Asda Stores Ltd v Brierley

Article 157 TFEU is directly effective in an equal-value claim involving actual claimants and comparators. The need for factual evaluation, including expert evidence, does not make job evaluation incapable of judicial determination.

Where pay and employment conditions derive from a single source capable of restoring equality, comparison is permitted even where workers are employed at different establishments and under different statutory or collective arrangements. The North hypothetical remains available where no comparator works at the claimant’s establishment. Section 79(4)(c) of the Equality Act 2010 should be construed as preserving that approach.

About 7,000 predominantly female Asda retail employees brought equal-value claims comparing themselves with predominantly male distribution employees working at separate depots. The Employment Judge held that the claimants could use those comparators.

Asda appealed, challenging direct effect under article 157 TFEU, the single-source requirement, the finding that common terms applied, the use of the North hypothetical, and the interpretation of section 79 of the Equality Act 2010.

The central issue was whether the claimants could compare themselves with distribution workers despite working at different establishments and under separately administered terms.

1. Appeal dismissed. The Employment Judge’s decision was upheld. The claimants could compare themselves with their chosen distribution-worker comparators.
2. Article 157 TFEU was directly effective in an equal-value claim involving actual jobs performed by actual workers. The right to equal pay for work of equal value was unconditional and sufficiently precise. Job evaluation, even where complex and assisted by expert evidence, was an ordinary factual exercise for a court or tribunal. The better view was that direct effect did not extend to hypothetical comparators, but that limitation did not prevent the present claims.
3. The single-source principle was a freestanding gateway to comparability. It did not impose an additional requirement of the same establishment, collective agreement or statutory framework. The relevant question was whether a common body was responsible for the unequal treatment and capable of restoring equality. Separate internal mechanisms within a large employer did not prevent a single source where the employer retained practical oversight and power to intervene.
4. The statutory common-terms comparison under section 1(6) of the Equal Pay Act 1970 and section 79 of the Equality Act 2010 was an ordinary factual judgment. The tribunal could compare the content, history and operation of the terms. Geographical differences, separate negotiation, non-contractual contextual matters and differences that were themselves the subject of complaint were not automatically decisive.
5. The North hypothetical was properly applied. Where no comparator worked at the claimant’s establishment, the tribunal could ask whether broadly similar terms would apply if the comparator performed the same job at that establishment. Direct and indirect evidence, including industrial common sense and reasonable assessments of probability, could be used.
6. Section 79(4)(c) preserved the substance of the former provision. It permitted comparison where common terms applied, or would apply, at the establishments, including between a claimant and a hypothetical equivalent comparator.

• Employment Appeal Tribunal: dismissed Asda’s appeal and upheld the Reserved Decision of Employment Judge Tom Ryan dated 13 October 2016.