When pursuing equal pay claims, it is vital to avoid the proverbial fallacy of seeking to compare apples with pears. In a test case ruling, however, the Supreme Court found that thousands of female supermarket workers who claim to have been paid less than men doing equivalent jobs did not fall into that trap.
About 35,000 retail workers employed by Asda Stores Limited – the vast majority of whom were women – sought compensation on the basis that, over a six-year period, they were paid less than predominantly male employees engaged in the chain’s distribution depots.
Asda argued that the depot workers could not be viewed as valid comparators. The company submitted that the two sets of workers could not be said to serve under ‘common terms’, within the meaning of Section 79(4)(c) of the Equality Act 2010. Following preliminary hearings, however, that argument persuaded neither an Employment Tribunal (ET) nor the Court of Appeal.
Ruling on Asda’s challenge to that outcome, the Supreme Court noted that, in order to succeed in their claims, the retail workers had to compare themselves with real persons employed by the same or an associated employer. They were entitled to seek to compare themselves with the depot workers notwithstanding that they worked in a different part of the business and at different locations.
In order to establish that they and the depot workers were employed under common terms, the shop workers did not have to show that those terms were identical. What was required was a broad comparison to establish that the terms were substantially the same. That exercise did not require a line-by-line comparison of the specific terms and conditions of employment of the depot workers versus the retail workers.
The critical test was whether the depot workers would have continued to be engaged on substantially the same terms as they were if employed at the same locations as the retail workers. It did not matter whether such hypothetical relocations were feasible in practice. There was no error of law in the ET’s application of that test.
The Court emphasised that it was not, at this stage of the case, determining that the shop workers’ claims would succeed. They would still be required to show, amongst other things, that the value of the work they performed was equal to that of the depot workers. It also remained open for Asda to argue that any difference in pay was due to genuine, non-discriminatory factors.