In Asda Stores Ltd v Brierley and ors, the Supreme Court has held that supermarket employees can compare themselves with employees at distribution depots for the purpose of equal pay claims under the Equal Pay Act 1970 (EqPA) and Equality Act 2010 (EqA).
The claimants in this case were predominantly female retail employees who brought equal pay claims, seeking to compare themselves to predominantly male employees working in the distribution depots of the employer.
The Employment Tribunal had to consider whether this was a legitimate comparison for the purposes of the EqPA and the EqA.
The issue worked its way through the court/tribunal system and Lady Arden of the the Supreme Court summarised existing case-law and gave guidance to tribunals on how they should approach the 'common terms requirement' for equal pay claims.
The statutory test
Lady Arden confirmed that if there are no employees of the comparator’s group at the claimants’ establishment and it is not clear on what terms they would have been employed there, the court or tribunal must apply what is known as the ‘North hypothetical’. This involves considering whether the comparators would have been employed on broadly similar terms to those they are currently on, had they been employed on the same site as the claimants’.
Lady Arden set out, in brief, that the fact-finding exercise in relation to the common terms requirement should not be a prolonged enquiry. A line-by-line comparison of different sets of terms and conditions is not required. The answer may more readily be found by inference from the relevant facts and circumstances than from opinions of individuals employed in the business.
The employment tribunal had found that the distribution employees would have been employed on substantially the same terms if they had been employed at the claimants’ site. Lady Arden confirmed that it did not have to be ‘feasible’ for the hypothetically relocated comparators to be able to carry out their role at the claimants’ establishment. In the absence of any misdirection of law on this matter, and in view of the considerable experience of employment tribunals, the Supreme Court held that the tribunal's findings on the North hypothetical should stand.
If you require any advice regarding the above article, please do not hesitate to contact the Employment Team on 020 8260 0440.
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