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Equal Pay

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Does Article 157 of the Treaty on the Functioning of the European Union ('TFEU') have direct effect in equal pay claims made on the basis that Claimants are performing work of equal value to their comparators?

Yes, held the Court of Justice of the European Union (CJEU) in Tesco Stores (C-624/19).

Some 6,000 Claimants brought proceedings against their employer (or former employer) Tesco Stores Ltd, on the ground that they had not received equal pay for equal work, contrary to the Equality Act 2010 and Article 157 TFEU. Watford Employment Tribunal made a preliminary reference (Article 267 TFEU) to the CJEU.

Tesco submitted that Article 157 TFEU lacks direct effect in certain circumstances, such as when the workers compared perform different work. Tesco Stores maintained that the criterion of 'work of equal value', unlike the criterion of 'equal work', requires definition by provisions of national or EU law. Tesco also relied upon the findings of the CJEU in Defrenne (43/75), in that, according to Tesco, reliance upon the principle of equal pay for male and female workers when work of equal value is being compared is founded on a claim of discrimination that is identifiable only by reference to provisions more explicit than those of Article 157 TFEU.

The CJEU held that the above interpretation could not be supported by either the wording of Article 157 TFEU or case law. Article 157 "imposes, clearly and precisely, an obligation to achieve a particular result and is mandatory as regards both 'equal work' and 'work of equal value'." (para 20)

The CJEU noted that the terms 'equal work', 'same job' and 'work of equal value' in Article 157 TFEU are "entirely qualitative in character" in that they are exclusively concerned with the nature of the work actually performed (para 28). The objective pursued by Article 157 TFEU was also borne in mind, 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 (para 32).

Thanks to Oscar Davies, of Lamb Chambers, for preparing this case summary.