J Abbey & Ors v Tesco Stores Limited & Anor

An Employment Tribunal has a broad discretion to case manage large, complex multiple claims under the overriding objective. A stay of claims pending sample cases may properly leave stayed claimants as interested observers. The Tribunal must balance their interests against the proportionate and efficient progress of the active claims.

The Tribunal need not require responses to every stayed claim where this would undermine the purpose of the stay and the potential prejudice is limited. Nor must it give stayed claimants all party-to-party communications. Providing documents placed before the Tribunal for hearings may be a proportionate means of enabling meaningful observation while protecting the effective conduct of the litigation.

This appeal arose from long-running equal pay proceedings against Tesco involving more than 47,000 claimants. The appellants, represented by KP Law, had claims automatically stayed under a consent order pending determination of sample claims within the Element multiple.

The Employment Judge refused to lift the stay solely to require Tesco to file responses to the KP claims. He also declined to allow KP representatives to remain at the balance of a private preliminary hearing. Subsequently, he permitted KP to observe future private hearings and receive documents put before the Tribunal, but clarified that this did not extend to all communications between the parties.

The central issue was whether those case management decisions disclosed an error of law, a failure to consider relevant matters, or perversity.

1. Both appeals were dismissed. The Employment Judge had permissibly exercised the wide discretion available when case managing large-scale, complex, multi-party litigation.

2. A stay pending determination of sample claims is a practical and established method of managing equal pay litigation. It necessarily places stayed claimants in the position of interested observers rather than active participants. The Tribunal must strike a fair and just balance between protecting those claimants’ interests and allowing the active claims to progress, consistently with rule 2 of the Employment Tribunal (Constitution and Rules of Procedure Regulations) 2013.

3. The Tribunal had considered the scale, value and likely duration of the litigation, the KP claimants’ access to existing pleadings and orders, and their different position from claimants represented in the sample claims. It was entitled to assess the possible prejudice from the absence of individual responses as very limited. Requiring Tesco to file responses to thousands of stayed claims would be inconsistent with the stay’s purpose of avoiding unnecessary time and cost. The refusal to lift the stay in that limited respect therefore disclosed no error of principle or perversity.

4. The complaints about exclusion from the remainder of the private hearing were largely academic after the later attendance and documents orders. In any event, the hearing was properly held in private. The Tribunal could limit attendance to the application then listed and require a properly identified application before deciding future arrangements.

5. The later documents order, properly construed, entitled KP to documents put before the Tribunal for private hearings, not all party-to-party correspondence. The clarification did not require a reconsideration of the order’s basis. Short reasons were permissible. The Tribunal had considered the parties’ correspondence and could conclude that contemporaneous access to all communications was unnecessary for lawyers representing only stayed claimants. The restricted disclosure was a proportionate protection of their interests and avoided burdens arising from confidentiality, privilege, redaction and potential disputes.

• Employment Appeal Tribunal: Dismissed both appeals from the Employment Tribunal’s case management orders: [2024] EAT 76.
• Employment Tribunal, Watford: Refused a partial lifting of the stay on 29 March 2022, and later allowed observation of private hearings and disclosure of documents put before the Tribunal, as clarified on 18 August 2022.