Tesco Stores Limited v K Element & Ors

At the stage 2 hearing under the Employment Tribunals (Equal Value) Rules of Procedure 2013, the starting point for identifying an employee’s work is what the employee does in practice. The Tribunal must determine the relevant disputed facts and proceed on agreed facts. It is arguable that an approach which treats the employer’s description of the job, or training material, as determinative gives those sources excessive weight.

Whether any such legal misdirection materially affected the fact-finding exercise is ordinarily for determination at the full appeal hearing.

Tesco faced more than 47,000 equal pay claims, commenced in 2018. This appeal concerned the stage 2 equal value process in the first tranche, involving sample shop-worker claimants and warehouse comparators.

The Employment Tribunal initially declined to determine the relevant facts and ordered revised material. It later determined the stage 2 issues, principally by reference to its second judgment sent on 5 July 2024. Tesco appealed both the earlier decisions and the stage 2 judgment.

The preliminary hearing concerned whether the remaining grounds of appeal, including grounds concerning the Tribunal’s legal approach, evidence and particular factual findings, were reasonably arguable.

1. The grounds of appeal were permitted to proceed. The EAT held that the general grounds and the identified specific grounds were reasonably arguable. The full appeal was to be listed and prepared on an expedited basis.

2. It was arguable that the Employment Tribunal had misdirected itself about its stage 2 function under Rule 6 of the Employment Tribunals (Equal Value) Rules of Procedure 2013. The starting point in considering an employee’s work is what is done in practice. Work is not necessarily confined to practical activity, but it was arguable that the Tribunal had instead adopted an impermissibly different approach.

3. It was also arguable that training documents were only one of several potential sources of evidence. A direction that they should be the primary focus might give them excessive importance. It was further arguable that fact-finding should concern the work done by individual job holders, rather than generic jobs.

4. Rule 6 was arguably apt to require acceptance of agreed relevant facts and resolution of relevant disputed facts. The EAT left open whether any legal misdirection materially affected the findings or whether the findings nevertheless enabled the equal-value question to be answered. Those issues required a full hearing.

5. The challenges concerning excluded data evidence, training, time pressures, relationships and the specified job-fact issues were also sufficiently arguable. Several might ultimately face the high threshold applicable to perversity challenges, but were confined to the particulars pleaded.

• Employment Appeal Tribunal: at a preliminary hearing, held that Tesco’s remaining challenges to the Employment Tribunal’s first, case-management and stage 2 judgments were reasonably arguable and directed preparation for a full appeal.
• Employment Tribunal: the Tribunal’s first judgment, sent on 12 July 2023, declined to determine the relevant facts as then presented. Its stage 2 judgment was sent on 5 July 2024.