Birmingham Trades Union Council

As a preliminary point, the Court holds that it has jurisdiction, pursuant to Article 86 of the withdrawal agreement, 3 to reply to the request for a preliminary ruling, despite the United Kingdom’s withdrawal from the European Union.
Tesco Stores is a retailer that sells its products online and in stores located in the United Kingdom. The stores, of varying size, have a total of approximately 250 000 workers, who carry out various types of jobs. That company also has a distribution network with approximately 11 000 employees, who carry out various types of jobs. Approximately 6 000 employees or former employees of Tesco Stores, both female and male, who work or used to work in its stores, brought proceedings against it before the referring tribunal, the Watford Employment Tribunal (United Kingdom), from February 2018 onwards, on the ground that they had not enjoyed equal pay for male and female workers for equal work, contrary to national legislation and Article 157 TFEU. The referring tribunal stayed the male workers’ claims, since it took the view that their outcome depended on the outcome of the claims brought by the female claimants in the main proceedings.

As to the substance, the Court observes first of all, in respect of the wording of Article 157 TFEU, that that article imposes, clearly and precisely, an obligation to achieve a particular result and is mandatory as regards both ‘equal work’ and ‘work of equal value’. It recalls next that, according to its settled case-law, Article 157 TFEU produces direct effects by creating rights for individuals which the national courts must safeguard, in particular in cases of discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which work is carried out in the same establishment or service, whether private or public. The Court points out that it has explained that such discrimination is among the forms of discrimination which may be identified solely by reference to the criteria based on equal work and equal pay laid down by Article 119 of the EEC Treaty and that in such a situation a court is in a position to establish all the facts enabling it to decide whether a female worker is receiving lower pay than a male worker engaged in equal work or work of equal value. 4 Thus, it is apparent from settled case-law that, contrary to Tesco Stores’ submissions, the direct effect of Article 157 TFEU is not limited to situations in which the workers of different sex who are compared perform ‘equal work’, but extends to situations of ‘work of equal value’. In that context, the Court explains that the question whether the workers concerned perform ‘equal work’ or ‘work of equal value’ is a matter of factual assessment by a court.

Furthermore, the Court holds that the objective pursued by Article 157 TFEU, namely the elimination, for equal work or work of equal value, of all discrimination on grounds of sex as regards all aspects and conditions of remuneration, bears out such an interpretation. It observes in that regard that the principle, referred to in Article 157 TFEU, of equal pay for male and female workers for equal work or work of equal value forms part of the foundations of the European Union.

Finally, the Court points out that, where the differences identified in the pay conditions of workers performing equal work or work of equal value cannot be attributed to a single source, there is no entity which could restore equal treatment, with the result that such a situation does not come within the scope of Article 157 TFEU. By contrast, 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. Consequently, that provision may be relied upon before national courts in proceedings concerning work of equal value carried out by workers of different sex having the same employer and in different establishments of that employer, provided that the latter constitutes such a single source.

Read full judgement, ECoJ, https://is.gd/R6dFNe

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