Tesco Stores Ltd v K Element & Ors

An employment tribunal may order staged disclosure in complex equal pay proceedings. It may require an initial standard-disclosure exercise, followed by focused issues-based disclosure after the issues have been refined. A standard disclosure order need not prescribe every step of a reasonable search; the disclosing party and its solicitors must make a professional and proportionate judgment, subject to later supervision.

A tribunal may also direct that material-factor-defence issues be heard before final equal-value issues where that course promotes timely resolution. In large group litigation, avoiding unreasonable delay may justify preparation and determination of issues out of their logical sequence, provided there is no real unfairness.

A claimant’s response alleging that a market-forces defence is tainted by sex discrimination need only be particularised after the employer has identified the market relied on.

In long-running group equal pay litigation brought principally by female shop-based employees, Tesco appealed case-management orders made by the Watford Employment Tribunal. The orders required initial standard disclosure on Tesco’s material factor defences, later issues-based disclosure, and a hearing of those defences in September and October 2025 before the final equal-value hearing.

Tesco contended that the disclosure regime was duplicative, insufficiently specified and unrealistically timed. It also challenged the sequencing of the material-factor hearing and the tribunal’s refusal to require the claimants immediately to plead detailed allegations of direct and indirect sex discrimination in answer to any material factor defence.

The central issues were the permissible scope of staged disclosure, the tribunal’s discretion over the order of issues, and the timing of particulars responding to a material-factor defence under the Equality Act 2010.

1. Appeal dismissed on grounds 1 and 2. The tribunal was entitled to order staged disclosure. An initial standard-disclosure exercise could identify documents central to the material-factor-defence issues and assist the later refinement of those issues. Focused issues-based disclosure could then fill gaps or reduce unnecessary searches. The combination was pragmatic, proportionate and within the tribunal’s case-management discretion.

2. The standard disclosure order did not need to specify every search step. A reasonable search is initially a matter for the professional judgment of the disclosing party and its solicitors. The tribunal remained the ultimate arbiter if the adequacy of the search was challenged. The later issues-based process, the existence of which affected what was reasonable at the preliminary stage, provided a means of addressing any shortfall.

3. Ground 3 was refused permission to proceed. The decision to hear material-factor-defence issues before the final equal-value hearing was neither perverse nor legally flawed. Cost and delay were matters for the tribunal to balance. In group equal pay litigation, a material-factor defence may properly be tried on the assumption that the jobs are of equal value where that is needed to avoid unreasonable delay.

4. Ground 4 was refused permission to proceed. The claimants would have to provide factual particulars supporting any assertion that a market relied on by Tesco was tainted by discrimination. However, that obligation arose after Tesco had particularised the market or markets said to explain the pay difference. Such a contention was a reply to a particularised material-factor defence, not a matter that had to be pleaded in advance. Order 6 adequately required the claimants to respond to Tesco’s case.

5. The stay application was dismissed as academic. The EAT added that appellate intervention in case-management decisions in substantial multi-claimant litigation should be especially slow, particularly where the managing tribunal has detailed knowledge of the proceedings. The need for expedition does not permit real unfairness, but it may require parties to prepare issues before their final scope or deadlines are known.

• Employment Appeal Tribunal: dismissed Tesco’s appeal against the disclosure orders and directed that grounds 3 and 4 would not proceed to a full hearing: [2024] EAT 83.
• Employment Tribunal, Watford: made case-management orders dated 21 March 2024 following a hearing on 13 March 2024, including staged disclosure directions and a material-factor-defence hearing before the final equal-value hearing.