One worker is on the shop floor helping customers and replenishing shelves. Another works in a depot supplying the stores. They work for the same business but may never enter the same building. Does the distance between them end an equal pay claim before anyone examines what the jobs involve? In Asda Stores v Brierley, that first question reached the UK Supreme Court.
The issue that came before the judges
The retail claimants, predominantly women, wanted to compare their pay with that of predominantly male distribution workers. The dispute in the Supreme Court concerned whether workers at separate establishments could be compared under the common-terms requirement. The judges asked whether the distribution workers would have remained on substantially the same distribution terms if employed to do their own jobs at the retail establishment. An actual depot worker stationed inside a shop was unnecessary.
The Court dismissed Asda’s appeal in 2021. The claimants had cleared this preliminary hurdle. The judgment did not determine whether the work was of equal value or whether any pay difference was explained by a legally sufficient material factor. Anyone relying on the case should keep those questions separate. Read Asda Stores Ltd v Brierley [2021] UKSC 10.
Compare the work behind the job title
For an initial conversation, list the demands of your own role. How much responsibility do you carry for people, stock or safety? Which decisions can you make without a manager? What training, effort and working conditions does the job involve? Then set out what you actually know about the comparator role, separating first-hand knowledge from assumptions.
The pay comparison itself needs detail too. Distinguish basic pay, shift allowances, bonus arrangements and the hours to which each figure relates. A job advert may help identify a pay band, but it may omit a contractual supplement or cover another group. Use records you are entitled to hold. You can ask an adviser or union about obtaining information without requesting colleagues’ private payslips.
Read the Acas equal pay guide. If the concern is the effect of a promotion rule, see Essop on indirect discrimination. For advice on a pay comparison, book an individual consultation.
