Barristers win major Supreme Court employment equal pay case

Learn about a hugely significant victory for a top employment silk against a supermarket giant over equal pay.

Published on 31 March 2021
Written by Sam Williamson
Sam Williamson

Supermarket workers win major equal pay case

Leading employment law silk Andrew Short QC of Outer Temple Chambers has achieved a major victory for the claimants in the Supreme Court equal pay case of Brierley and others v Asda. Instructed by Leigh Day, Mr Short led barristers Naomi Cunningham and Paul Livingston, also of Outer Temple Chambers’ employment team, in successfully resisting Asda’s appeal. 

Representing Asda in the case were Lord Pannick QCBen Cooper QC and Hollie Higgins. 

What is the claim against Asda about and how significant is the Supreme Court’s judgment?

Brierley and others v Asda is a major equal pay claim which began in 2014. The claimants, a large group of mainly female supermarket workers, sought to establish that they were unfairly paid less than predominantly male distribution workers, for similar work. The key issue in the Supreme Court appeal was whether a valid comparison could be drawn between these two roles – particularly whether they were employed under ‘common terms’. 

The Supreme Court has decided that the distribution workers were a valid comparator for the claimants. Learn more about this decision here. While this judgment does not mean that the equal pay claim has succeeded, it is a big step in the claimants’ favour, in a case expected to advance pay parity and to cost the retail industry billions of pounds. Similar claims have also been brought against Sainsbury’s, Next and others. 

These claims fit into a broader trend. Employment tribunals and the courts are increasingly being asked to consider pay differences between men and women. The journalist Samira Ahmed scored a notable legal victory against the BBC in 2020 after it was revealed Jeremy Vine was paid around six times more than her. Matrix Chambers’ Claire Darwin represented Samira Ahmed. 

An important litigation case on equality

The case also presents a notable example of the success that can be achieved using group litigation as a method of bringing a large claim. Group claims have increased in recent years across numerous areas of law, including competition, data protection, personal injury and financial services. Chambers UK Bar will be researching Group Litigation for the first time this year. 

Read more about equal pay and employment law in the Chambers UK Bar Employment rankings. 

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