Retail workers and distribution workers can be compared for equal pay…

Wednesday 21st April 2021

In Asda Stores v Brierley, the Supreme Court has confirmed that store employees could validly compare their terms and conditions with the distribution depot employees for the purpose of equal pay claims.


Over 35,000 of Asda’s retail store employees brought a claim against Asda, seeking compensation for receiving less pay than employees in Asda’s distribution depot. The employees in Asda’s stores were mostly female, compared to the employees in the distribution depots which were mostly male. The store employees argued that they were employed on “common terms” with the distribution employees, and thus were valid comparators in an equal pay claim. The key principle being tested was whether “common terms” were demonstrated between the Asda store employees and the distribution depot employees.


The Supreme Court held that the Court of Appeal was correct to reach the conclusion that the depot workers would remain on substantially common terms and conditions if they were, in theory, moved to work within its retail stores. Whilst the preliminary hurdle of whether the two groups of employees could be compared has been overcome, the retail store employees will now need to show whether or not they perform work of equal value in order to be successful in their claim for equal pay.


Companies must bear in mind that different roles, even in completely distinct parts of the business, may actually have terms similar enough to be classed as “common terms”. Companies will need to consider this when reviewing the terms and conditions (especially in relation to pay) that they are providing to different groups of employees. This is especially the case where different groups are substantially comprised of workers of the opposite sex, as in this case.

If you would like to discuss this further, then please contact one of our employment experts below. To view the full April Employment Law Update, click here: