By Camille Ibbotson.
Can a group of predominantly female retail store employees compare themselves to a group of predominantly male distribution depot employees for the purposes of an equal pay claim? The Supreme Court will have the final say on this question this year, in the highly anticipated appeal in Asda Stores Ltd v Brierley and other.
The claim is brought by more than 37,000 retail employees, making it the largest private sector equal pay claim of its kind. Asda will argue that the two groups of employees are not comparable.
The key question for the Supreme Court will be whether ‘common terms’ apply for the relevant classes of employee at the stores and distribution centres, which are entirely different establishments, within the meaning of s. 1(6) EPA 1970 and s. 79(4) EqA 2010. The Court of Appeal, after reviewing the authorities, unanimously answered ‘yes’. Underhill LJ held that ‘Common terms’ could be established by applying the ‘North hypothetical’ (from Lady Hale’s judgment in North v Dumfries and Galloway Council  ICR 993), so that that if (however unfeasibly) distribution workers were employed to do distribution work at a store, they would be employed on distribution terms, and if (however unfeasibly) retail workers were employed to do retail work in depots, they would be employed on retail terms, then the test was satisfied. Asda will argue before the Supreme Court that the Court of Appeal mis-applied the test and that it is not satisfied in this case because the different sets of terms and conditions are tied to the different establishments, whatever jobs are performed there, not to the different jobs wherever they are performed.
The Supreme Court will also consider whether the right to equal pay under TFEU, Art. 157(1), is directly effective in an equal value case of this kind and, if so, whether it requires a different result that can be achieved on Marleasing principles.
If Asda wins in the Supreme Court, then that will bring the claims to an end. However, a win will not mean the end of the road for the claimants; the next questions for the ET are whether the work of the two groups is of ‘equal value’ and, if so, whether the material factor defence applies.
Ben Cooper QC, instructed by Gibson Dunn & Crutcher, is representing Asda in the Supreme Court.
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