Long awaited Court of Justice of the European Union view on application of Equal Pay law confirmed

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08 June, 2021

The Court of Justice of the European Union (CJEU) can now be added to the list of bodies bolstering the position of the claimants in the ongoing retail equal pay claims. This time it was Tesco taking the hit, with the CJEU confirming that supermarket shop floor workers can be compared to distribution centre staff.

As with the previous Asda rulings, this is essentially an interim procedural step and not a final decision as to whether the equal pay claim is successful. It was an attempt by Tesco's legal advisers to get the claim struck out on the basis that the distribution centre workers were not permissible comparators. The Court referred the matter to EU Judges in Luxembourg to seek clarification on a particular aspect of law derived from the EU referred to as the 'single-source' test. Under EU law, a comparator working in a different establishment can be used as a comparator if a single source has the power to correct the pay differential.

The CJEU affirmed this was the case and stated that the law of equal pay for equal value had direct effect in UK law and can be relied on directly in respect of both equal work and work of equal value. The matter was referred to the CJEU prior to Brexit and as such they retain jurisdiction. And without contrary action by the UK legislature the law will retain effect.

Whilst a final decision is many years, and no doubt interim applications, away, what is clear is that the Respondent retailers' options diminish with each ruling in favour of the claimants. Employers would be advised to undertake robust equal pay audits after the CJEU ruling on the application of the 'single-source' test. The Employment and HR Team at Forbes are experienced in Equal Pay and conducting audits, and also in advising claimants in relation to potential claims for equal pay.

For more information contact Rosalind Leahy in our Employment & HR department via email or phone on 01772 220185. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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