The EAT has ruled in Asda Stores Ltd v Mrs S Bierley and others that claimants who work in Asda’s retail stores can compare themselves with higher paid men who work in distribution centres. Mr Justice Kerr decided that:
- Article 157 of the Treaty on the Functioning of the European Union is directly effective in a claim founded on equal pay for work of equal value.
- Where there is a “single source” of pay and conditions for both claimant and comparator, a comparison is permitted. Single source is a freestanding gateway to comparability and not an additional hurdle to be overcome in all cases.
- A Tribunal is entitled to take into account the similarity between the claimant’s terms (other than the ones that are the subject of the claim) and those of the comparator as well as the genesis of those terms in deciding whether or not they are “common terms” for the purposes of both the Equal Pay Act 1970 and the Equality Act 2010.
- Where no comparator works at the claimant’s establishment, comparison is permitted if a hypothetical employee at the claimant’s establishment would have been employed on broadly similar terms to the actual comparator (referred to as the “North hypothetical” test). The North hypothetical is still available under the 2010 Act, notwithstanding that the wording in the 1970 Act was not replicated in the 2010 Act.
The EAT has given Asda permission to appeal to the Court of Appeal.
Thanks to Paul Livingston for preparing this case summary.