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Worker can be Valid Comparator in Another Employee’s Equal Pay Claim Even if their Pay is Determined by a Different Department

Worker can be Valid Comparator in Another Employee’s Equal Pay Claim Even if their Pay is Determined by a Different Department

Businesses in which female workers receive less pay than male workers (or vice versa) for what may be comparable work, should assess the risk of an equal pay claim, even if the workers are employed in different parts of the business where workers’ pay is set independently, following a recent ruling.

A group of over 7000 mainly female retail and checkout workers at a supermarket claimed that their jobs were comparable to work being done by mainly male workers in the supermarket’s distribution depots who were being paid between £1 and £3 per hour more. They claimed they should therefore receive equal pay to those workers.

Under UK discrimination law, women and men doing equal work are entitled to receive equal pay. A person claiming equal pay has to find a valid ‘comparator’ who is being paid more, and then show their work is of equal value to the work being done by the comparator.

The supermarket raised a preliminary objection to the claim by arguing that the two types of worker were not comparable. For this purpose workers are comparable if they both have the same employer and:

• Work at the same establishment, or
• Work at different establishments but ‘common terms apply at the establishments’ (whether generally or between an individual and their comparator)

The employer argued that its retail and distribution operations were managed through different divisions, each of which determined pay for its workers separately from the other. The workers in each therefore worked at different establishments.

The Employment Tribunal (ET) ruled that the organisation of the business into divisions was irrelevant because there was a single controlling body for both divisions – the main board of the supermarket – which was ultimately responsible for the unequal pay and had power to insist on equal pay for workers in each division if it chose to do so.

The ET also found that the terms of employment, although they differed in some respects, were broadly the same, which meant ‘common terms’ applied. The distribution workers were therefore valid comparators when determining whether the retail and checkout workers should receive equal pay.

The issues of whether the retail employees’ jobs are of equal value to those of the comparators in the distribution division, and whether there is a material reason for the unequal pay, remain to be determined.

Operative date

• Now

Recommendation

• Businesses in which female workers receive less pay than male workers (or vice versa) for work which they could claim was comparable should assess the risk of an equal pay claim, even if the workers are employed in different divisions of the business, each of which sets their workers’ pay independently

Case ref: ASDA Stores Ltd v Brierley & Ors 2406372/2008

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Jonathan Waters
 is the founder of Helix Law. Before qualifying as a Solicitor he worked in industry and in investment banking for over a decade. He was also the Partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. Jonathan has wide experience of helping and advising businesses to avoid or to deal with commercial disputes and in particular construction disputes.

This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of  this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice. 

Contact Helix Law on 01273 761 990 or email: [email protected]