Tesco Stores Limited v K Element & Ors

An appeal must challenge identified determinations in the judgment below. In an equal-value case, an appeal from a stage 2 hearing must identify the particular factual findings, or linked groups of findings, said to be affected by an error of law.

The Employment Appeal Tribunal has a broad discretion over amendments. It must apply the overriding objective and weigh promptness, clarity, delay, prejudice, merits and efficient use of resources. A late and vague amendment which would jeopardise an expedited hearing, create uncertainty on remission and risk further litigation may properly be refused, even if refusal causes prejudice to the applicant.

In long-running equal-pay litigation involving more than 50,000 claimants, Tesco sought to amend three linked appeals arising from a stage 2 equal-value hearing. The Employment Tribunal had determined disputed facts concerning sample claimants and comparators for the independent expert’s report.

Tesco proposed a new paragraph referring generally to 146 passages as further factual determinations, facts, examples and matters relevant to existing grounds of appeal. It also proposed purported clarifications that findings concerning one comparator applied to others where the Tribunal had made common findings.

The central issue was whether the proposed amendments should be permitted shortly before an expedited full appeal hearing.

1. The application was allowed only in part. Permission to add the vague schedule-based amendment was refused. Permission to add the comparator-related clarifications was granted, subject to the respondents’ entitlement at the full hearing to contend that they were not genuine clarifications.

2. Under Rule 6 of the Employment Tribunals (Equal Value) Rules of Procedure 2013, a stage 2 equal-value judgment determines disputed facts relating to the equal-value question. An appeal under section 21(1) of the Employment Tribunals 1996 must therefore challenge specific determinations in that judgment. Remission must also identify with clarity what is to be redetermined.

3. Applying Khudados v Leggate, the discretion to permit amendment is broad and must be exercised in accordance with the overriding objective. Its listed considerations are not a checklist. Relevant factors included Tesco’s substantial delay, its available legal resources, the lack of particularity in the proposed amendment, the risk to the June hearing, prejudice to claimants, and the risk of further disputes and appeals following an unclear remission.

4. The proposed paragraph 52 did not identify the findings challenged or explain how the asserted errors of law affected them. It would create an impermissibly unspecific appeal and remission. Although refusal could prejudice Tesco, that prejudice was substantially self-created and did not outweigh prejudice to the claimants and the administration of justice.

• Employment Appeal Tribunal: Tesco applied to amend its notices of appeal from the stage 2 equal-value judgment sent to the parties on 5 July 2024. The Tribunal refused the principal amendment and permitted limited clarificatory amendments.
• Employment Tribunal: At the stage 2 equal-value hearing, the Tribunal determined disputed facts concerning the work of six sample claimants and eight comparators. No citation is stated in the judgment.