Equal pay claimants can choose as comparators colleagues working at one of their employer’s establishments in a different location provided they are on “common terms”; the Supreme Court has now confirmed that the purpose of this test is only to exclude colleagues whose terms are different for geographical (or possibly historical) reasons. The ruling also confirms that there is no need for collective bargaining agreements to be in place for a cross-establishment comparison to be made.
The question is whether the comparators’ core terms and conditions would have been substantially the same had they been employed at the claimant’s establishment, even if this is entirely hypothetical because these types of jobs could not exist in that establishment. The Court stressed that it is a threshold test and cases where it cannot be met – where it can be shown that geographical factors are the real reason for the comparators’ terms – are likely to be exceptional.
Applying this to the facts found in Asda Stores Ltd v Brierley, the Court upheld earlier rulings that shop floor employees could use distribution depot employees as comparators. The depot employees’ core terms would not have changed had the location of their depot been adjacent to the retail stores. It is now for the claimants to seek to establish that their jobs are of equal value and for the employer to seek to show a genuine material factor defence.