A Landmark case for Equal Pay Rights – Asda Stores Ltd v Brierley and others [UKSC 2019/0039]

By Reva Naidu.

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In light of International Equal Pay Day 2024 on September 18, this article analyses the significance of the UK’s statute and recent domestic case law in establishing a strong foundation for equal pay claims. 

Introduction

According to the UK’s Equality Act 2010, men and women must receive equal pay for equal work. Equal ‘pay’ in this context refers to all benefits including but not limited to base salary, hours worked, pension amounts, bonuses, fringe benefits, leaves, and allowances, while equal ‘work’ refers to like work that is equal either in value or in the effort required to complete it. This right to equal pay is available to employees, workers, apprentices, and those employed either full-time or part-time with either temporary or permanent contracts. Thus, the legislation has a wide applicability and aims to ensure gender equality in pay throughout all levels and types of employment in the nation.

Despite this, The Guardian found that the gender pay gap is still skewed towards men – by up to 20%. The survey also found that over 25% of companies in the public sector pay their male employees more than their female employees. These figures are worrying – organisations such as The Fawcett Societyhave developed campaigns and demanded stricter rules for equal pay. This demonstrates the importance of case law in bridging the gaps between statute and statistics, by clarifying and conveying corresponding decisions. 

Case Facts

A landmark case in the field of gender pay inequality in recent years is the Asda Stores Ltd (Appellant) v Brierley and others (Respondents) UKSC 2019/0039. The case was appealed to The Supreme Courtfrom the Civil Division of the Court of Appeal.

ASDA is one of the largest supermarket and retail chains in the UK. ASDA’s female employees who worked in distribution requested reimbursement for the pay gap that existed for the past six years, citing their job as being equally valuable to that of the male distribution personnel. Given that the staff members of the distribution depot and the retail store are not employed at the same location, according to equal pay legislation, comparator groups must be employed on “common terms” that are equivalent to those that apply to them in the location where the claimants are based. Since there were no distribution staff members stationed at the retail locations in this case, the court was forced to speculate as to what kind of employment agreements the staff members might have had if they had been stationed there. Therefore, the main issue was whether workers at Asda’s retail operations have the right to compare their status to that of employees in the distribution centres in order to be eligible for benefits under section 79(4)(c) of the Equality Act 2010.

Decision and Findings

The ruling that ASDA employees are permitted to pursue their equal pay lawsuit further has been maintained by the UK Supreme Court. In order to support the idea that the work of store and warehouse workers is of equal merit and should have been granted equal pay, the UK’s highest court upheld an earlier Court of Appeal judgement stating that lower-paid store workers, who are primarily women, can compare themselves to higher-paid warehouse distribution workers, who are primarily men, for fair pay purposes. 

This case is particularly significant as it establishes a strong precedent for ‘equal work’ and how other domestic courts and tribunals must judge what it constitutes – they are not required to “entertain a detailed, line by line comparison of terms,” as stated by Lady Arden. The Honourable Judge further established, in agreement with the other judges, that since the comparator’s terms would not change based on the hypothetical relocation as provided in North, the claimants can resort to them, further substantiating the aforementioned precedent.

Ensuring Compliance for Employers

Ensuring that their organisation complies with Equal Pay regulations is essential for employers. They may achieve this through establishing transparent payment methods and regularly analysing these through a step-by step pay audit, as recommended by the Equality and Human Rights Commission. Transparent methods would include clarified job descriptions, a well-structured grading system, and job evaluation plans, along with taking steps to eliminate gender bias in bonuses, working time, and overtime payments. Non-compliance may cause employees to bring claims against employers, resulting in high legal fees, damage to the company’s reputation, and distrust within the organisation.

The case of Asda Stores Ltd v Brierley and others is a crucial reminder of the continuous fight for equal pay that persists in modern times, and serves as a reminder to businesses that implementing fair and transparent compensation structures is essential for ethical business practices as well as meeting legal requirements. 

Finally

As we commemorate International Equal Pay Day in 2024, it is imperative to acknowledge that although tremendous progress has been accomplished, ongoing attention to detail and dedication are still needed to attain true pay parity across all sectors and industries. A strong and entrenched equal pay policy which includes the aforementioned actions would allow employers to provide equal pay rights to their employees, helping them attract and acquire the best talent from the job market, thus promoting gender equality and diversity within the workplace.