The Court of Justice of the European Union (CJEU) has confirmed in K and ors v Tesco Stores Ltd that European law has direct effect in equal pay claims involving work of equal value between female workers and their male comparators. As such, women working in Tesco retail stores could compare their pay with men in the distribution centres.

Basic facts

About 6,000 women employees who worked in Tesco’s retail stores brought tribunal claims arguing that they had not received equal pay for work of equal value compared to male Tesco workers in the distribution centres. They argued that, although they worked in different locations, they were entitled to compare their work because both groups were paid from a “single source”. In other words, Tesco Stores. The company’s failure to pay them equally was, the women, said contrary to both domestic law (the Equality Act 2010) and European law (article 157 of the Treaty on the Functioning of the European Union).

For its part, Tesco Stores argued that, following the decision of the CJEU in Defrenne v Sabena, article 157 was not directly effective in the context of claims where the workers wanted to compare different work. This was because “work of equal value” unlike “equal work” had to be defined under specific provisions of national or EU law that were more explicit than article 157.

Relevant law

Article 157(1) of the Treaty on the Functioning of the European Union (TFEU) states that “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”.

Tribunal decision

As the tribunal was unsure whether article 157 had direct effect in these specific circumstances, it asked the CJEU to make a ruling.

Decision by CJEU

Rejecting Tesco’s arguments, the CJEU (weekly LELR 725) pointed out that the wording of article 157 clearly required every member state to apply the principle of equal pay for male and female workers for equal work or work of equal value.

It was also clear from settled case law that the direct effect of article 157 was not limited to situations in which comparator workers performed “equal work”, but also extended to situations of “work of equal value”. As such, 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” in cases where the work is carried out in the same establishment or service, whether private or public. The question as to whether the workers performed equal work or work of equal value was, however, a matter of factual assessment by a court.

Where the differences identified in the pay of workers performing equal work or work of equal value could not be attributed to a single source, then the situation did not come within the scope of article 157. By contrast, where the pay could be attributed to a single source, the work and the pay of those workers could be compared, even if they worked in different establishments.

Consequently, article 157 can be relied on 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, provided that the employer constitutes a single source.

In this case, the CJEU held that Tesco Stores “appears to constitute, in its capacity as employer, a single source to which the pay conditions of the workers performing their work in its stores and distribution centres may be attributed and which could be responsible for any discrimination prohibited pursuant to Article 157 TFEU”. This, however, was for the referring tribunal to determine.


This case restates the principle that equal pay for equal value, where there is a single source that decides pay, is directly effective under European law and, under the (current) arrangements for leaving the EU, those rights can still be used and enforced within the UK.

Given that we already have UK rights for equal pay for work of equal value, and the recent case of Asda Stores Ltd v Brierley (weekly LELR 722) establishes that you can compare men and women who work in separate establishments, this case is probably more a useful restating of the fundamental principle of equal pay for work of equal value than anything else.