In anticipation of Britain’s departure from the European Union, thousands of Tesco supermarket employees have submitted an application before the European Court of Justice to demand clarification on provisions relating to the protection of workers.

The application is made on the basis that the predominantly female workforce on supermarket shop floors receives lower salaries than members of staff employed in Tesco warehouses and distribution centres, who are mostly male.

The basis of the claim is made with relation to unclear provisions of law relating to the manner in which equal pay claims can be made, in terms of comparing rates of pay among colleagues. It is hoped that the European Court will rule that such salary comparisons would be permitted between employees working in different establishments which are owned by the same employer.

Tesco argues that although it owns both the supermarkets and the distribution centres, different persons are responsible for employing the persons within these separate areas of the company. Therefore, contracts, salaries and benefits are not centrally controlled, so equal pay claims could not be made on the basis of EU law in order to compare salaries between employees across these establishments.

Under the Brexit withdrawal agreement, the result of a referral to the European Court of Justice on equal pay claims would still apply under UK law for future reference. If a no-deal Brexit goes ahead, it remains unclear as to whether or not the result of the application will apply, but it is hoped that it would still retain its effect owing to the fact that the application was made prior to the 31st of October.

Such clarifications would provide for greater clarity as regards workers’ rights in what is known as the Big 5 of the UK supermarket industry – Tesco, Sainsbury’s, Asda, Morrisons and Co-op. If this referral goes through, it may cost Tesco anywhere up to £4 billion in order to compensate the wage discrepancies being challenged.

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