Question: When it comes to claims regarding equal pay, can women working in a supermarket compare themselves with men working in warehouses and distribution centres?
The Court of Appeal said yes, they can, when it upheld an appeal in the case of Asda Stores Ltd vs Brierley. The crux of the matter was whether or not the women and the men were employed under “common terms”.
The Court held that the claimants (women working at Asda supermarkets) would be entitled to draw the comparison under European law because there was a “single source” for their and their comparators’ (men working in warehouses) terms.
The implications for all employers are that the Court of Appeal explains that the test for “common terms” is purely hypothetical and considers it unnecessary for claimants to present evidence about the actual terms on which they are their comparators are employed. This means that employers will find it very difficult to not pay workers equally even when working on different sites under different employment regimes.
The question employers will now need to answer is not how different the terms are at different sites, but how different would the terms be, if workers from one site were transplanted to do their own jobs at another site?
We cannot stress enough how this ruling could affect employers, especially large employers. We provide our services to a very wide range of employers from micro employers to large public sector bodies. For help and advice on any matter related to employment and outsourced payroll services talk to our Birmingham based team.