Commonality of terms

When bringing equal value claims, women can compare themselves with men working for the same employer but at a “different establishment” if common terms apply. In Asda Stores Ltd v Brierley and ors, the Court of Appeal held that, as Asda applied common terms to retail workers and separate common terms to distribution workers, the women in retail could compare themselves with the men in distribution.  

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 even though they did not work in the same “establishments” as their comparators.

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”.

Tribunal and EAT decisions

Distinguishing the case of DEFRA v Robertson (in which two government departments were held to be separate employers), the tribunal 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”. Dismissing the appeal, the EAT held that where there is a “single source” of pay and conditions for each of the groups of  claimants and comparators, 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.

Decision of Court of Appeal

Agreeing with the decisions of the tribunal and the EAT, the Court of Appeal held, on the facts, that Asda applied common terms and conditions to both the retail workers and, although different from the retail terms, there were common terms for the distribution workers “wherever they worked”.

Although it was not necessary for the Court to go on and consider whether there was a “single source” under EU law, one judge held that the terms enjoyed by the women and their comparators did in fact have a single source in the sense that they were set by the same employer, which had the power to equalise them. It followed that it would be a breach of EU law if the women retail workers were not allowed to compare themselves with male depot workers.