Today the Court of Appeal handed down its judgment on comparability in the case of Asda Stores Ltd v Brierley and others [2019] EWCA Civ 44, which is the UK's largest ever private sector equal pay claim. The court concluded that Asda's predominantly female shop workers are entitled to compare themselves with Asda's predominantly male warehouse workers, when making their claims of equal pay for work of equal value.
Legal argument in the case was wide-ranging. In summary, however, Asda's position was that because it set the more favourable terms and conditions for the warehouse workers separately to the terms and conditions of the shop workers, the two pay regimes were distinct and incomparable. This argument was resoundingly rejected by the Court of Appeal who found that the comparison was valid applying both domestic and European law.
The decision is important for the future of equal pay claims because it makes clear that employers cannot avoid liability through the physical separation of male-dominated and female-dominated workforces.
In the Isle of Man, the right to bring a claim for equal pay for work of equal value will come into force on 1 January 2020 under the provisions of the Equality Act 2017. Manx employers should take note of the gathering force of equal pay claims in the UK and take steps to ensure that they operate pay equality within their organisations.
Keira Gore, instructed in her capacity as an independent English Barrister, appeared as Junior Counsel for the shop workers in this case.
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