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The Supreme Court Dismisses ASDA’s Appeal

BY Kirstie Beattie
Employment Law & HR

In the highly anticipated case of Asda Stores Ltd v Brierley and others, the UK Supreme Court has now ruled that Asda store workers are entitled to compare themselves to distribution centre staff for equal pay purposes.


More than 35,000 Asda shop workers, the majority of whom are women, sought compensation on the basis that between 2008 and 2014 they received less pay than the predominantly male staff working in the chain’s distribution depots, by arguing they were a valid comparator under the Equality Act 2010 and Equal Pay Act 1970.


In January 2019, the Court of Appeal upheld the previous rulings of the Employment Tribunal in 2016 and Employment Appeal Tribunal in 2017 by concluding that shop workers were entitled to compare themselves to warehouse staff and could rely upon cross-establishment comparison, given the retail and distribution locations were separate from one another. Asda appealed to the Supreme Court on the basis that the roles were not comparable and therefore did not satisfy the requisite criteria for equal pay claims. This was the first case involving a cross-establishment comparison where both the shop workers and warehouse staff contractual terms were not fixed by collective bargaining agreements.


On 26 March 2021, in a unanimous judgment, the Supreme Court justices dismissed Asda’s appeal, by finding that Asda shop workers were permitted to use the same terms and conditions of employment enjoyed by the warehouse staff as a valid comparison. Although the shop workers and warehouse staff were based at separate establishments, the common terms enjoyed by either party were substantially the same at both premises, thus satisfying the qualifying conditions to bring a claim under equal pay.


Importantly however, the ruling does not mean that the shop workers are entitled to equal pay. They will still have to demonstrate that the different jobs are of equal value and subsequently, if there is a reason other than sex discrimination that means the roles should not be paid equally. Therefore, there is still a long road ahead.


Although perhaps unsurprising, the outcome of the case will have a significant impact on other similar group action claims being brought by shop floor staff at several major supermarkets, including Sainsbury’s, Morrisons, Tesco and the Co-op. Essentially it means that the claims can proceed as opposed to being rejected at this relatively early juncture. Any LAW clients impacted by this judgment are welcome to get in touch should they wish to discuss what it might mean for them.

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