Tesco Stores Limited v K Element & Ors

An Employment Tribunal reconsideration application must follow the mandatory sequence in rule 70 of the Employment Tribunal Rules 2024. At the initial sift, the Employment Judge must either refuse the application because there is no reasonable prospect that the judgment will be varied or revoked, or permit it to proceed. A decision permitting it to proceed requires notice to the other parties and completion of the later mandatory stages.

In an equal-value claim, stage 2 must finally determine the facts relating to the question. Fact-finding cannot be deferred to the final hearing. Where the Tribunal considered an issue capable of further consideration but purported to refuse reconsideration, the proper course was to substitute a permission-to-proceed decision and remit the matter.

These were cross-appeals from Employment Judge Hyams’s second reconsideration decision concerning stage 2 equal-value findings in long-running equal-pay proceedings. The Tribunal had made 31 determinations, but only four remained disputed.

The appeals concerned the reconsideration procedure and whether issues about physical effort, manual handling, evaluative language in training videos, and risks arising from errors should be reconsidered. The central issue was whether the Tribunal had correctly applied the mandatory reconsideration process and could defer further factual findings until the final hearing.

1. The appeals and cross-appeals were allowed to the limited extent identified. The EAT substituted permission-to-proceed decisions for the challenged prospects dismissals, upheld the existing permission-to-proceed decision concerning manual handling, and remitted all four matters to the same Employment Tribunal.

2. Rule 70 of the Employment Tribunal Rules 2024 creates a mandatory and sequential reconsideration process. At the initial stage, ordinarily before the other parties have made representations, the Employment Judge has a binary choice: refuse the application because there is no reasonable prospect that the judgment will be varied or revoked, or permit it to proceed. A permission-to-proceed decision is only a preliminary sift. It does not decide that the application has merit and does not bind the Tribunal’s later determination.

3. Once permission is granted, the Tribunal must issue the notice required by rule 70(3), consider representations, decide whether a hearing is necessary and determine panel composition where appropriate. The EAT declined to bypass those stages, since doing so would improperly turn the EAT into an alternative forum for matters to be decided by the Employment Tribunal.

4. Under the Employment Tribunals (Equal Value) Rules of Procedure 2013, stage 2 must finally establish the facts relating to the equal-value question. Those facts are the only facts on which the Tribunal may rely at the final hearing. Accordingly, an issue which merits further factual consideration cannot be postponed until that hearing.

5. The Tribunal had erred by dismissing reconsideration applications while indicating that the disputed matters could later be considered, or by allowing further consideration but deferring it to the final hearing. The issues concerning physical effort, manual handling, Mrs Worthington, evaluative language in training videos, and the consequences of errors were sufficiently arguable to proceed through the mandatory process. The claimants remained entitled to contend that finality precluded new evidence or submissions.

• Employment Appeal Tribunal: Allowed the appeals and cross-appeals to the limited extent identified; substituted or upheld permission-to-proceed decisions and remitted the matters for completion of the mandatory reconsideration process.
• Employment Tribunal: Employment Judge Hyams’s Second Stage 2 Equal Value Reconsideration Decision, sent on 28 July 2025, had dismissed most reconsideration grounds for lack of reasonable prospects while making determinations concerning others.