K and ors v Tesco Stores Ltd: Another Key Decision in the Fight for Equal Pay

On 3 June 2021, another key decision in the current sea of equal claim cases was announced by the European Court of Justice (ECJ).  The case, K and ors v Tesco Stores Ltd, which, as you may have guessed, was a claim against another UK supermarket heavyweight – Tesco. 

Background

Similar to the facts of the Asda case, (which we reported on here) approximately 6,000 current and former Tesco shop floor workers, predominately women, brought proceedings against Tesco in the employment tribunal on the grounds that they did not receive equal pay for work of equal value when compared to their, predominately male, colleagues in its distribution and warehouse centres.  The shop floor workers were paid up to £3 an hour less than the distribution centre and warehouse workers.

The Law

Under EU law, more specifically Article 157 of the Treaty on the Functioning of the European Union (TFEU), male and female workers must have their pay and conditions set by a "single source" before they can make comparisons for equal pay purposes.  This means that if there is a single body responsible for ensuring equality, in this case Tesco, roles within that body can be compared in relation to equal pay.  However, under the Equality Act 2010, a more detailed assessment of the similarity of contractual terms and conditions of the roles is necessary. Tesco argued the very technical point that the workers could not rely on Article 157 because they were claiming their work was of equal value to their distribution and warehouse comparators whereas Article 157 was concerned with equal work, a slightly different category in equal pay litigation.

To seek clarification on whether Article 157 could be relied upon, the Employment Tribunal referred the dispute up to the ECJ, when the UK was still a member of the European Union.

Decision

As a preliminary point, the ECJ confirmed that it has jurisdiction, despite the UK’s withdrawal from the European Union, to provide clarification on this matter. 

The ECJ then confirmed that where pay conditions can be attributed to a single source, the work and pay of those workers can be compared, even if they work in different establishments.  The Court went on to conclude that the principle laid down by Article 157 can be relied upon directly by the UK courts when dealing with work of equal value claims. 

What does this mean?

This latest decision reinforces the position that the roles of shop floor workers can be compared with those of their colleagues in distribution centres and, therefore, comes as another devastating blow to the UK supermarkets embroiled in long-running equal pay disputes. 

The outcome of this case also delivers a post-Brexit boost by confirming that, despite the UK withdrawal from the EU, EU law can still very much be relied upon.

The case will now return to a UK employment tribunal to determine whether the work done by the workers and their comparators is in fact of equal value and the reasons behind the pay discrepancy. Due to the complexity of this case, it’s likely to be several years before a final conclusion is reached.

How can we help?

If you have any questions about what this judgment means for you or your organisation, please get in touch with our Employment team.

This article was co-written by Sarah Milne, Trainee Solicitor.

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