For the purposes of equal pay legislation, can workers doing one job compare themselves with others performing an entirely different task when both are paid from a single source? In an important decision, the Employment Appeal Tribunal (EAT) has ruled that the answer to that question is ‘yes’ (Asda Stores Limited v Brierley and Others).

The case concerned about 7,000 Asda retail workers, nearly all of them women, who argued that they performed work of equal value to depot-based workers, most of them men, who worked for the same employer. The depot workers, who, unlike their retail colleagues, had the benefit of established union representation and collective bargaining agreements, were paid a higher salary. An Employment Tribunal (ET) found that the retail workers could compare themselves with the depot workers for the purposes of the former’s equal pay claims.

In rejecting Asda’s challenge to that ruling, the EAT found that the better view of the law was that Article 157 of the Treaty on the Functioning of the European Union conferred an unconditional right to equal pay both on those who carry out like work and on those who perform work of equal value. Although that issue was not entirely clear, the EAT found that it was clear enough and there was no need to refer the matter to the Court of Justice of the European Union for resolution.

The EAT also found that the fact that the retail and depot workers had their pay and conditions determined by a single source – the Executive Board was responsible for differences in pay and could, subject to the overarching control of Asda’s parent company Wal-Mart, have corrected any pay inequality – was sufficient to permit a comparison to be made. Asda’s argument that there must also be a single establishment, collective agreement or statutory framework was rejected. The better view of the law was that the comparison could be made using the established hypothetical test which enables comparisons to be made between workers who do not and never would work in the same location.

The EAT granted Asda permission to appeal to the Court of Appeal.

Says Damian McCarthy, “Whilst annual reporting on the difference in pay between male and female workers is mandatory for public sector employers and for private and voluntary sector employers with 250 or more employees, all employers who have not already done so are advised to carry out a gender pay audit in order to ensure that any unjustifiable inequalities between the pay of men and women are remedied so as to reduce the risk of equal pay claims in the future.”

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