Tesco Staff Win Equal Pay Claim
The Court of Justice of the European Union has ruled that workers can rely directly on EU law in their equal pay claim against Tesco.
The Case
In this case, approximately 6,000 female and male workers employed or formerly employed by Tesco and who work or worked in Tesco's stores claim that their work and the work of those employed by Tesco in distributions centres are of equal value and that they should therefore be entitled to equal pay for their store work.
The claims brought by male workers have been stayed on the basis that their claims are dependent on the outcome of the claims brought by female workers.
The female store workers argued that they were entitled to compare their work against the work carried out by the male workers in distribution centres even though the work was carried out in different establishments. The female workers argued that although the work was carried out in different establishments, their terms and conditions came from a "single source", that single source being Tesco as the employer.
The CJEU agreed with the female workers and held that they were entitled to rely directly on Article 157 of the Treaty on the Functioning of the European Union ("TFEU") in asserting their claims.
The matter will now return to the Employment Tribunal for determination.
This decision follows on from and is in line with the Supreme Court decision earlier this year involving Asda which enabled retail workers at Asda to compare their terms against staff working in Asda's distribution centres.
Do UK Courts Still Follow CJEU Decisions After Brexit?
Even though this CJEU decision was delivered after Brexit, the EU (Withdrawal) Act 2018 stipulates that direct EU legislation such as Article 157 of the TFEU, which was in force before Brexit, remains part of UK domestic law, even after Brexit. However, UK courts are not bound by such EU laws and do not have to follow CJEU decisions but they can consider them when making any judgments. Therefore, employers should be aware that despite Brexit arrangements, UK courts will most likely take CJEU decisions into account and apply them when appropriate.
What Should Employers Do Now?
Both this recent CJEU judgment and the Supreme Court decision in the Asda case are likely to make it simpler to bring group equal pay litigation involving comparisons between workers engaged at different establishments. Employers should ensure that their policies and values are in line with equal pay rights. It may also be sensible to review gender pay gap reporting data and/or undertake an audit of staff pay with a view to identifying potential areas of vulnerability to equal pay claims.