Tue 26 Sep 2017

EAT rules that female staff can compare themselves to males working in different establishments

Equal pay claims are often complex and lengthy but a recent EAT judgement may have made it a little easier for suitable comparators to be found.

Asda Stores Ltd v Mrs S Brierley and others is part of a long running equal pay claim - the first claims having been lodged in 2008 - brought by over 7,000 retail staff.  The retail staff, who are predominantly female, are attempting to compare themselves to predominantly male staff employed in distribution depots. 

To make a successful equal pay claim the claimants need to identify a real comparator - in other words they need to be able to point their finger at someone of the opposite sex who earns more than they do for doing equal work.  The Equality Act 2010 replaced the Equal Pay Act 1970 and states that a comparator must either work at the same establishment as those making the equal pay claim, or if they do not work at the same establishment then they must still be covered by common terms.  In addition, in some cases claimants may be able to rely directly on European law - in this case Article 157 of the Treaty on the Functioning of the European Union ("TFEU") - which allows for the claimants to demonstrate that pay inequality with a comparator is attributable to a "single source".

In the case of the claims brought by the Asda employees, the employment terms in retail and distribution are set by reference to different procedures but both are implemented and operated by Asda's Executive Board.  None of the retail stores are located on the same site as the distribution centres.

Asda had argued before an employment tribunal that the retail staff could not compare themselves to the distribution staff.  Its arguments were, in broad terms, that Article 157 of TFEU was not directly effective in equal pay claims founded on work of equal value and the claimants could not rely upon it; there was not a single source of pay and conditions for the claimants and their comparators; and that even if there was a single source in this case, the claimants and their comparators also needed to be at a single establishment, or be covered by a collective agreement or statutory framework for the terms.  However, the tribunal disagreed finding that the claimants could found their equal value claims on Article 157, that there was a single source of pay and conditions in this case, and that nothing else (establishment, collective agreement or statutory framework) was required. 

It is believed that the potential value of this claim is in the region of £100 million.  Not surprisingly, Asda appealed the tribunal decision.  The EAT dismissed the appeal, upholding the tribunal judgement in full.  However, while finding that Article 157 does have direct effect, the EAT did say that the point was not clear enough.  The EAT Judge was of the view that the Court of Appeal would be better able to consider whether a reference to the European Court of Justice (ECJ) on this point should be made.  It  is understood that Asda have already applied for permission to appeal the EAT decision to the Court of Appeal. 

So there is the possibility of not only an appeal to the Court of Appeal, but also a reference to the ECJ.  That could take another couple of years to resolve so the Asda employees will have to wait for sometime to find out if their claims are successful.  However, in the meantime the EAT's judgement does make it easier for female staff to compare themselves to men carrying out different work in a different location. 

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