Single source

When bringing an equal value case, women can compare themselves with men working for the same employer but at a “different establishment” if common terms apply unless there is a “single source”. In Asda Stores Ltd v Brierley and ors, the Employment Appeal Tribunal (EAT) held that an employer can be a single source despite separate local collective bargaining at different establishments.

Basic facts

Over 7,000 mainly women claimants who work in Asda’s retail stores lodged tribunal claims for equal pay with comparators (overwhelmingly men) employed in the company’s distribution depots. The women argued that, as they were doing work of equal value to that of the men, they should receive equal pay.

Asda argued that the claimants could not rely on the depot workers as comparators for the purpose of an equal value claim for two reasons. Firstly the retail stores and distribution centres were in different locations; and secondly the two groups had different pay arrangements in that the women’s pay was imposed without negotiation whereas the men’s pay was collectively bargained through a recognised union.

Relevant law

Section 79(4) of the Equality Act states that a woman can claim equal pay with a man working for the same employer but at a different establishment where common terms and conditions apply, for example at another branch of a store. 

Article 157 of the Treaty on the Functioning of the European Union (TFEU) allows a woman to compare herself to a man who does not work for the same employer but where the difference in pay can be attributed to “a single source”. 

Section 1(6) of the Equal Pay Act 1970 stated that "men shall be treated as in the same employment with a woman if they are men employed by her employer or an associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions are observed either generally as for employees of the relevant classes". 

Tribunal decision

The issue for the tribunal to decide was firstly whether the women worked in a “different establishment” to the men with whom they wanted to compare themselves; and secondly whether their pay could be attributed to a “single source”.

Distinguishing the case of DEFRA v Robertson (in which two government departments were held to be separate employers), the judge found that both retail and distribution workers were accountable to a common employer – a subcommittee of the Asda executive board. In addition, he found that common terms and conditions of employment were observed at the stores for the retail staff and depots for the distribution staff.

Asda appealed on the basis that claimants and their comparators “work in different industries under different employment regimes”.

EAT decision

Dismissing the appeal, the EAT held that where there is a “single source” of pay and conditions for both claimant and comparator, it is irrelevant whether the unequal treatment is the result of collective agreements. Likewise it is irrelevant whether or not the employment is in the same establishment or service. 

If no comparator is actually employed at the establishment where the claimant works, the EAT held that they can still rely on a hypothetical employee even though the wording of section 79 of the Equality Act differed from the wording of section 1(6) of the Equal Pay Act which referred explicitly to “common terms and conditions … for employees of the relevant classes”. The retail staff could therefore go ahead and compare their roles with those of the depot workers.