Asda Stores Ltd v Brierley & Ors [2021] UKSC 10 (26 March 2021)
Citation:Asda Stores Ltd v Brierley & Ors [2021] UKSC 10 (26 March 2021)
Subjects invoked: 41. 'Employment'.38. 'Discrimination'.
Rule of thumb:Does equal pay for equal apply to different parts of a conglomerate's business? Yes, if people in different parts of a conglomerate's business are doing equal work they deserve equal pay ie someone working in the warehouse/wholesaling sector of the Asda business doing the same job as someone in the supermarket part deserves equal pay for equal work.
Background facts:
This was a case in the subjects of discrimination & employment law – it related to the principle of ‘valid comparator’ in discrimination law in the workplace. This case affirmed that employees in a conglomerate company’s different branches of their business, even in different sectors, are all considered employees of the same establishment. In this case an employee in the manufacturing/depot/ wholesaling part of Asda could be considered to be ‘valid comparator’ for an employee in the retail supermarket part of Asda – if these employees are doing equal work, despite being in different sectors of the economy, they should still be given equal pay.
The facts of this case were that Asda employees in the retail customer-facing part of Asda felt that they were being underpaid. These Asda retail employees looked at the nature of the work they were doing in the retail part of Asda, and compared it to the work other Asda employees in the depot part of Asda were doing (normally in industrial estates), and deemed that the work in the depot was of an extremely similar nature to theirs on the retail area, but, the employees in the retail part of Asda noted that they were being paid significantly less for doing this type of work. Depot Asda employees were part of a trade-union, which retail Asda employees were not, and deploy employees used this association to negotiate higher pay for themselves. These retail branch employees felt this raised a discrimination issue in the employment tribunal. Asda retail employees doing similar work to Asda depot employees demanded the same amount of pay as them, or at least a pay rise, from Asda directors/management. Asda refused and so the matter went to Court. This was a serious matter which affected around 35,000 Asda employees who could potentially be in a position to make a claim.
The Asda retail employees first and foremost argued that the ‘valid comparator’ principle applied to depot and retail employees – it was reasoned that any distinctions between departments, branches and areas within the Asda conglomerate were artificial. They argued that Asda was Asda, Asda employees were Asda employees, regardless of where they were in the Asda business, and the Asda business had to be taken as a whole. The Asda retail employees also explained the nature of the work which some of them did, and explained the nature of the work which Asda depot employees did, and explained how they were extremely similar. It was also shown how employees could move seamlessly between these 2 positions within Asda with next to no training required at all. Asda retail employees argued that this breached the discrimination law principle of ‘equal pay for equal work’. Asda sought a Judgement only on the ‘validly comparator principle’ – they argued that this principle did not apply, and sought this to be considered before the ‘equal pay for equal work’ matter was considered. Asda explained that the ‘valid comparator’ principle meant a real and literal person doing the exact same work, and this a hurdle had to be cleared before a claim progressed. Asda argued that ‘retail’ and ‘manufacturing’ were different sectors of the economy, and employees in one sector could not ‘validly compare’ themselves to employees in another sector altogether – Asda argued this was therefore automatically not a valid comparator.
Judgment:
The Court upheld the ‘valid comparator’ part of the argument of the Asda employees. The Court affirmed that employees could in different sectors could still in theory be doing ‘equal work’. Obviously, some jobs in each sector will be completely different, but some in each sector may very well be equal, particularly lower down the company. The Court affirmed that even a conglomerate business operating across different sectors of the economy still has to be taken as a whole. The Court explained that the way businesses structure their business into different compartments, geographical locations or departments etc was not relevant for the purposes of the law. In short, the Court stated that the employees in ‘retail’ comparing themselves to employees in ‘depot’ was potentially a ‘valid comparator’ for a discrimination claim – they were all broadly employees of Asda and all employees of Asda doing ‘equal work’ should be given ‘equal pay’. The Court accepted that the matter of ‘equal pay for equal work’ potentially applying to Asda depot and Asda retail employees should be considered in a separate trial. The UK Supreme Court referred this matter back to the High Court to consider in light of retail and depot employees being considered ‘valid comparators’. The UK Supreme Court referred the matter back to the High Court to consider if the 2 Asda positions being referred to in the claim were actually indeed doing ‘equal work’ to merit ‘equal pay’, or if under close scrutiny the work in the 2 positions could be clearly distinguished.
Ratio-decidendi:
’60. Common terms requirement: summary of the law 61. … test is whether there are common terms as between the comparators at their establishment and the comparators if they were working at the claimant’s establishment. 66. … There will be cases where it will be clear … that common terms apply because the comparators’ terms and conditions are the same or substantially similar irrespective of where they work… 68. … The employer will have ample opportunity to show that pay disparities are justified when the value of the claimants’ work is evaluated or if it raises a defence of genuine material factor under section 1(3) of the EPA 1970 or section 69 of the EA 2010’, Lady Arden ‘the test is whether there are common terms between the comparators at … the claimant’s establishment’, Lady Arden
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.