In this equal pay case the issue in the appeal was whether the Claimants could compare their work with that of distribution workers based at depots, who were nearly all men and were paid more. The Judge held that they could, a decision Asda says was wrong and should be reversed.

The EAT dismissed the appeal and concluded as follows:

1. Although the point is not acte clair, the better view is that article 157 of the Treaty on the Functioning of the European Union is directly effective in a claim founded on equal pay for work of equal value. The Appeal Tribunal declines to make a reference to the Court of Justice of the European Union seeking a determination of this (or any) point.

2. Where there is a "single source" of pay and conditions for both claimant and comparator, a comparison between them is permitted independently of whether unequal treatment arises from legislation or collective agreements and whether or not the employment is in the same establishment or service.

3. Where no comparator works at the establishment where the claimant is employed, comparison is permitted applying the North hypothetical test. The better view is that the North hypothetical test remains good law and has survived the replacement of section 1(6) of the Equal Pay Act 1970 by section 79 of the Equality Act 2010.

4. The Employment Judge did not err in law in deciding that the law is as stated above. He did not misapply the law.  Nor were any of his findings of fact perverse. He reached conclusions that were open to him on the facts. There is no basis for interfering with his decision that the Claimants can compare themselves with their chosen comparators.