Equal Pay – ASDA Stores Ltd v Brierley and Others

This claim was brought by store-based employees who say that they are paid less than employees based in ASDA distribution centres. Store-based employees are predominantly female while distribution centre employees are predominantly male.
 
The employees have won the first round in that the Supreme Court has now decided that they are engaged on the same or substantially the same terms as those employed in the distribution centres. This is the first challenge.  The Court has basically said that it is not a difficult threshold to get over.
 
The next step is for a consideration of whether the work is of ‘equal value’. This usually involves obtaining ‘expert’ consultants’ evidence, looking at factors such as skills, training and responsibility.
 
If the employees succeed in showing that the work is of equal value there will still need to be consideration of whether there are reasons other than gender which explain the differential. In practice if the statistics show that employees in one area are of a particular gender and in the other line of work are predominantly of a different gender the equal pay rules are breached.
 
The equal pay legislation is extremely complicated. There can be no reasonable argument that if a male and female are doing the same job their pay should differ. However, trying to compare very different jobs at different places of work where on the face of it male and female are equally entitled to apply for either type of job is much more controversial. No doubt readers will have differing opinions on this, what is clear though is that the complexities of the legislation have spawned a highly remunerative business for equal pay lawyers and ‘experts’ appointed to undertake the comparisons between the differing roles.