Asda had appealed against the decision of the Employment Tribunal that male staff working at distribution depots were appropriate comparators for the women who worked in its stores. Asda brought 10 grounds of appeal based on both European and English law. However, the Employment Appeal Tribunal (EAT) rejected Asda’s appeal in its entirety, holding that the judgment reached by the Employment Tribunal was sound.

One key issue under consideration by the EAT concerned the difference in the way the pay terms for the two sets of staff were set. The male depot staff had their pay terms determined following collective bargaining between Asda and the GMB trade union. However, the female staff were not heavily unionised and their pay depended instead on the geographical location of the store at which each of the women worked.

The EAT decided that the historical differences in how pay had been set was no barrier to the male staff being appropriate comparators for the female staff. Since both sets of staff were paid by Asda, it could be said that they had a single source of pay which made comparison between the jobs appropriate and the EAT agreed with this perspective:

“For all the intensity of Asda’s attack on the Judge’s reasoning and conclusions, far from considering them perverse I find them unassailable. This was an ordinary case of a large organisation delegating the setting of pay to separate internal organs…Asda or Wal-Mart could interfere at the stroke of a pen or, more likely, the click of a mouse.” Employment Appeal Tribunal

A further key issue concerned the fact that the two sets of staff did not work at the same location. The female staff were based at Asda’s stores while the male staff worked at distribution depots.

In such situations, equal pay legislation requires that the claimant and the person they are comparing themselves to for equal pay purposes have common terms and conditions of employment. In this case, although there were similarities between the terms and conditions of both sets of staff, there ware also some differences. The question to be decided was whether the differences were so significant as to prevent the jobs being compared.

The EAT disagreed with Asda’s argument that the terms could not be common because they differed in their “genesis and history” or were tied to the particular location at which the men and women worked. The EAT upheld the Tribunal’s finding that despite their differences the terms between the two sets of staff were “broadly similar” and permitted comparison for equal pay purposes.

Photograph: “Asda” by Flikr user Lordspudz used under Creative Commons Attribution 2.0 licence