Asda Stores Ltd v Brierley
Women working in supermarkets could compare themselves with men working in distribution depots at different sites, because common terms would apply if the men were employed at the women's establishment.
Facts
Thousands of employees, mostly women, working in Asda's retail stores brought equal pay claims, comparing themselves with employees, mostly men, working in Asda's distribution depots, who were paid more. Under section 1(6) of the Equal Pay Act 1970, a woman could compare herself with a man employed at a different establishment only if common terms and conditions applied at the two establishments. Asda argued that the retail and depot employees were not employed on common terms, because the terms of the depot employees had been negotiated separately with trade unions.
Legal principle
The Supreme Court held that the store employees could compare themselves with the depot employees. Lady Arden said that the question was whether the depot employees would be employed on broadly similar terms if they were employed at the stores, applying the North hypothetical test. This was a threshold test, intended to filter out cases where there was no real basis for comparison, and it was satisfied, because if the depot employees had been employed at the stores, they would have been employed on their existing terms. The question whether the work was of equal value, and whether any difference was justified, remained to be decided.
Related cases on equal pay
- Allonby v Accrington and Rossendale College Case C-256/01, [2004] ECR I-873
- Barber v Guardian Royal Exchange Assurance Group Case C-262/88, [1990] ECR I-1889
- Bilka-Kaufhaus GmbH v Weber von Hartz Case 170/84, [1986] ECR 1607
- Birmingham City Council v Abdulla [2012] UKSC 47, [2013] 1 AC 504
- Defrenne v Sabena (No 2) Case 43/75, [1976] ECR 455
- Enderby v Frenchay Health Authority Case C-127/92, [1993] ECR I-5535
- Glasgow City Council v Marshall [2000] 1 WLR 333
- Hayward v Cammell Laird Shipbuilders Ltd [1988] AC 894
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