UK: Court of Appeal confirms broad approach to permissible equal pay comparators and procedural requirements

The Court of Appeal has given two rulings in the long-running equal value claim against Asda, in both cases ruling on preliminary points in favour of the store workers claiming equal pay with distribution depot workers. The claims will now proceed to determine whether the roles are of equal value and, if so, whether the employer has a 'genuine material factor' defence (ie, a reason for the pay difference which is not tainted by sex discrimination).

The Court has ruled that claimants can submit multiple claims on a single ET1 form provided their roles are similar (they need not be identical) and the claims are based on the same set of facts; however, it is not necessary for all the claimants on one form to have the same comparators. Men bringing 'piggyback' claims based on female claimants winning their claim are not 'based on the same set of facts' and so must be issued on a separate ET1 claim form. Where claims are wrongly issued on the same form, this is an irregularity which the tribunal has a discretion to waive. The ruling means that employers are unlikely to succeed in striking out a claim that has improperly grouped claimants together, with tribunals more likely to order that claims be re-issued and perhaps only considering strike-out if this order is ignored.

The second ruling established that claimants can compare themselves with a comparator working in a different establishment of the employer, provided the respective terms and conditions of the relevant categories of employees (ie, the claimant's category and, separately, the comparator's category) would not differ significantly depending on which establishment they worked at. It is irrelevant if, in reality, one category of job does not exist at the other establishment. Because depot workers would be on broadly common terms wherever they worked, and so would store workers, the test was satisfied. The judgment means that in the majority of cases claimants will be able to compare themselves with any employee of their employer, wherever they work; the exception will be where employment terms are site-specific perhaps because of collective bargaining relevant only to that site (such that a relevant employee doing the same job at different sites would be on different terms).

Given this ruling based on domestic law, it was not necessary to consider whether EU law (which permits comparison where the claimant's and comparator's terms are set by a 'single source', ie the same employer) could have direct effect and be relied on in equal value claims against private employers. The Court indicated that, had it been necessary to decide the point, it would have referred it to the European Court of Justice. (Asda Stores v Brierley)