Equal Pay – retail worker comparator confirmed

Following a hearing in October 2018 the Court of Appeal has upheld an Employment Tribunal decision that predominately female supermarket retail workers working for Asda Stores Ltd (the claimants) are able to compare their roles to those of predominately male distribution workers within the same company but operating under a different management structure (the comparators). This means that around 30,000 claimants may now bring their claim for equal pay by virtue of the Equality Act 2010 (and the Equal Pay Act 1970 where employment commenced prior to 2010).

In their original claim, the claimants sought to argue that the distribution worker comparators were doing work of equal value but under superior terms and conditions. The distribution workers had the benefit of union intervention on their terms and conditions agreed via collective bargaining.

At the Employment Tribunal the claimant’s successfully argued that “common terms of employment” were applied between the supermarkets and warehouses. The Court of Appeal agreed and made it clear that the “common terms” test must apply between the two establishments when considering the class of worker and not between the individual claimant and comparator. The test is whether the terms of each class of worker would be the same regardless of which establishment the workers were employed. The test succeeds where the terms are broadly common for that class of worker.

This latest development confirms that where common terms exist across different sectors e.g. supermarket retail and distribution and pay is distributed through differing rates, a comparison may still be made. To succeed in their individual claims, the claimant’s must go on to show that their work is of equal value to their comparator. The burden then shifts to Asda Stores Ltd to demonstrate that any difference in pay is not related to sex and therefore not discriminatory. In the event that defence fails, claimants can seek back pay of up to six years.

Following the Court of Appeal’s decision and as a consequence of the gender pay gap reporting requirements, we may see a marked increase in this type of claim. Employers should therefore be mindful in their application of terms and conditions that they do not inadvertently apply common terms to a class of workers. Careful consideration should be given to the application of remuneration packages across the organisation, with clear and rational justification for any differences.

To read the full judgement click here.

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