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Could equal pay claims by female supermarket staff be 'based on the same set of facts’ where different claimants did different jobs and relied on different comparators?

No, held the Court of Appeal in Brierley v Asda Stores Limited.

The Asda equal pay claims (and a similar claim against Sainsbury’s, heard together on appeal with Asda) are brought by thousands of Claimants doing a variety of jobs. Their common complaint is that their supermarket employers systematically overvalue male-dominated warehouse jobs compared to female-dominated retail jobs. Under r9 of the Employmemt Tribunal Procedure Rules, two or more claimants may present their claims on the same form if they are "based on the same set of facts".

The tribunal had ruled that these claims weren’t similar enough to fall within r9, but refused to strike out the claims, instead waiving the breach of r9. That meant that the existing claims could proceed, but further claims would have to be presented singly or in much smaller batches. At the time, that made a big difference to the fees payable; by the time the Supreme Court had ruled in the Unison case that the fees regime was unlawful, it was less significant.

On appeal, Asda argued the existing claims should have been struck out, because the batching was a ploy to evade the fees that were properly payable. The Claimants argued they hadn’t been in breach of r9 in the first place.

The Court of Appeal agreed with the tribunal.

Thanks to Alexandra Sidossis, pupil barrister at Outer Temple Chambers, for preparing this case summary.