The Claimants acknowledged that they did not work in the same establishments as any of their comparators, because the Respondent's stores and its depots were entirely separate; but they claimed that "common terms of employment" applied at both, either generally or as between themselves and their comparators, so that they could rely on s 79(4)(c) Equality Act 2010 – or, as regards the period covered by the Equal Pay Act 1970, that they were in the same employment as defined in s 1(6). The Claimants were successful at the ET and Asda appealed unsuccessfully against the ET judgment at the EAT, and again to the Court of Appeal which was also unsuccessful. They appealed to the Supreme Court.

The court dismissed the appeal. A threshold requirement for equal pay claims to be brought is that claimants must be able to compare themselves to a valid comparator. The comparator must be a real person employed by the same, or an associated employer. If the claimants choose a comparator based at another establishment (which will involve the making of a "cross-establishment comparison"), "common terms" must apply at both the claimants' and the comparator's establishments (the terms do not have to be identical or the same). The Claimants succeeded on the North hypothetical which is, assuming that the comparator was employed to do his present job in the claimants' establishment, the existing terms and conditions would apply.

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