Asda’s store staff, predominantly women, sought to compare their pay with that of predominantly male distribution staff at separate depots. Before a tribunal could consider whether their work was of equal value, it had to decide whether workers at those depots could serve as comparators at all.
The two groups worked under different pay arrangements. Asda set retail terms through its own processes, while distribution terms were set by collective bargaining. The claimants relied on the more favourable distribution pay.
The question whether the distribution employees were valid comparators was tried as a preliminary issue. Under section 1(6) of the Equal Pay Act 1970 and section 79(4) of the Equality Act 2010, a comparator at another establishment may be used only where common terms apply at the establishments, either generally or as between the claimant and comparator. The employment tribunal found for the claimants. Asda’s appeals to the Employment Appeal Tribunal and the Court of Appeal failed.
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What “common terms” means
Parliament did not define common terms. Lady Arden explained, by reference to Leverton v Clwyd County Council, British Coal Corporation v Smith and Dumfries and Galloway Council v North, that the requirement has a limited threshold purpose. It allows employees at another establishment to be used where their terms would be broadly the same if they worked at the claimants’ establishment, and it excludes comparisons whose terms cannot realistically be transposed because of geographical or historical differences. It is not a line-by-line comparison between the claimants’ terms and the comparators’ terms, and different employment regimes do not by themselves defeat a claim.
Where nobody from the comparator class works at the claimants’ establishment, the North hypothetical asks whether the comparators would be employed on broadly similar terms if they performed their existing jobs there. The transfer need not be realistic or feasible. The comparators are assumed to continue their own work at an appropriate part of the site, which in this case could be visualised as a depot next to a store.
The findings below
The employment tribunal concluded that distribution employees would retain substantially their existing terms rather than receive retail terms. It regarded Asda’s evidence that transferred employees would simply take the rate for the job at the new location as less persuasive than the inherent improbability that distribution employees would surrender more favourable terms. The Court of Appeal held that the tribunal had asked the wrong question by comparing retail and distribution terms in detail, but that the North hypothetical was decisive and had been answered correctly in the claimants’ favour.
The Supreme Court’s reasoning
Lady Arden, with whom Lord Reed, Lord Hodge, Lord Lloyd-Jones and Lord Leggatt agreed, held that those findings should stand. There was no misdirection of law, and an appellate court should not interfere with the tribunal’s assessment of the evidence. Asda’s need for consistent terms within its stores, differences between particular terms, and selected answers in cross-examination did not undermine the conclusion. The hypothesis did not require distribution work to be performed in the customer-facing part of a store.
The Court therefore did not need to decide whether the claimants could also succeed on another basis or under EU law’s single-source test. It emphasised that future tribunals should keep this threshold enquiry narrow, avoid document-heavy line-by-line comparisons, and not use it as a substitute for assessing equal value or a genuine material factor defence.
Verdict: The Supreme Court unanimously dismissed Asda’s appeal. Distribution employees could be used as comparators. This preliminary ruling did not decide whether the work was of equal value or whether Asda had a defence to any difference in pay.
Source: Asda Stores Ltd v Brierley and others [2021] UKSC 10
