29th March, 2021
‘Common Terms’ Threshold Met for Equal Pay Claims Against Asda
Asda Stores Ltd (Appellant) v Brierley and others (Respondents)  UKSC
On 26 March 2021, the Supreme Court judges unanimously upheld the Court of Appeal’s decision in favour of the 35,000 predominantly female retail employees, confirming that their claims against supermarket giant, Asda, meet the threshold for the ‘common terms’ test, which must be met if the Claimant(s) is/are based at a different establishment to the comparator before an equal pay claim can proceed to be heard in the Employment Tribunal.
The successful ‘common terms’ test, set out in section 79(4)(c) of the Equality Act 2010, in this case essentially establishes that the retail workers would be on substantially similar terms if they were hypothetically doing the same job but based out of the distribution workers’ site, and vice-versa.
This decision at this stage does not mean that the Claimants’ claims for equal pay succeed, so watch this space for the Tribunal ruling which will determine whether the Claimants received less pay than a valid comparator for the same work in the six-year period prior to commencing proceedings in 2014.
Other supermarkets and comparable businesses could see similar claims being brought against them on the back of this ruling.
If you or your business require guidance on supporting the needs of employees with disabilities, or any other employment matter, please contact Tori Shepherd, who would be happy to assist.
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