A preliminary Employment Tribunal hearing has held that Asda store workers can use the higher paid Asda depot workers as ‘comparators’ in an important equal pay claim.
This case is an important one as it acts to remind employers that equal pay legislation is not as black and white as simply ensuring employees doing exactly the same role are paid the same. The critical factor in this and other similar equal pay cases is not that the role is the same, but that the work being undertaken is of ‘equal value’ to the employer. This term clearly provides for a level of subjective assessment and therefore legal argument.
Approximately 7,000 (predominately female) Asda store workers are involved in the case of Brierley and others V Asda Stores Ltd and should it ultimately be decided in favour of the claimants, commentators estimate it could cost Asda over £100m. The argument being made by claimants is that the Depot workers (who are predominately male) undertake work of equal value to them (the store workers), but are paid a materially higher amount.
Under the Equality Act 2010 employers must provide men and women with the same contractual terms (including those covering pay) where they are doing work of equal value, unless a deviation from this can be legally defended. Defences of unequal pay will not be dealt with in this brief article. In order to bring a claim under equal pay legislation, an employee must identify another actual employee of the opposite sex who is undertaking work of equal value to the employer but who is provided with advantageous contractual terms of employment.
In the preliminary hearing of the Employment Tribunal in the case in question, the Tribunal had to consider whether the store workers could use the role of the depot worker as a ‘comparator’, i.e. is it a role whereby the terms of employment are similar enough so as to provide for comparison.
The Tribunal considered the relevant tests for determining whether another employee can be used as a comparator, including both of the below:
Single source – that a single body determines the pay of both workers and is in a position to rectify any inequality in pay.
Common terms – the terms of employment were similar, in this case referencing both roles were paid on an hourly basis and that the terms of the employee handbooks (covering policies and procedures) were broadly the same.
It was held by the Tribunal that the depot workers did pass the tests of a comparator, therefore paving the way for the claimants to proceed with their equal pay claim under the Equality Act 2010.
Whilst the case is yet to be ultimately decided and the decision as to whether the roles of store worker and depot worker deliver equal value to the employer has not yet been made, the case is a useful reminder to employers. Like much Employment Law, there are clear grey areas which, if employers are not aware of, may lead to them finding themselves on the receiving end of an Employment Tribunal Claim.
In respect of the issue dealt with by this case in particular, employers would be wise to review their pay structure and whether there are positions which are paid differently, but which might be argued to be delivering equal value, which are broadly similar in their terms of employment as set out in an employee handbook, but not in their contractual terms on points such as holiday entitlement, sick pay, general pay and bonuses. If there is any doubt as to whether workers in different roles may have grounds for a claim, call Holmes & Hills Solicitors' Employment Law specialist, David Dixey, on 01376 320456 who is experienced in providing Employment Law advice to employers.
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