Tesco Workers Bag Another Win in Supermarkets Equal Pay Litigation

In this article, Chambers UK Bar considers the European Court of Justice’s key ruling and looks at the leading UK employment law barristers involved in the case.

Published on 9 June 2021
Written by Sam Williamson
Sam WilliamsonSam Williamson

Unfair pay case at leading supermarket

The European Court of Justice (ECJ) has ruled that European law can be applied in the case of K and others v Tesco, allowing a direct comparison to be made between workers on the shop floor and in distribution warehouses.  

The claimants in the case allege that they – predominantly female supermarket workers – were unfairly paid less than distribution workers (mostly male), for work that is of equal value.

The ruling follows the Supreme Court’s decision in the parallel case of Brierley and others v Asda, which established that a valid comparison could be made between the two groups under the Equality Act 2010.  

What are the implications for equal pay and employment law in the UK?

The ECJ has held that Article 157 TFEU has direct effect in K and others v Tesco, even though the two comparator groups do not do the same work. Equal pay must apply where two groups do work of equal value.

Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. 
-- Article 157, TFEU 

Tesco sought to convince ECJ that the work could only be found to be of equal value where this was specifically defined ‘in EU or national law’. The ECJ rejected this argument, holding that national courts were competent to decide whether work was of equal value on consideration of the facts. 

How has Brexit impacted equal pay claims and rights?

This decision makes it potentially easier for claimants to bring equal pay claims, since it gives an additional route to establishing a comparison between two groups of workers. However, following Brexit, the extent to which UK tribunals and courts will (or must) follow this decision is a vexed question. No doubt leading specialists in both EU and employment law will make their views known.

Which leading employment law barristers were involved in the case?

The first group of claimants was represented by Sean Jones QC, an employment silk at 11KBW whom Chambers elevated to ‘Star Individual’ status in the 2021 rankings. Sean Jones QC led Andrew Blake and Natalie Connor from his own chambers.  

Outer Temple Chambers provided the counsel team for the second claimant group: Keith Bryant QC led Stephen Butler, Naomi Cunningham and Chloë Bell. 

Band 1 silk Paul Epstein QC of Cloisters appeared for Tesco. 

Read more about the top ranked lawyers and law firms in our London Employment Law rankings

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