Debate Magazine

This Hardly Makes Sense

Posted on the 07 June 2021 by Markwadsworth @Mark_Wadsworth

From the BBC:
Thousands of current and former Tesco workers have won a legal argument in their fight for equal pay. The European Court of Justice has ruled that an EU law could be relied on in making equal pay claims against their employer.
Tesco workers, mostly women, have argued that they failed to receive equal pay for work of equal value with colleagues in its distribution centres who are mostly men. They said this breached EU and UK laws.

1. Why is EU law relevant? It could only be relevant for pay periods up to 31 January 2020, and I'm not sure whether courts would ever retrospectively give people pay rises.

2. A sane and rational person would assume that distribution center workers get paid a bit more (it appears to be average £13/hour rather than average £10/hour for shop workers) because the work is physically or mentally harder; requires more specialised skill and experience; involves less flexible shifts, more early/late shifts and night shifts; involves a longer commute etc.

3. Clearly, if Tesco paid male shop workers more than female shop workers (or male distribution center workers more than female distribution center workers), this would be wrong, that does not appear to be the case. Similarly, if Tesco had a blanket policy of not employing women in their distribution centres, that would also be wrong, but again, that does not appear to be the case.
4. What if Tesco employed a similar mix of men and women in both shops and in distribution centres? Would anybody be able to allege indirect discrimination then? Methinks not.

Tesco, the UK's biggest retailer, and law firm Leigh Day, acting on behalf of the workers, sought clarification from the Court of Justice of the European Union. They asked the court to rule on a specific aspect of European law... Under EU law, a worker can be compared with somebody working in a different establishment if a "single source" has the power to correct the difference in pay...
Kiran Dauka, a partner in the employment team at Leigh Day, said: "This judgment reinforces the Supreme Court's ruling that the roles of shop floor workers can be compared to those of their colleagues in distribution centres for the purposes of equal pay."

5. That sounds like a stupid interpretation of a stupid rule to me.

Pam Jenkins, who works at Tesco, said: "To get a judgment confirming shop floor workers can use an easier legal test to compare their jobs to male colleagues in distribution is uplifting. I've always been proud to work at Tesco, but knowing that male colleagues working in distribution centres are being paid more is demoralising. I'm hopeful that Tesco will recognize the contribution shop floor workers make to the business and reflect that in our pay."

6. Be careful what you wish for - the most likely outcome here is that Tesco will employ even fewer people to work on the tills and have more of the self-checkouts. I personally much prefer being served by a human being, but at my local Tesco, they only staff about three out of about ten tills, so the queues are awful and I grudgingly use the self-checkouts (knowing that however indirectly, I am putting some poor sod out of work).

The legal test for comparability is only the first of three stages within Asda's overall pay claim, which is expected to take several years to conclude. Leigh Day is also handing similar equal pay claims against Sainsbury's, Tesco, Morrisons and Co-op, which are not as far advanced.

7. This bit makes sense, the whole thing is a wild goose chase and a gravy train for the lawyers. Judges are always happy to drag things out on their behalf, in case they ever want to go back into practrice.

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