Tesco Stores Limited v K Element & Ors

At a Stage 2 equal-value hearing, work means what the employer requires in practice, read with what the individual jobholder actually does. Detailed training materials may, on the evidence, be an important and rebuttable source of facts about that work. They cannot displace relevant contrary evidence or convert the inquiry into one about generic jobs.

The tribunal must determine relevant disputed facts for the later evaluation. It may manage disproportionate or trivial disputes, but it must record relevant facts, including obvious facts. It must not exclude facts by asking what a reasonable employer ought to require, or by prematurely evaluating the comparative demands or value of the work.

More than 55,000 mainly female store-based employees brought equal-value claims against Tesco, comparing their work with predominantly male distribution-centre employees. This appeal concerned the Stage 2 fact-finding process for six sample claimants and eight comparators under Equality Act 2010 and the Employment Tribunals (Equal Value) Rules of Procedure 2013.

The Employment Tribunal issued judgments in July 2023 and July 2024, with a later reconsideration judgment. It treated detailed training materials as important evidence of the work required and made findings in narrative appendices. Tesco appealed the tribunal's legal approach, procedure, relevance decisions, and several particular findings concerning job demands and working conditions.

1. Appeal allowed in part. The Employment Tribunal correctly understood work for the purposes of section 65(6). The inquiry concerns what the employer requires in practice and what the individual jobholder actually does. The tribunal did not adopt an impermissible generic-job approach. Grounds A2G2 and A1G1 were dismissed.

2. The tribunal was entitled, on the particular evidence, to treat Tesco's detailed and prescriptive training materials as an important starting point for identifying the work required of the sample jobholders. Its approach was rebuttable: contrary oral or documentary evidence could prevail. It had not excluded such evidence in principle. Grounds A1G2 and A2G3 were dismissed.

3. Under rule 6, the tribunal determines disputed facts that are relevant to the equal-value question. It is not required to decide every fact that might possibly assist a later evaluation. The tribunal could manage trivial or disproportionate disputes, and could scrutinise agreed facts where there was reason to doubt them. Ground A1G8 was dismissed.

4. However, relevant facts must be stated. The tribunal erred insofar as it considered that an obvious relevant fact need not be recorded. Its narrative method also created practical difficulties, although incorporation of findings from other documents was not unlawful in principle. Ground A2G1 succeeded in part.

5. The tribunal made further errors by excluding or inadequately addressing facts through premature evaluation, or by reference to what a reasonable employer should do. Those errors affected productivity targets, comparative time pressure, risks and hazards, faulty equipment, time of day, aspects of physical effort, monitoring and the physical working environment, and mental arithmetic. Grounds A2G4, A1G6, A2G5, A2G6, A2G7, A2G9, A2G10 and A2G11 succeeded. Ground A2G8 succeeded in part.

6. Grounds A1G5 and A1G7 were dismissed, the latter insofar as it concerned the particular evidence about Mrs Worthington's workplace relationships. Disposal, including the format of findings for the independent experts, was reserved for a further hearing.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal's Stage 2 equal-value judgments of 12 July 2023 and 5 July 2024, and associated case-management decisions. The appeal was allowed in part.
• Employment Tribunal: The tribunal determined facts concerning six sample store claimants and eight distribution-centre comparators for a later equal-value assessment under Equality Act 2010.