man sitting on shopping cart

The Supreme Court in London recently held that Asda employees working in-store can, for the purposes of equal pay, use Asda employees working in depots as comparators.  

Background  

There is a threshold that requires a claimant to identify a valid comparator, namely a real person employed by the same, or essentially the same, employer. Where the proposed comparator is based at a different location, there is a statutory requirement to identify “common terms”.  

In this case, most of the claimants were female and working in retail. Their comparators were predominately male, working in distribution. This gave rise to a preliminary question as to whether there were common terms at the different locations. The Employment Tribunal, Employment Appeal Tribunal and Court of Appeal were satisfied that this was the case.  

Asda appealed to the UK Supreme Court.  

Judgment

The statute did not define “common terms”. It was for the courts, therefore, to interpret and give effect to the intention of Parliament. 

To do this, a broad comparison should be made considering whether the terms enjoyed by the distribution employees were substantially the same at the distribution depots and at claimants’ establishments. The Employment Tribunal was, therefore, wrong to undertake a detailed comparison on a line-by-line basis.  

That said, the UKSC agreed with the conclusion that the claimants were indeed employed on substantially the same terms as their comparators.  

Asda’s appeal was dismissed.

Comment

It must be remembered that this decision relates to the preliminary issue of identifying a comparator rather. The substance of the case shall be determined by the Employment Tribunal in due course.  

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By Paul Sullivan FRSA

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