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Shop assistants win right to comparison with warehousemen

The conclusion of the Court of Appeal in Asda Stores Ltd v Brierley [2019] EWCA Civ 44 handed down this morning. Thousands of Asda’s mainly female retail staff are entitled to compare themselves for equal pay purposes with workers in Asda’s network of warehouses and distribution centres.

More than 27,000 claims have been presented by Leigh Day & Co, with hundreds of new claims added every month. The shop workers say their customer-facing roles are undervalued compared to warehouse work. Each of them is claiming up to six years’ arrears of pay.

This appeal was Asda’s latest unsuccessful attempt to stop the mass claims in their tracks. The Court refused Asda’s application for permission to appeal to the Supreme Court, so unless Asda can persuade the Supreme Court to hear a further appeal, the claims will finally be heard on their merits.

The Court of Appeal decided that common terms were observed between the warehouses and supermarkets, so the claims could proceed. The Court also held that the claimants would be entitled to draw the comparison under European law because there was a “single source” for their and their comparators’ terms, but declined to decide whether European law had direct effect in relation to equal value claims.

If Asda’s argument had succeeded, it would have made it easier for employers to limit the reach of equal pay law by dividing their businesses into segments with separate management structures.

The Court of Appeal explains the test for “common terms” on a purely hypothetical basis, considering it unnecessary for claimants to present evidence about the actual terms on which they and their comparators are employed. Employers will have a tough time arguing that they don’t need to ensure pay equality between workers at different sites operating different employment regimes: the question won’t be how different are the terms at the two sites – but how different would the terms be, if workers from one site were transplanted to do their own jobs (however unlikely that is in practice) at the other site.

Andrew Short QC, Naomi Cunningham and Keira Gore appeared for the claimants, instructed by Leigh Day & Co.

News 31 Jan, 2019

Authors

Andrew Short QC

Call: 1990 Silk: 2010

Naomi Cunningham

Call: 1994

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