Last reviewed 16 June 2021

It is now five months since the end of the transition period when the UK finally left the European Union but cases referred from British courts are still working their way through the EU legal system and an important one has just concluded.

The EU’s Court of Justice (CJEU) has ruled in Case C-624/19 (Tesco Stores) in which it was asked whether part of European law could be relied upon by people in the UK making equal value claims against their employer.

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

Earlier this year, the UK Supreme Court ruled that Asda shop floor workers could compare their roles to those of their colleagues in distribution centres for the purposes of equal pay.

Now the CJEU has 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.”

Details of the CJEU judgment can be found at https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-06/cp210095en.pdf.

Law firm Leigh Day represents more than 50,000 supermarket shop floor workers, most of whom are women, who claim they are paid unfairly in comparison to distribution centre colleagues, most of whom are men.

A partner in its employment team, Kiran Daurka, said: “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.”

For a long time, she went on, 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.

However, 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.”

Comment by Kate Palmer, HR Advice and Consultancy Director at Peninsula

Similarly to the Asda equal pay case, it is quite a rare occurrence that a preliminary issue such as this one reaches the higher stages within a tribunal appeals process, and more so an EU court.

This matter, however, is one of extreme importance to the employees as a failure at this stage may have led to the entire equal pay claim failing at the first hurdle.

There are, however, still further stages for the employees to successfully navigate.

They will first be required to show that they were carrying out “work of equal value” in comparison to workers at the distribution centre, to which Tesco can argue that they have a material factor defence to justify any pay variances.

With mass equal pay claims against all four large UK supermarkets, this is a case which will have ground-breaking repercussions.