asda v brierley summary

104. The ET set out at para. 91. 15. In British Coal Corporation v Smith [1996] ICR 515 the applicants were female canteen-workers and cleaners employed at British Coal establishments[3] seeking the same terms and conditions as surface mineworkers at a number of pits. Secondly, it was common ground in Smith that what was required was a comparison between the terms applied to employees in the comparator class employed (a) at the comparator's establishment and (b) (though possibly only hypothetically) at the claimant's establishment i.e. If there is a document headed "Terms and conditions applying to employees [or, to cleaners and manual workers] at X and Y [or, at all establishments]" that will prove commonality by itself, whatever their content (subject only to checking that, despite the title, the document does not provide for different terms at different establishments). [Back], Note 1    It is to be noted that, even if, contrary to what Lord Bridge says, comparison were permissible in the case of his particular examples, the employer might be able to rely on the different historical and geographical contexts in order to raise a material factor defence. [Back] Note 7    See, for example, Jessemey v Rowstock Ltd [2014] EWCA Civ 185, [2014] ICR 550; and Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust [2016] EWCA Civ 607, [2016] ICR 903. At this preliminary stage of the analysis it makes sense that the focus is only on commonality of terms between establishments: the time for comparing the terms of the claimant and her comparator is at the substantive stage, if a cross-establishment claim is permitted. ASDA Stores Ltd v Brierley & Ors [2016] EWCA Civ 566. The preliminary issue could have been decided on the straightforward basis that Asda's terms for retail workers and for distribution workers both applied wherever they worked. 42. And in mass claims involving claimants at many different establishments it would be very inconvenient to have to pick a comparator at every establishment. That was important because Asda's retail and distribution operations were in substance different businesses, with wholly different origins and locations: see para. 83. But the passage is clear, and since it is binding there is nothing more to be said. It is in fact clear from the passages quoted at paras. 109. 36. 4. Interact directly with CaseMine users looking for advocates in your area of specialization. Ground 8: "Misapplication of 'North hypothetical' test". In doing so, the CA considered in detail the question of ‘common terms’ and the appropriate analysis of this aspect of an equal value claim. 73 below). 48. But I would if necessary rely on a Marleasing approach. A preliminary hearing to determine that question took place in the Employment Tribunal in Manchester before Employment Judge Ryan over six days in June 2016. This is Asda's appeal against that decision. Which gateway it makes sense to focus on depends on the circumstances of the particular case (as to this, see further para. The "broad similarity" which Lord Slynn said was required was between the terms of the surface mineworkers at different pits: if there was no such similarity it would be impossible to say that mineworkers enjoyed the same terms wherever they worked and thus that a mineworker employed at an office in, say, London where a claimant worked would be paid the same as her comparator at a pit in Yorkshire. As to that issue, they put their case on two bases, which I take in turn. More importantly, such a construction simply does not make sense in the specific context of section 79 (4). In case of any confusion, feel free to reach out to us.Leave your message here. 49 and 57 above that she envisaged cross-establishment comparisons being possible between very different kinds of operation of the same employer. Asda supermarket workers’ long-running legal battle to receive pay equal to their colleagues who work in the company’s warehouses is being considered in … The North hypothetical is, to repeat, simply a way of asking whether the terms for the relevant employees apply irrespective of where they work. [1] in the passage quoted); but he was there addressing a different error. Most of their terms and conditions were also governed by a single national collective agreement, but crucially to the issues on the appeal in two particular respects that was not the case: entitlement to concessionary fuel was determined on an area-by-area basis and incentive bonus payments (which might represent as much as 15% of earnings and were accordingly certainly not de minimis) were the subject of pit-by-pit negotiation. 190 of his Reasons: He observed (at para. I would, however, be slow to criticise him for doing so since the Claimants submitted that such an exercise was required, and it is far from clear that the objections now raised by Asda were developed in the same way below. 35, 43 and 48 above). 94. They are claiming equal pay with comparators employed in the distribution depots, jobs done overwhelmingly by men. 16) that the point was not acte clair, observing (at para. The summary is not quite as explicit as it might be, but the basic argument is straightforward. The House of Lords dismissed her appeal, but only on the material factor ground. For the reasons given I would uphold the decisions of both the ET and the EAT that the Claimants are entitled under section 79 (4) (c) of the 2010 Act (and section 1 (6) of the 1970 Act as regards the earlier period) to compare themselves with distribution workers in other establishments. She continues (p. 1006 D-F): 58. Mr Short submitted that, whatever language the Judge might inadvertently have used, he was in substance performing the right exercise; but it seems to me clear that he was not. 102-110 a smaller number of "more substantial" differences: for example, retail employees are not entitled to overtime pay while distribution employees are. It seems that the Judge fell into the error that he did because he was a victim of the misunderstanding of the references in Smith to "broad similarity" which I discuss at para. by Meredith Hurst. 75. The third point depends on what are said to be the ET's findings "that store terms are specific to stores and depot terms are specific to depots", and it is said that it necessarily follows that a distribution worker doing distribution work (however unfeasibly) at a store would not enjoy distribution terms. That is unexceptionable, but the history of the present case shows that the phrase is capable of being (mis)understood as referring to a similarity between the applicants' terms and their comparators'. 44. I believe that the effect of Lady Hale's reasoning on the single source point can be analysed as follows: (1) The fact that the claimants were employed by the same employer as their comparators meant, in that case, that their terms and conditions had a single source within the meaning of Lawrence: see para. As developed in Asda's skeleton argument, this ground comprises two distinct points, as follows: The first relates to observations by the Employment Judge about the details of the relevant hypothesis: in para. I reach that conclusion, as the Employment Judge did, without seeking any support from EU law. 230-235 he summarises the Claimants' submissions, which at para. Appeal dismissed. The applicant's claim was dismissed by a majority in the industrial tribunal ("the IT"), on the basis both (a) that she was not in the same employment as her comparators because none of them was employed at the same establishment as her and (b) that, even if she was, the difference between her terms and theirs was due to a material factor other than the difference of sex. Published 8 March 2019 Last updated 28 January 2020 + … He described the IT as having taken "a broad common sense approach in accordance with the speech of Lord Bridge [in Leverton]" (p. 528 G-H).

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