Employment Cases Update

Asda Stores Ltd v Brierley and others [2019] EWCA Civ 44

Date published: 19/02/2019

Appeal against the EAT’s finding that the Claimants, mostly women working in the Respondent’s supermarkets, were entitled to compare themselves, for equal pay purposes, with employees working in the Respondent’s distribution operation. Appeal dismissed.

The Claimants acknowledged that they did not work in the same establishments as any of their comparators, because the Respondent's stores and its depots were entirely separate; but they claimed that "common terms of employment" applied at both, either generally or as between themselves and their comparators, so that they could rely on s 79(4)(c) Equality Act 2010 – or, as regards the period covered by the Equal Pay Act 1970, that they were in the same employment as defined in s 1(6). Alternatively, the Claimants relied on the direct effect of EU law, contending that comparison was possible in any case where there was a "single source" for the terms of employment of the claimant and the comparator.

The Court of Appeal held that, for both retail workers and distribution workers, the Respondent applied common terms and conditions "wherever they work". The effect of the case-law, and of North v Dumfries and Galloway Council [2013] ICR 993 in particular, was that the phrase "wherever they work" extends even to the hypothetical situation of a workplace where they would never, in practice, work because the nature of its operations is so different. The Court also found that there was a "single source" for the terms of employment, but was not required to decide whether the relevant EU provision had direct effect.

Employment Claims without a Lawyer 2nd edition published March 2018

Read the full text of the judgment on BAILII.