How should a tribunal approach the 'common terms requirement', where Claimants in an equal pay claim seek to compare themselves to employees at a different establishment employed on different terms?
As a threshold test, with a limited function, held the Supreme Court in Asda Stores Ltd v Brierley.
The Claimants (35,000 of them) worked in retail and sought to compare themselves to employees at distribution depots. This issue was determined as a preliminary issue. Asda appealed to the Supreme Court, having lost at each stage below. Rejecting the appeal, Lady Arden summarised existing caselaw and gave guidance to tribunals.
The statutory test is whether there are common terms as between comparators at their establishment, and the comparators if they were working in an appropriate part of the Claimants' establishment. The requirement is a threshold test. Cases where it cannot be met are likely to be exceptional. The 'weeding out' can be achieved by asking whether the comparators would be employed on the same or substantially the same terms if they were employed at the Claimants' establishment. Where no comparator works at the Claimants' establishment, and common terms do not apply, it may be necessary to apply the 'North hypothetical'.
There should not be a prolonged factual enquiry. A line-by-line comparison is not required. Inference from relevant facts may be more important than opinions of individuals employed in the business.
Thanks to Charles Murray of Queen Square Chambers and Magdalen Chambers for preparing this case summary.
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