United Kingdom: equal pay - retail employees allowed to run comparison with distribution colleagues at different sites

In brief

The UK Supreme Court has confirmed that Asda retail employees (who are nearly all women) can continue their claim for equal pay as compared to Asda's distribution centre employees (who are nearly all men). The fact that they worked exclusively at different sites did not prevent the comparison. The decision removes one potential hurdle for claimants in equal pay litigation.



The issue the court had to deal with was that Asda's retail stores are at different locations to its distribution centres, and there was an argument that this difference in location precluded the retail employees from comparing themselves to the distribution centre employees. The court rejected that argument, and confirmed that the comparison could be made, provided the terms and conditions for the two categories of employee would not significantly change if they did their work at the other category's place of work. The court described this proviso as a "weeding out" function, to deal with cases where differences between claimants and their comparators are due to geography rather than sex. However, importantly, it also said that this should not involve a prolonged enquiry, and that it is likely that it would only put a stop to an equal pay claim in exceptional cases. The court explained this further:

  • "The aim of the equal pay legislation is to remove pay disparities that are endemic in some pay awards and which do not properly reflect the value of the work for which they are paid." This means that "comparisons between employees who did not and never could work in the same workplace [are allowed]."

  • It does not matter that the hypothetical move would never happen in practice, or would be unfeasible. The court approved the hypothetical scenario that a distribution centre would be built next door to a retail centre, with the conclusion that it was therefore unlikely that the distribution employee wouldn't then retain the same terms and conditions as at his original centre.

Employers with similar structures to Asda will therefore need to have cogent evidence that terms and conditions are truly tied to location in order to be able to stop an equal pay claim at a preliminary stage.

Note, however, that the court did not have to address the situation where the employees were employed by different associated companies, which could present employees with another hurdle - where the question would be whether the terms and conditions of employment still derived from a single source (such as if a parent company controlled or could control the pay policy in both).

It is 7 years since the claims in this case first began, and a number of battles still lie ahead for the parties. In particular, the core task will be to determine whether retail distribution centre workers are undertaking work of equal value. This will require a lengthy and costly process to objectively compare the demands of the different roles. Asda's own counsel predicted that this would take until 2025, and if the women win that argument, we anticipate Asda would argue that the pay difference has come about for reasons which are not connected with the employees' sex. So it may be many years before we see the final outcome.

In summary, it is still important to analyse early on whether alleged unequal pay is attributable to a non-discriminatory factor such as geography. However, it is now more likely that this type of mass equal pay litigation will progress to the substantive stage of assessing whether work is of equal value, and all the time and cost that this entails.

Asda Stores Ltd v Brierley and others, Supreme Court

Contact Information
Rachel Farr
Knowledge Lawyer at BakerMcKenzie
James Brown
Knowledge Lawyer at BakerMcKenzie
Mandy Li
Knowledge Lawyer

Copyright © 2022 Baker & McKenzie. All rights reserved. Ownership: This documentation and content (Content) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms). The Content is protected under international copyright conventions. Use of this Content does not of itself create a contractual relationship, nor any attorney/client relationship, between Baker McKenzie and any person. Non-reliance and exclusion: All Content is for informational purposes only and may not reflect the most current legal and regulatory developments. All summaries of the laws, regulations and practice are subject to change. The Content is not offered as legal or professional advice for any specific matter. It is not intended to be a substitute for reference to (and compliance with) the detailed provisions of applicable laws, rules, regulations or forms. Legal advice should always be sought before taking any action or refraining from taking any action based on any Content. Baker McKenzie and the editors and the contributing authors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The Content may contain links to external websites and external websites may link to the Content. Baker McKenzie is not responsible for the content or operation of any such external sites and disclaims all liability, howsoever occurring, in respect of the content or operation of any such external websites. Attorney Advertising: This Content may qualify as “Attorney Advertising” requiring notice in some jurisdictions. To the extent that this Content may qualify as Attorney Advertising, PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. Reproduction: Reproduction of reasonable portions of the Content is permitted provided that (i) such reproductions are made available free of charge and for non-commercial purposes, (ii) such reproductions are properly attributed to Baker McKenzie, (iii) the portion of the Content being reproduced is not altered or made available in a manner that modifies the Content or presents the Content being reproduced in a false light and (iv) notice is made to the disclaimers included on the Content. The permission to re-copy does not allow for incorporation of any substantial portion of the Content in any work or publication, whether in hard copy, electronic or any other form or for commercial purposes.