The Employment Tribunal has recently determined that female Asda store workers can compare themselves to male distribution depot workers for the purpose of their equal pay claim. This means that the way is now clear for them to continue with their claim and try to persuade the Tribunal that their work is similar enough to command the higher wage.
The claim brought by Asda store workers is based on their being mainly female, and paid less than their mainly male colleagues who work in the distribution depot. Their argument is that the store work is seen as “women’s work” and therefore perceived as of less value than the distribution depot work.
This case dealt with the initial technical argument raised by Asda that because of the way it was structured distribution was a quite separate entity from stores; i.e. that there were different bodies that had different responsibilities for setting wages as between store workers and distribution workers, or two different sources for decisions about wages.
Section 79 of the Equality Act 2010 says that employees can only be compared when they work in the same establishment or common terms apply as between the establishments. Gloss has been put on this rule by the European Court of Justice in the case of Lawrence v. Regent Office Care, when it held that a “single source” which was responsible for the inequality and would be able to restore equal treatment could be identified.
In this case a single source could be identified that was ultimately responsible for wages and could put right the inequality, namely Asda’s Executive Board.
The Employment Tribunal also accepted the argument that the 2 groups of workers were on broadly similar terms. They were both hourly paid and their terms set out in their relevant handbooks were broadly the same.
The less technical and more interesting job of actually comparing the work to see whether it is like work or work of equal value as between store workers and distribution workers can now happen and we will keep readers posted.