Asda Stores Ltd v Brierley [2021] UKSC 10 is a UK labour law case, concerning equal pay and comparators.
However, my conclusion, agreed by the other Justices hearing this appeal, does not mean that the claimants’ claims for equal pay succeed.
In the North case, nursery nurses and learning assistants employed by the local authority on terms in one collective bargaining agreement claimed that other employees of the local authority, such as refuse collectors, refuse drivers and leisure pool attendants, employed under another collective bargaining agreement, were comparators.
The EAT (Lady Smith) considered that in that situation the claimants had to show that the employment of the comparators at their establishment was a realistic possibility.
In a later case, City of Edinburgh Council v Wilkinson [2010] IRLR 756, the EAT (Lady Smith) had reached a different conclusion, with which the Inner House of the Court of Session agreed on an appeal in North (2011 SLT 203).
At paras 30 and 34 of her judgment, Lady Hale explained that the fact that male and female workers had to work at different establishments did not bar an equal pay claim.
Thus at para 30, she held: “As Lord Slynn had recognised in British Coal Corpn v Smith [1996] ICR 515, the object of the legislation was to allow comparisons to be made between workers who did not and never would work in the same workplace.
That modification is clearly capable of taking account of differences in the working hours or holiday entitlement in calculating what would be equally favourable treatment for them both.
Moreover, the equality clause does not operate if a difference in treatment is genuinely due to a material factor other than sex (section 1(3)).
The object is simply to weed out those cases in which geography plays a significant part in determining what those terms and conditions are.”29.
Lord Bridge envisaged that the presence of a collective bargaining agreement would be a paradigm but not the sole situation in which a cross-establishment comparison could be made.
On Lord Pannick’s submission, the presence of different employment regimes was the end of the matter so far as common terms was concerned.
It is clear that Lord Bridge did not go that far: he continued after the sentence already cited at para 43 above by saying that “In such cases”, ie if there were good reasons for having different employment regimes, then the common terms requirement would defeat the equal pay claims.
As Mr Short QC, for the claimants, points out, the need to find common terms only applies if there are different establishments and that shows that the concern is with geography rather than employment regimes.
Mr Short’s submissions, backed up as they are by the judgment of Lady Hale in North, to my mind make it very clear that the common terms requirement is intended to operate only within a very narrow compass where the differences in terms and conditions are wholly or mainly derived from the physical separation of the comparator’s establishment, and that it is not intended to prevent claims merely because as events have turned out there are different employment regimes.
Lord Pannick then proceeds to challenge the conclusion of the employment tribunal on the basis that common terms applied “generally” in the context of section 1(6).
As the Court of Appeal recognised, it was not correct for the employment tribunal to direct itself that it had to find “common terms generally as between claimants and comparators” (Judgment, para 88).
What the tribunal had to do was to make a broad comparison: see Lady Hale’s second principle in North, which draws on Leverton and Smith.
In my judgment, however, the fact remains that the employment tribunal applied the test of broad similarity to the wrong groups.