The Supreme Court has blocked Tesco’s final attempt at appealing a critical procedural ruling in a multi-billion-pound court battle over equal pay. Legal firms Harcus Parker and Leigh Day brought the claim in 2018 on behalf of 16,000 shop workers who allege that they are underpaid compared to distribution workers.

Tesco’s shop workers are predominantly female whereas Tesco warehouse workers are predominantly male. The disparity in pay is as much as £5.50 an hour.

Tesco had disputed the Employment Tribunal’s finding in May that Tesco’s training materials could properly be treated as determinative of what staff were required to do unless there was clear evidence to the contrary. Tesco had argued that these were not a reliable determinant of the work and instead wanted individual claimants to prove their precise day-to-day duties.

The case can now go ahead and is likely to be sped up by the removal of this major procedural barrier.

Tesco’s argument is that the unequal pay between shop and warehouse staff is not related to gender, but is legally justified by distinct operational skills, recruitment pressures and market rates. However, Jo Mackie, employment partner at national law firm Michelmores, said Tesco’s reliance on market-rate arguments strikes at the core issue in the case.

“Tesco had to try to rely on (amongst other things) a market rate argument that women shop workers were generally paid less than men for various reasons and so they were simply following what the rest of the market had done for decades,” Mackie said.

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