In this case law update, Hassan Tahir discusses Asda Stores Ltd v Brierley and Others.
On the 26th of March, 2021, the Supreme Court of the United Kingdomaddressed the issue of whether the employees in Asda Stores Ltd retail sector of operations were eligible to compare themselves with the employees of another sector,- namely those who worked in the distribution centers of Asda.
This issue arose due to the employees of the retail sector, predominantly females, attempting to claim equal pay by comparing themselves to the workers of Asda’s distribution centers, predominantly male employees, like their counterparts so they could then rely on the Equality Act of 2010 to validate and strengthen their equal pay claims by qualifying to be under the same employment. A preliminary hearing which took place in the Employment Tribunal allowed the claims to be based on such a comparison and after appealing to the Employment Appeals Tribunal and the Court of Appeals, both of whom dismissed Asda’s appeal to prohibit such a comparison for the claims, Asda then appealed to the Supreme Court.
Asda Stores Ltd, the appellant, was represented by Lord Pannick QC, Ben Cooper QC, and Hollie Higgins, all of whom were instructed by Gibson Dunn & Crutcher LLP.
Ms. S Brierley and others, the respondents, were represented by Andrew Short QC, Naomi Cunningham, and Paul Livingston, all of whom were instructed by Leigh Day.
Firstly, Mr. Stansfield [the Vice-President of Asda responsible for the distribution operations] explained in his evidence that the operations of Asda’s retail and distribution sector were absolutely and fundamentally different, going on to give the example that the distribution operations are not “consumer-facing”, directly opposing the operations of the retail sector. He went on to claim both sectors “evolved differently over time; operate in separate industries; have different objectives; are located in markedly different physical environments; demand different skill-sets; are subject to varied regulation and, most importantly, have distinctly different functions”. By presenting both sectors to be different to each other through this evidence, Asda was attempting to dismiss the idea that both the retail and distribution sectors were employed on common terms- a requirement for claimants to choose a comparator employed at another establishment, thus trying to prevent the distribution centers’ employees as being deemed fit comparators.
However, this submission was firstly disregarded as the common terms requirement was deemed to be only a threshold test by the judges present and hence unable to completely exclude the possibility of a case, where despite the presence of different establishments, there was sufficient commonality of terms, through non-direct comparisons, to mean that the claim should go to the next stage. The judges stated that the North hypothetical exhibited this sufficient degree of commonality in the case, and could complete the common terms requirement.
The Judges went on to elaborate on the validity of the comparison through the North hypothetical test. To be exact, The North hypothetical test asks the question of whether the two classes of employees trying to be compared in question would remain on essentially the same work terms, should they be (hypothetically) transferred in their current roles to the other site. If it is found that their terms of work are directly linked to the location, so that one the employees’ terms would change, they are not common terms. However, should their core terms remain largely unchanged by the hypothetical relocation, then the common terms requirement should be deemed satisfied, and “the one group may be a comparator for the other”, as any difference due to difference of location can be disregarded from consideration. Through this test, Asda’s employees in the retail and distribution sector were found to share common terms.
In summary, through this, it could be understood that, although the requirements for common terms were not directly met by the retail and distribution sectors of Asda Stores Ltd through “ line by line comparison between the terms and conditions”, through the North hypothetical, the requirement could be fulfilled as the employees of Asda would hypothetically keep largely the same terms when swapping location.
All of the Judges present, namely Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lady Arden, and Lord Leggatt unanimously agreed to dismiss Asda Stores Ltd appeal on the grounds that such a comparison between retail and distribution employees is perfectly acceptable on the grounds of common terms through the North Hypothetical.