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Tesco loses latest round of supermarket equal pay fight
03/06/2021
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Tesco

The Court of Justice of the European Union (CJEU) has ruled that thousands of female employees working in Tesco stores can compare their roles to male colleagues working in distribution centres for the purpose of equal pay.

Before the UK left the EU, the CJEU was asked whether part of European law could be relied upon by UK workers making equal value claims against their employer.

Under EU law, a woman can compare their role to that of a man’s working in a different establishment if a “single source” has the power to correct the difference in pay.

Around 6,000 former and current shop floor workers brought proceedings against Tesco before Watford Employment Tribunal in February 2018, arguing they had not received equal pay for equal work, contrary to the Equality Act 2010 and the Treaty on the Functioning of the European Union (TFEU).

The tribunal stayed the proceedings in order for the CJEU to clarify whether Article 157 of the TFEU is directly effective in claims made on the basis that claimants are performing work of equal value to their comparators.

In its ruling, the CJEU said: “Where such pay conditions can be attributed to a single source, the work and the pay of those workers can be compared, even if they work in different establishments.”

The Luxembourg court’s decision is another blow to UK supermarkets. Earlier this year, the UK Supreme Court ruled that Asda shop floor workers can compare their roles to those of their colleagues in distribution centres for the purposes of equal pay.

These claims are extremely complex and will take many years to reach a conclusion. We continue to strongly defend these claims

“This judgment reinforces the Supreme Court’s ruling that the roles of shop floor workers can be compared to those of their colleagues in distribution centres for the purposes of equal pay,” said Kiran Daurka, a partner in the employment team at Leigh Day, which represented the claimants.

“For a long time, employers have argued that UK law in this area is unclear, but this judgment is simple, if there is a single body responsible for ensuring equality, the roles are comparable.

“Clarification from the CJEU confirms that this single-source test can be relied upon by people in the UK bringing an equal value claim. This means that employers can no longer hide behind the grey areas of UK law. It’s time for supermarkets to accept that the roles of shop floor workers and distribution centre workers are comparable.”

Tesco is the UK’s largest retailer with 3,200 UK stores that employ approximately 250,000 workers, while the company’s 24 distribution centres employ around 11,000 employees.

If the claims brought by supermarket workers are ultimately successful, then the retail giant faces a £2.5bn compensation bill, according to The Telegraph.

“To get a judgment confirming shop floor workers can use an easier legal test to compare their jobs to male colleagues in distribution is uplifting,” said Tesco worker Pam Jenkins.

“I’ve always been proud to work at Tesco but knowing that male colleagues working in distribution centres are being paid more is demoralising. I’m hopeful that Tesco will recognise the contribution shop floor workers make to the business and reflect that in our pay.”

A Tesco spokesperson said: “The jobs in our stores and distribution centres are different. These roles require different skills and demands which lead to variations in pay – but this has absolutely nothing to do with gender.

“We reward our colleagues fairly for the jobs they do and work hard to ensure that the pay and benefits we offer are fair, competitive and sustainable.

“These claims are extremely complex and will take many years to reach a conclusion. We continue to strongly defend these claims.”

Leigh Day is representing more than 50,000 workers in equal pay claims against ASDA, Tesco, Sainsbury’s, Morrisons, and Co-op supermarkets.