Judgment;Abstract — ECLI:EU:C:2021:429
Date: 2021-06-03
Language of the case: English
Court formation: Second Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

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Case No. 3304495/2018 and others
EMPLOYMENT TRIBUNALS
Claimants Respondent
K ■■Band others Tesco Stores Limited
In the Watford Employment Tribunal
ORDER
1. The Employment Tribunal will make a reference to the Court of Justice of the European Union in the 
form annexed to this order and asking the following questions:
1.1.1s Article 157 of the Treaty on the Functioning of the European Union (TFEU) directly 
effective in claims made on the basis that claimants are performing work of equal value to 
their comparators; and
1.2.If the answer to question 1 is no, is the single source test for comparability in Art. 157 distinct 
from the question of equal value, and if so, does that test have direct effect?
2. By reason of the reference having been made, the issue of comparability for the purposes of equal 
value claims is stayed. All other issues will continue to determination.
Registered at the
Court of Justice under No., \ A J
22- 08 ?019 F^R^r
Fax/E-mail:___ L________ DO ✓
Received on:
Cecilia Stromholm 
Administrator
Employment Judge Manley
Watford Employment Tribunal 
_2±......... ..............................
Dated
Case No. 3304495/2018 and others
Order sent to the parties on
aa.|g/l^ -
For the Tribunal Office
3rd Floor, Radius House, 51 Clarendon Road, Watford, Hertfordshire, WD17 
1HP
NOTES: You may apply under rule 29 for this Order to be varied, suspended or set aside.
IN THE WATFORD EMPLOYMENT TRIBUNAL
BETWEEN
CASE NUMBER 3304495/2018 & others
K & OTHERS
CLAIMANTS
-AND-
TESCO STORES LIMITED
RESPONDENT
REQUEST FOR PRELIMINARY RULING OF THE COURT OF JUSTICE OF THE 
EUROPEAN UNION - ANONYMISED
REFERRING TRIBUNAL
Name: Employment Judge Manley, Watford Employment Tribunal
Address: HMCTS, Radius House, 51 Clarendon Road, Watford,
United Kingdom, WD17 1HP
Tel: 0044 1923 281 750
Email: watfordet@iustice.aov.uk
11/57528705,3 1
CLAIMANTS’ REPRESENTATIVES
Leigh Day Claimants
Name: Kiran Daurka, Leigh Day
Address: Leigh Day, Priory House, 25 St John’s Lane, London,
EC1M4LB
Tel: 0044 207 650 1267
Email: kdaurka@leiahdav.co.uk
Harcus Claimants
Name: Edward Parkes, Harcus Sinclair UK Limited
Address: 7th Floor, Melbourne House, 44-46 Aldwych, London, WC2B
4LL
Tel: 0044 3995 3900
Email: eparkes@harcus-sinclair. ltd, uk
Unrepresented Claimants
There are five unrepresented claimants whose information has not been provided
for data protection reasons in this reference. Should vou require this information.
please let us know.
RESPONDENT’S REPRESENTATIVES
Name: Andrew Taggart, Herbert Smith Freehiils LLP
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Address: Exchange House, Primrose Street, London, EC2A 2EG
Tel: 0207 466 2434
Email: Andrew.Taaaart@hsf.com
QUESTIONS REFERRED
1. Is Article 157 of the Treaty on the Functioning of the European Union (TFEU) 
directly effective in claims made on the basis that claimants are performing work 
of equal value to their comparators?
2. If the answer to question 1 is no, is the single source test for comparability in Art. 
157 distinct from the question of equal value, and if so, does that test have direct 
effect?
BACKGROUND
3. All the claimants in these proceedings, at the time of this Order, numbering 
around 6,000, bring claims that they have not received equal pay for equal work 
contrary to UK domestic law set out in the Equality Act 2010 and also Article 157 
of the TFEU.
11/57528705,3 3
4. Some of the claimants are represented by Leigh Day, solicitors, Leigh Day Priory 
House 25 St John's Lane London EC1M 4LB (“the Leigh Day claimants”) and 
others by Harcus Sinclair UK Limited, 3 Lincoln’s Inn Fields, Holborn, London 
WC2A 3AA (“the Harcus claimants”).
5. The respondent is represented by Herbert Smith Freehills LLP, Exchange 
House, Primrose St, London EC2A 2EG.
6. Claims were first presented in the Employment Tribunal in February 2018 and 
continue to be presented.
7. The respondent is a UK retailer which sells amongst other things groceries, 
clothing and general merchandise both on-line and through approximately 3,200 
retail stores, which are located throughout the United Kingdom. The 
respondent’s retail stores vary in size from approximately 4,000 square feet in 
the case of smaller stores, to 185,500 square feet in the case of larger stores. 
Employee numbers per store range from approximately 20 in the smaller stores 
to approximately 700 in the larger ones.
8. The total in store workforce numbers approximately 250,000, the majority of 
whom are hourly paid. There are around 30 different core jobs carried out within 
stores, although these may vary both in terms of number and type, depending 
amongst other things on the size of the particular store.
9. The respondent also has a distribution division. The respondent currently relies 
on a distribution network of 24 distribution centres ("DCs") across England, 
Scotland and Wales, two of which (Washington and Newton Abbott) are 
operated by a third party.
10. The DCs encompass three different formats - (i) chilled and frozen foods (ii) 
ambient and (iii) clothing/non-food goods - and employ approximately 11,000
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hourly paid employees. There are numerous different core jobs carried out in the 
DCs although there can also be variations in those jobs within individual DCs.
11. The claimants are hourly paid employees or former employees of the respondent 
who work or worked at one or more of various stores of the respondent.
12. The claims brought by the Leigh Day claimants and the Harcus claimants are 
the same in their material elements.
13. There are claims brought by female and by male claimants.
14. The female claimants’ case is that they are entitled to compare their work to that 
of male comparators employed by the respondent (or by associate companies 
of the respondent) at one or more distribution centres (“the comparability issue”). 
In other words, these comparators are employed at different physical locations 
from the claimants, and the claimants make so-called “cross-establishment 
comparisons". Whether this is permissible in these cases is a principal issue.
15. On the comparability issue all claimants rely on domestic and/or EU law as 
permitting the comparisons to be made.
16. The Claimants’ case is that they are entitled to compare themselves with 
comparators employed in distribution centres for the purposes of pursuing an 
equal pay claim because:
16.1. Under section 79(4) of the Equality Act 2010, common terms of 
employment apply at the stores at which the Claimants work and 
the distribution centres at which the comparators work, either 
generally or as between the Claimants and any or all of the 
comparators; and
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16.2. Under Article 157 of the TFEU (and its previous incarnations), there
is a single source (i.e. the Respondent) for the terms and conditions 
of employment of the Claimants and the comparators.
17. The Respondent denies that the Claimants can compare themselves with 
comparators employed at distribution centres because:
17.1. Under section 79(4) of the Equality Act 2010, there are not common 
terms of employment; and
17.2. In relation to Article 157 of the TFEU:
17.2.1. The Claimants cannot rely on Article 157 because it is not directly 
effective in equal value claims; and
17.2.2. In any event, there is not a single source for terms and conditions 
of employment at stores and distribution centres, as the store and 
distribution sides of the Respondent’s business operate 
independently. In particular, aside from setting the overall pay 
budget, the Respondent has no oversight or control over setting 
pay at its distribution centres.
18. Both sets of female claimants claim that their work is of equal value to the work 
of those comparators (“the equal value issue”) although the Leigh Day claimants 
seek to reserve their position as to whether their work has been rated as 
equivalent to that of their comparators under a job evaluation scheme (“JES") or 
is like work.
19. The male claimants bring contingent claims that depend for their success on the 
success of female claimants’ claims in these proceedings. The male claimants 
claim that their work is like work, rated as equivalent or equal value to the work 
of those female claimants.
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20. Their claims may also, though not necessarily, be cross-establishment 
comparisons. For example, a male claimant filling shelves may rely on a 
successful female claimant filling shelves in the same store where he works. This 
would be a like work claim. Although less likely, he may however rely on a 
successful female claimant working on different work in a different store. That 
would be an equal value cross-establishment comparison.
21. To date the Employment Tribunal has made orders for the management of these 
claims, in particular with a view to determining whether the female claimants’ 
Jobs are of equal value with their comparators.
22. For that purpose, the jobs to be evaluated will have to be identified, the demands 
of the jobs will need to be identified by producing detailed descriptions of what 
they involve, the Tribunal will appoint one or more independent experts to devise 
a JES to evaluate the roles, they will evaluate the roles, and the Tribunal will 
determine whether the claimants’ jobs are of equal value issue following a 
hearing. The Tribunal rules are contained in subordinate legislation, the 
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 
(“the Rules”). Special rules, applicable only to EV cases, are contained in 
schedule 3. A full copy of the Rules is available on the government website: 
http://www.leaislation.aov.uk/uksi/2013/1237/contents/made.
23. The male claimants' claims have been stayed. The comparability issue has not 
yet been case managed.
24. As at the date of the order for the reference, there is a real risk that the United 
Kingdom will exit the EU on 31 October 2019 and that from this date UK courts 
and tribunals will lose the power to refer questions to this Court under art. 267 
TFEU.
LEGAL FRAMEWORK
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National Legislation
25. The domestic legislation is the Equality Act 2010.
26. S.66, which is concerned with sex discrimination as regards contractual terms, 
provides as follows:
(1) If the terms of A's work do not (by whatever means) include a sex 
equality clause, they are to be treated as including one.
(2) A sex equality clause is a provision that has the following effect-
fa) if a term of A's is less favourable to A than a corresponding term of B's 
is to B, A's term is modified so as not to be less favourable;
(b) if A does not have a term which corresponds to a term of B's that 
benefits B, A's terms are modified so as to include such a term.
(3) Subsection (2) (a) applies to a term of A's relating to membership of or 
rights under an occupational pension scheme only in so far as a sex equality 
rule would have effect in relation to the term.
4) In the case of work within section 65(1) (b), a reference in subsection (2) 
above to a term includes a reference to such terms (if any) as have not been 
determined by the rating of the work (as well as those that have).
27. “Equal work” is defined by s.65 as follows:
(1) For the purposes of this Chapter, A's work is equal to that of B if it is—
(a) like B's work
(b) rated as equivalent to B's work, or
(c) of equal value to B's work.
(2) A's work is like B's work if—
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(a) A's work and B's work are the same or broadly similar, and
(b) such differences as there are between their work are not of practical 
importance in relation to the terms of their work.
(3) So on a comparison of one person's work with another's for the 
purposes of subsection (2), it is necessary to have regard to—
(a) the frequency with which differences between their work occur in 
practice, and
(b) the nature and extent of the differences.
(4) A's work is rated as equivalent to B's work if a job evaluation study- 
fa) gives an equal value to A's job and B's job in terms of the demands 
made on a worker, or
(b) would give an equal value to A's job and B's job in those terms were 
the evaluation not made on a sex-specific system.
(5) A system is sex-specific if, for the purposes of one or more of the 
demands made on a worker, it sets values for men different from those it sets 
for women.
(6) A's work is of equal value to B's work if it is—
(a) neither like B's work nor rated as equivalent to B's work, but
(b) nevertheless equal to B's work in terms of the demands made on A by 
reference to factors such as effort, skill and decision-making.
28. The domestic provisions as to comparability are contained in s.79, as follows:
(1) This section applies for the purposes of this Chapter.
(2) If A is employed, Bis a comparator if subsection (3) or (4) applies.
(3) This subsection applies if—
11/57528705J3 9
(a) B is employed by A's employer or by an associate of A's employer, and
(b) A and B work at the same establishment.
(4) This subsection applies if—
(a) B is employed by A's employer or an associate of A's employer,
(b) B works at an establishment other than the one at which A works, and
(c) common terms apply at the establishments (either generally or as 
between A and B).
(5) If A holds a personal or public office, Bis a comparator if—
(a) B holds a personal or public office, and
(b) the person responsible for paying A is also responsible for paying B.
(6) If A is a relevant member of the House of Commons staff, B is a 
comparator if—
(a) B is employed by the person who is A's employer under subsection (6) 
of section 195 of the Employment Rights Act 1996, or
(b) if subsection (7) of that section applies in A's case, B is employed by 
the person who is A's employer under that subsection.
(7) If A is a relevant member of the House of Lords staff, Bis a comparator 
if B is also a relevant member of the House of Lords staff.
(8) Section 42 does not apply to this Chapter; accordingly, for the purposes 
of this Chapter only, holding the office of constable is to be treated as holding 
a personal office.
(9) For the purposes of this section, employers are associated if—
(a) one is a company of which the other (directly or indirectly) has control, 
or
(b) both are companies of which a third person (directly or indirectly) has 
control.
11/57528705,3 10
National Case Law on Section 79
29. The interpretation of section 79 of the Equality Act 2010 was recently 
considered by the Court of Appeal in Asda Stores Ltd v Brierley [2019] 2 CMLR 
18, [2019] IRLR 335. Underhill LJ (with whom Lord Sales and Peter Jackson 
LJ agreed) explained (in paragraphs 63 to 80) the operation of section 79(4). 
Asda Stores Ltd has appealed to the Supreme Court against the decision of 
the Court of Appeal. Permission to appeal has been granted but a hearing 
date for the appeal has not yet been set.
30. While the Claimant’s case is that they fall within section 79(4) of the Equality 
Act 2010, the Respondent disputes this. Accordingly, the Claimants rely, in 
addition, on Article 157 of the TFEU.
Article 157 and Decisions of the European Court
31 .The EU legislation is art. 157 TFEU, which provides as follows:
1. 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.
2. For the purpose of this Article, 'pay' means the ordinary basic or 
minimum wage or salary and any other consideration, whether in cash or in 
kind, which the worker receives directly or indirectly, in respect of his 
employment, from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the 
basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.
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3. The European Parliament and the Council, acting in accordance with 
the ordinary legislative procedure, and after consulting the Economic and 
Social Committee, shall adopt measures to ensure the application of the 
principle of equal opportunities and equal treatment of men and women in 
matters of employment and occupation, including the principle of equal pay 
for equal work or work of equal value.
4. With a view to ensuring full equality in practice between men and women 
in working life, the principle of equal treatment shall not prevent any Member 
State from maintaining or adopting measures providing for specific 
advantages in order to make it easier for the underrepresented sex to pursue 
a vocational activity or to prevent or compensate for disadvantages in 
professional careers.
32. In Lawrence v Regent Office Care Ltd (Case C-320-00) [2003] ICR 1092, the 
ECJ held that, in considering whether a claimant was entitled to compare 
herself with a comparator, the focus should be on whether there was a single 
source for the terms and conditions of employment, so that there was a body 
responsible for the inequality and which could restore equal treatment: see 
paragraphs 15 to 18. The ECJ followed the same approach in Allonby v 
Accrington & Rossendale College (Case C-256/01) [2004] ICR 1327, at 
paragraphs 45 to 46.
National Case Law on Direct Effect of Article 157
33. In paragraphs 114 to 116 of Asda Stores Limited v Brierley, Underhill LJ 
stated:
“(B) Direct Effect
114. It is of course well-established that article 157 of the TFEU and its 
predecessors, articles 119 and 141, afford employees a directly 
enforceable right to equal pay in cases where their comparators are doing
11/57528705,3 12
the same or similar work or work which has been rated as equivalent: that 
has been clear since Defrenne. But the authorities do not establish 
definitively whether the same is true in a case where the claimant's work 
is different from the comparator's and has not been rated as equivalent 
but where she claims that it is of equal value. There is a question as to 
the effect of the distinction articulated at para. 18 of the judgment in 
Defrenne between "discrimination which may be identified solely with the 
aid of the criteria based on equal work and equal pay referred to by 
[article 119]", in respect of which the article has direct effect, and 
"discrimination which can only be identified by reference to more explicit 
implementing provisions of a community or national character", in respect 
of which it does not: some authorities, both domestic and EU, appear to 
say that equal value claims fall into the latter category. The authorities, 
and the arguments both ways, are carefully and lucidly reviewed by Kerr 
J at paras. 13-35 of his judgment in the EAT. He regarded the issue as 
difficult and held (at para. 16) that the point was not acte clair, observing 
(at para. 36) that he would have referred it to the CJEU if the parties had 
asked him to do so. Since they did not, however, he held (at para. 37) 
that the better view was that article 157 does have direct effect in an 
equal value case. That conclusion is in line with Lady Hale's obiter view 
in North though Kerr J does not in fact rely on it.
115. It is not necessary for us to decide this issue in order to determine 
the appeal, and on balance I prefer not to do so. If the point were in truth 
determinative my provisional view is that the right course would be to 
refer it to the CJEU: we are not bound to do so, since we are not the final 
court, but I agree with Kerr J that it is hard to say that the issue is acte 
clair, and it would simply cause delay to leave it to the Supreme Court to 
refer. But it would not be right to make a reference where the point is not 
determinative; and it will achieve little of value for us to embark on a 
further elaborate analysis with a view to deciding the point at this level 
where only a reference will achieve certainty.
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116. Ido not think that our declining to pick up this particular baton will 
cause any practical problems for tribunals. Although it is possible to 
conceive of cases where the issue will be crucial - essentially, where the 
requirements of section 79 (4) (c), even as I have construed it, are not 
satisfied on the facts of the particular case - it remains to be seen 
whether such cases arise in practice; and if they do the issue of direct 
effect is determined at EAT level by Kerr J's decision (and reinforced by 
Lady Hale's judgment in North). I am prepared to say, however, that 
despite the undoubted difficulties presented by some of the authorities, 
my provisional view at the end of the argument was that Kerr J's 
conclusion was right.”
34. In the Employment Appeal Tribunal (EAT) in Asda Stores Limited v Brierley 
[2018) ICR 384 Kerr J concluded (in paragraph 36) that “[t]he better view is 
that article 157 TFEU is directly effective in this case, and the claimants can 
rely on it." However he acknowledged that the “analysis is not perfect”, that 
this issue was not “act eclair” and that he “would willingly have referred the 
point to the CJEU if the parties had enthusiastically invited me to do so.”
35. Accordingly the current position is that:
35.1. The EAT has held that Article 157 of the TFEU is directly effective in equal 
value cases. This conclusion is binding on Employment Tribunals, but 
not on any more senior court or Tribunal in the United Kingdom.
35.2. However, both the EAT and Court of Appeal have stated that this issue 
is not straightforward and would be suitable for a reference to the CJEU.
UK Withdrawal from the European Union
36.S.6(1) of the European Union (Withdrawal) Act 2018 provides, on a date to be 
appointed, as follows:
(1) A court or tribunal—
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(a) is not bound by any principles laid down, or any decisions made, on or 
after exit day by the European Court, and
(b) cannot refer any matter to the European Court on or after exit day.
37. The EU Withdrawal Agreement provides by art. 86 as follows:
Pending cases before the Court of Justice of the European Union
1. The Court of Justice of the European Union shall continue to have 
jurisdiction in any proceedings brought by or against the United Kingdom 
before the end of the transition period. Such jurisdiction shall apply to all 
stages of proceedings, including appeal proceedings before the Court of 
Justice and proceedings before the General Court where the case is referred 
back to the General Court.
2. The Court of Justice of the European Union shall continue to have 
jurisdiction to give preliminary rulings on requests from courts and tribunals 
of the United Kingdom made before the end of the transition period.
REASONS FOR THE REFERENCE TO THE EUROPEAN COURT
38. A reference is necessary in this case because there is uncertainty as to 
whether Article 157 has direct effect in equal value cases. While this issue will 
only arise in cases where claimants are unable to rely on section 79 of the 
Equality Act 2010, there are currently tens of thousands of equal pay claims in 
the United Kingdom in the supermarket sector where:
38.1. Claimants and comparators are employed by the same employer 
but at different establishments;
38.2. The employers are relying on the argument that the claimants and 
comparators do not fall within section 79(4) of the Equality Act 2010;
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38.3. The claimants are relying, in the alternative to section 79(4) of the 
Equality Act 2010, on the direct effect of Article 157; and
38.4. UK courts and Tribunals will lose the right to refer questions to the 
CJEU on the date that the UK leaves the European Union.
Employment Judge Manley
Watford Employment Tribunal
Dated
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