The Employment Appeal Tribunal in the ASDA stores equal pay litigation has upheld the Tribunal’s decision that female claimants in retail stores can compare their pay with higher paid men in distribution centres. Matthew Potter, Employment Law Partner with Howes Percival.

This case has potentially significant implications for the retail sector. ASDA has been given permission to appeal to the Court of Appeal so this might not be the final word on the issue of whether the retail workers can compare themselves with their colleagues in the distribution centres”.

This case concerns around 7,000 claimants working in the retail division of ASDA and has potentially significant implications for the retail sector. The claimants assert that they do work of equal value with workers in ASDA’s distribution division, who are predominantly male. ASDA tried to argue that because the stores and distribution centres were in different locations, with different pay arrangements, female retail workers could not compare their pay with the men in the distribution centres.

However, the Tribunal found that there were common terms and conditions across the different locations so the claims could proceed (see our newsflash of 17 October 2016). Asda appealed but the Employment Appeal Tribunal has upheld the Tribunal’s decision.

The Employment Appeal Tribunal held that a comparison was permitted because: The Claimants’ and comparators’ pay, and terms and conditions, come from a “single source”. There are common terms and conditions across the different locations; and Comparison may be made with a hypothetical comparator where no actual comparator works at the claimant’s establishment.

The claimants must still show they carry out work of equal value to their male comparators in the distribution centres. If they succeed in that argument then ASDA will then have the opportunity to show that it has a “material factor defence” which could justify the pay disparity. The Employment Appeal Tribunal has given Asda permission to appeal to the Court of Appeal.