that the sums in issue could exceed £100m and Asda is now considering its options for appealing this preliminary point.

If you are bringing or need to defend a claim for equal pay or if you are unsure as to whether groups of employees are entitled to equal pay, contact our Employment Department for specialist legal advice.

Ben Mason


Employment Law
Email: [email protected]
Tel: 01743 294129

You might also be interested in...

Solicitors’ Professional Indemnity Insurance: Run-off and alternative regulators

18th July, 2018

Special Focus: Solicitors’ Professional Indemnity Insurance Run-off – it dominates the thoughts of sole practitioners and partners in smaller law firms in my experience and restricts the ambitions of firms. The SRA could help law firms by relaxing their rules on run-off cover on their Solicitors’ Professional Indemnity Insurance to help firms merge or close more easily. This would protect... Read More »

Senior employment lawyer joins Theatr Clwyd board

17th July, 2018

Helen Watson, Head of Employment Law at Aaron & Partners LLP, has taken up an invitation to become a Trustee of both the Trust Board and the Main Board Theatr Clwyd has bolstered its senior leadership team with the appointment of an experienced employment law solicitor to support its vision of being at the forefront of theatre making... Read More »

Why there is more to CSR than just boosting a company’s ego

6th July, 2018

When a business invests in its community it deserves praise – but it must go beyond that, writes Helen Watson, a trustee at Claire House and partner at Aaron and Partners Solicitors. Corporate social responsibility (CSR) is the link between a company and the community in which it operates. As a trustee on charity boards including Claire House... Read More »

Contact Us