K Element & Ors. v Tesco Stores Limited

A job evaluation study under Equality Act 2010, section 80(5), must evaluate jobs by reference to the demands made on workers under relevant headings. The statutory wording itself requires a genuine, sufficiently thorough and analytical study. It does not impose a separate requirement that the study be capable of impartial application.

Questions of sex discrimination or other unreliability arise under section 131(6) only where an employer relies on a study to defeat an equal-value claim. The statutory burden in section 136 shifts only after a prima facie case of the whole contravention has been established. A tribunal may nevertheless scrutinise evidence held exclusively by the employer when deciding a preliminary factual issue.

Approximately 10,000 mainly female, hourly paid store employees brought equal-pay claims against Tesco. They alleged that their work was rated as equivalent to predominantly male distribution-centre roles and, alternatively, was of equal value.

The rated-as-equivalent claim relied on Tesco’s 2014 Exercise, an informal and exploratory job-sizing exercise. The Employment Tribunal held that the burden under section 136 had shifted to Tesco, but that the exercise was not a job evaluation study and dismissed that part of the claims. The equal-value claims continued.

The claimants appealed the finding that the exercise was not a job evaluation study. Tesco challenged the Tribunal’s conclusion on the statutory burden of proof.

1. Appeal dismissed. The Tribunal was wrong to state that the statutory burden had shifted under section 136 of the Equality Act 2010. Section 136 operates only where the claimant has established a prima facie case on all elements of the alleged contravention. At this preliminary hearing, the existence of a qualifying job evaluation study was the sole issue and other necessary elements of the equal-pay claims remained disputed.
2. The error was immaterial. The claimants retained the burden of proving that the 2014 Exercise was a job evaluation study, but the Tribunal was entitled to scrutinise Tesco’s evidence closely. The information about the exercise was exclusively within Tesco’s knowledge. The Tribunal could make findings of primary fact, draw proper inferences, and decide the issue on the balance of probabilities without invoking the statutory reversal of burden.
3. Under section 80(5), a job evaluation study is a study undertaken to evaluate jobs by reference to the demands made on workers under headings such as effort, skill and decision-making. Bromley and ors v H & J Quick Ltd [1988] ICR 623 was binding. It supported the requirement for a thorough and analytical evaluation, but did not support treating “capable of impartial application” as an additional limb of the definition.
4. The distinct safeguards in section 131(6) apply only when an employer relies on a job evaluation study as a shield to an equal-value claim. At that stage the Tribunal must consider whether the evaluation was tainted by sex discrimination or otherwise unreliable. Those matters are not freestanding additional requirements for a study relied on by a claimant to establish rated-as-equivalent work.
5. The Tribunal’s factual findings nevertheless compelled the conclusion that the 2014 Exercise was not a study within section 80(5). Its factors omitted physical effort and physical skills despite their significance to the jobs assessed. It therefore did not evaluate the demands made on jobholders. Further, it remained an incomplete work in progress, with unresolved inconsistent scores and no final evaluation. Those findings independently supported the conclusion that it was not a job evaluation study.

• Employment Appeal Tribunal: Appeal dismissed: [2022] EAT 165.
• Employment Tribunal, Watford: At a preliminary hearing, held that the 2014 Exercise was not a job evaluation study under section 80(5) of the Equality Act 2010; dismissed the rated-as-equivalent claims while allowing the equal-value claims to continue.