Tesco Stores Limited v K Element & Ors

In a stage 2 equal-value hearing under the Equality Act 2010, “work” is the work required by the wage/work bargain. The analysis is not confined to a worker’s minute-by-minute performance. Where jobs are highly regulated and standardised, detailed employer training materials may provide the best objective starting point for determining disputed facts, although cogent evidence may displace them. Exact findings about training received by each worker are not necessarily required where the context supports reasonable factual assumptions. The tribunal must distinguish agreed facts from disputed facts and cannot redetermine or criticise facts agreed by the parties under the stage 2 rules. On appeal, each challenged factual determination must be identified unless a structural error infects the exercise.

These were two appeals by Tesco from decisions of the Employment Appeal Tribunal in longstanding equal-pay claims brought by store employees against distribution-centre comparators. Following a 36-day stage 2 equal-value hearing, the Employment Tribunal declined to determine the disputes as presented and redirected the inquiry towards Tesco’s detailed training materials. It later produced extensive factual determinations based principally on those materials.

The EAT dismissed the first appeal and allowed parts of the second, making directions for further work: [2025] EAT 45; [2025] EAT 112. The central issues before the Court of Appeal were the meaning of “work” under sections 64 and 65 of the Equality Act 2010, the scope of an appeal against stage 2 factual determinations, the use of training documents, and whether the Tribunal could depart from agreed facts.

Disposition. The appeal against EAT (1) was dismissed. The appeal against EAT (2) was allowed only on ground 3, concerning agreed facts, and was dismissed on the remaining grounds. The court’s decision was unanimous.

1. Scope of appeal. A stage 2 hearing produces separate factual determinations rather than a single decision on liability. Unless a structural error affects the exercise as a whole, an error in one determination does not undermine other determinations. A party challenging several factual determinations must identify each one in the notice of appeal. The EAT was therefore entitled, and obliged, to confine the appeal to the determinations specifically identified. This followed the approach in Jafri v Lincoln College [2014] EWCA Civ 449.
2. Meaning of work. The statutory concept reflects the wage/work bargain and the requirements of the job. It is a false dichotomy to contrast what the contract requires with what the employee does in practice. Practical performance may matter where a contractual obligation is merely notional, or where additional conduct has been approved or knowingly tolerated by the employer. An unlawful instruction could not form part of the employee’s work.
3. Training materials. In the highly regulated and prescriptive setting of these jobs, the Employment Tribunal was entitled to treat Tesco’s training materials as the most objective starting point for determining the work required. They were not treated as conclusive. Evidence about context, frequency and departures from the materials remained relevant. The Tribunal was also entitled to assume that mandatory training had been completed and that other required training had generally been received, so exact findings about each worker’s training were not essential.
4. Agreed facts. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 formed a procedural code. Rule 6(1)(a) authorised findings only on facts on which the parties could not agree. The Tribunal had no power to redetermine agreed facts or cast doubt on them. The availability of reconsideration did not cure that error. The point was remitted consistently with the Court’s reasoning.
5. Further stage 2 work. Rule 12(2) permitted more than one stage 2 hearing. The difficulty of reconciling the training materials with the job descriptions did not itself establish an error of law, particularly as the EAT had shown that the exercise could be completed.

1. Court of Appeal (Civil Division). The appeals were decided on 12 May 2026 under [2026] EWCA Civ 580. The appeal against EAT (1) was dismissed. The appeal against EAT (2) was allowed only on the agreed-facts ground.
2. Employment Appeal Tribunal. EAT (1), arising from the Tribunal’s first judgment and case-management orders, was dismissed: [2025] EAT 45. EAT (2), arising from the Tribunal’s later judgment, was allowed in part and followed by disposal directions: [2025] EAT 112.