different pay structures

Welcome back to your weekly case law update. Those of you who missed it can still read last month’s newsletter, it was a bumper edition with features on the England Women’s Team, the Google memo, tribunal fees and pay reporting.

This week, we have two cases for you. One will be looking at a long-standing equal pay case and the second is a European Court of Human Rights case concerning email monitoring.

Asda Stores Ltd v Brierley & Ors

The question for our first case is:

Can jobs with different pay structures in a business be compared for equal pay claims?

Asda Stores Ltd v Brierley & Ors

Many of you will have heard about this case concerning 7,000, predominantly female, Claimants. They were store workers who complained they were being unfairly paid less than the predominantly male staff at distribution warehouses of Asda, the Respondent. The Claimants argued that store work was viewed as women’s work whereas the warehouse role was considered men’s work.

This primarily concerned whether the store workers could compare themselves to the warehouse workers. The Claimants believed they could under the ‘equal pay for work of equal value’ rule as both store and warehouse worker roles primarily involved managing and moving stock.

However, the Respondent argued that because these workers were based in different sites and had a different pay structure, there could be no comparison between the two and thus the claim should not be allowed to proceed to a full hearing.

Prior to this the Respondent had unsuccessfully tried to prevent the claim by arguing the ET didn’t have jurisdiction and it was a High Court matter – most likely to deter the Claimants as there are higher fees and greater cost risks.

The ET found that the roles could be compared and the claim could proceed. The Respondent appealed and the EAT rejected the appeal, it upheld the ET’s original decision meaning the claim should proceed to a full equal pay hearing.

The takeaway point:

Yes, the ET and EAT agree that roles that are work of equal value can be compared despite different locations and pay structures. However, the Respondent in this case has reportedly appealed to the Court of Appeal meaning it could be a while before the case finally proceeds and is concluded.