Private sector equal pay claims: recent developments

Earlier this year we highlighted the trend in Equal Pay cases, which are moving away from the public sector and are now being brought in the private sector.

One of these claims was a group action brought against Asda Stores by over 9,500 Asda employees (Brierly and others v Asda Stores Ltd). The Claimants, predominantly female shop floor staff, argue that they are underpaid compared to their male counterparts working in the warehouses; the difference in pay being between £1 and £3 an hour.

The Manchester Employment Tribunal has recently considered the case at a preliminary hearing, and has confirmed that the mainly female shop staff can compare themselves to higher paid men who work in the warehouses.

At the preliminary hearing, Asda argued that the claims should be struck out because the Claimants could not compare themselves to their chosen comparators; arguing that the shops and the warehouses were in different locations and operated different pay arrangements, and were therefore not comparable. However, the Tribunal found that the employees’ terms and conditions were attributable to a single source, Asda’s Executive Board, and as such the Executive Board was responsible for the alleged pay inequality and had the power to restore equal treatment. It was therefore valid to compare shop employees with warehouse employees in the equal pay claims.

The next issue to be determined by the Tribunal will be whether or not the jobs are of equal value and whether any other material factors unrelated to gender (such as different market rates) explain the pay differential.

We will of course be monitoring this case and will report on its findings in due course. In the meantime, if you have any questions regarding this topic or any employment issue, please contact Linky Trott – Partner, or any member of the Edwin Coe Employment team.

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