Supreme court rules against Asda

This is the long awaited Supreme Court decision in Asda v Brierley and others [2021] UKSC 10, on appeal from [2019] EWCA Civ 44 which was handed down by The Supreme Court on 26 March 2021, having been heard in July 2020.

Briefly, thousands of retail workers brought a claim against Asda on the basis that they are paid less than other Asda staff working in distribution depots. As is common across the retail sector, the in-store retail workers are predominantly female and distribution workers are overwhelmingly male.

The initial claim in the Employment Tribunal in Manchester on 14 October 2016 was decided in favour of the Claimants (the retail staff) and this decision was upheld by Kerr J in the Employment Appeal Tribunal by a judgment handed down on 31 August 2017. Asda appealed against that decision and was heard in the Court of Appeal in October 2018, where the appeal was dismissed, with a further appeal brought to the Supreme Court. The Supreme Court also ruled against Asda.

The issue in question was still whether the claimants were entitled to compare themselves to the comparators at all, given that they work in separate establishments, under s 1(6) Equal Pay Act 1970 (“EPA 1970”) and s. 79 Equality Act 2010 (“EqA 2010”).

At this stage, all that has been determined is that the terms and conditions of employment applied to the distribution employees are able to be used as a valid comparison for the retail workers. It does not mean that the retail workers do have a valid claim for equal pay, just that it must now be considered, which is currently underway in the employment tribunal.

If these two roles are deemed to be equal, this could open the door to thousands of other claims - although a third stage may still apply in relation to factors other than gender which may still find that it is valid for the two roles to be paid unequally.

Posted on 1 April, 2021 by Ortolan

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