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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Tesco Stores Ltd v Element & Ors [2025] EAT 43 (28 March 2025) URL: http://www.bailii.org/uk/cases/UKEAT/2025/43.html Cite as: [2025] EAT 43

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EMPLOYMENT APPEAL TRIBUNAL

		Building Fetter Lane, London, EC4A 1NL
		28 March 2025

HIS HONOUR JUDGE JAMES TAYLER

The Parties

1. I will refer to the appellant as Tesco and the respondents to the appeal as the Leigh Day claimants and the Harcus claimants or, when it is not necessary to differentiate, the claimants.

The proceedings

2. Tesco have applied to amend the Notice of Appeal in this long-running equal pay litigation. There are now more than 50,000 claimants. Some of the claims were brought as early as 2018.
3. These appeals arise out of the leadup to, and determinations made at, a stage 2 equal value hearing. The judgment made after the stage 2 equal value hearing was sent to the parties on 5 July 2024.
4. By a judgment sealed on 10 February 2025, after a Preliminary Hearing held on 27 November 2024, I set down the three linked appeals for hearing. That judgment should be read with this as it sets out the background and briefly explains why the grounds of appeal were permitted to proceed. I also expressed grave concern about the state of the litigation, particularly the delay and proliferation of factual issues. The full hearing is listed for two days on 18 and 19 June 2025.
5. At paragraph 21 of the judgment I stated:

21. Section 3.8 of the EAT Practice Direction requires generally that grounds of appeal should be "short and focussed" and "clearly assert errors of law". Sections 3.9 and 3.10 require that grounds of appeal which assert "perversity" or "procedural impropriety" must provide "full details". Section 3.10 includes under the heading "procedural impropriety", "any material procedural irregularity". That requires particularity of each dispute rather than the provision of "examples". In any event, I consider where it is asserted that an error of law resulted in erroneous factual determinations it is important that particularity of the errors are set out. Tesco has the resources to provide the required full details and is to be limited to the specific challenges advanced in the grounds of appeal, absent any successful application to amend.

6. I am informed that Tesco have appealed that determination to the Court of Appeal, where it is awaiting consideration for permission to appeal.
7. In the order allowing the appeals to proceed the claimants were required to serve answers to the appeals within 28 days of the seal date of the order "or, if in that period an application to amend a Notice of Appeal is made, within 14 days of the seal date of the Employment Appeal Tribunal Order determining that application".
8. On 4 March 2025, Tesco made an application to amend with proposed amended grounds of appeal attached.
9. Tesco seek to add paragraph 52:

FURTHER EXAMPLES

52. Further erroneous factual determinations, facts, examples and matters on which the Respondent relies are set out in the Schedule.

10. The Schedule sets out the ground of appeal (and in some cases the relevant paragraph number of the ground) and gives a reference to a paragraph or paragraphs numbers in the stage 2 equal value judgment such as "Appendix 1: paragraph 7, pages 32 – 33" and so on.
11. The amended grounds assert under the heading "POINT OF CLARIFICATION" at paragraphs 53 to 55 that various determinations of facts relating to one of the comparators were applied by the Employment Tribunal to all comparators and that the challenge set out in the grounds of appeal that refer to one comparator apply to all comparators where the Employment Tribunal made findings that were applicable to the others comparators.
12. The claimants object to the amendment.
13. The proceedings were governed by the Employment Tribunals (Equal Value) Rules of Procedure 2013 ("EV Rules") that require the Employment Tribunal to determine "the question" which is defined by Rule 1 EV Rules as "whether the claimant's work is of equal value to that of the comparator". The purpose of a stage 2 equal value hearing is set out in Rule 6 EV Rules:

6.—(1) At a stage 2 equal value hearing the Tribunal shall—

(a) make a determination of facts on which the parties cannot agree which relate to the question and shall require the independent expert to prepare the report on the basis of facts which have (at any stage of the proceedings) either been agreed between the parties or determined by the Tribunal (referred to as "the facts relating to the question"); and

(b) fix a date for the final hearing.

(2) Subject to paragraph (3), the facts relating to the question shall, in relation to the question, be the only facts on which the Tribunal shall rely at the final hearing.

(3) At any stage of the proceedings the independent expert may make an application to the Tribunal for some or all of the facts relating to the question to be amended, supplemented or omitted. [emphasis added]

14. Thus, the end result of a stage 2 equal value hearing is a judgment which determines the facts on which the parties cannot agree. The judgment of the Employment Tribunal was in the following terms:

The tribunal's conclusions on the factual issues arising in relation to the question what was the work for the purposes of section 65(6) of the Equal Pay Act 2010 of the six sample claimants and the eight comparators about whose work the tribunal heard evidence at the stage 2 hearing which started on 6 March 2023 are stated in the eight schedules at pages 30-619 below.

15. The judgment is made up of the determinations of fact made in the eight schedules.
16. The power of the EAT to hear an appeal derives from section 21(1) Employment Tribunals 1996:

An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an employment tribunal under or by virtue of …

17. While the provision appears wide, the scope of appeal is limited to challenging specific determinations of the Employment Tribunal. In Harrod v Ministry of Defence [1981] ICR 8, May J held at 11E:

Upon a first reading of the words of section 136 (1), we can see that there might well be some force in the argument and that appeals under that subsection could lie to this appeal tribunal on points of law decided by an industrial tribunal in the course of proceedings before them, even though the appellant was not seeking to

challenge the ultimate result. …

Having considered the matter carefully, however, we have come to the conclusion that it is inherent in any appeal that the appellant must be seeking to set aside the decision, judgment or order, whatever it may have been of the tribunal below, and that it would need very clear words to entitle a party to any proceedings to appeal to an appellate tribunal on the basis that although the decision below was right, nevertheless the reasons for it were wrong. We have come to the conclusion that, notwithstanding that the wording of section 136(1) is arguably open to a wider construction, the proper view is that it comprehends only appeals which attempt to

disturb the order of the industrial tribunal.

18. Harrod was recently followed by HHJ Auerbach in Durey v South Central Ambulance Service NHS Foundation Trust EA-2023-000420-LA.
19. Prior to the Preliminary Hearing at which I permitted the appeals to proceed I required Tesco to state the order sought in respect of any grounds of the appeal succeed. This is required by the EAT Practice Direction 2024. In respect of most grounds of appeal Tesco stated "Remission to the same Tribunal for factual determinations". This emphasises that the appeal seeks to challenge specific findings of fact made at the stage 2 equal value hearing.
20. Section 11.15.1 of the EAT Practice Direction 2024 states that "The order remitting the case defines the jurisdiction of the Employment Tribunal on the remitted issue(s)". The EAT has repeatedly emphasised the importance of clarity in the terms of remission so that the Employment Tribunal is clear about what matters are to be redetermined and which are not within the scope of the remission: see for example Hamilton v LTRS Estates Ltd t/a Orwells UKEAT/0230/12 (21 February 2013, unreported) per Langstaff J.
21. Section 8.2 of the EAT Practice Direction 2024 states that any application to amend "should be made as soon as practicable". The approach adopted by the EAT to amendment applications was set out by HHJ Serota QC in Khudados v Leggate [2005] ICR 1013:

86 The appeal tribunal has a broad and generous discretion in applying its rules and practices so as to achieve the overriding objective of dealing with cases justly. We consider that, without wishing to set out an exhaustive list of considerations, the following are among the matters to be taken into account in determining whether or not an amendment should be allowed.

(a) Whether the applicant is in breach of the Rules or Practice Directions; in our opinion compliance with the requirement in para 2(6) of Practice Direction (Employment Appeal Tribunal: Procedure) 2002 [2003] ICR 122, that an application for permission to amend a notice of appeal be made as soon as the need for amendment is known, is of considerable importance. The requirement is not simply aspirational or an expression of hope. It does not set a target but is a requirement that must be met in order to advance the efficient and speedy dispatch and conduct of appeals.

(b) Any extension of time is an indulgence and the appeal tribunal is entitled to a full honest and acceptable explanation for any delay or failure to comply with the 1993 Rules or 2002 Practice Direction, as Mummery J observed in United Arab Emirates v Abdelghafar [1995] ICR 65.

(c) The extent to which, if any, the proposed amendment if allowed would cause any delay. Clearly proposed amendments that raise a crisp point of law closely related to existing grounds of appeal, or offering limited particulars that flesh out existing grounds, are much more likely to be allowed than wholly new grounds of perversity raising issues of complex fact and requiring consideration of a volume of documents, including witness statements and notes of evidence. Such amendments if allowed are bound to cause delay and extra expense. The latter class of amendments should be contrasted with the first. In many cases in the first category the party against whom permission to amend is sought will be in no worse position than if the amended grounds had been included in the original notice of appeal.

(d) Whether allowing the amendment will cause prejudice to the opposite party, and whether refusing the amendment will cause prejudice to the applicant by depriving him of fairly arguable grounds of appeal. We recognise that a party cannot be prejudiced in point of law simply because an argument is raised by way of amendment that saves what would otherwise be an unsustainable appeal. We also would suggest that the prejudice caused by refusing permission to amend to an applicant who seeks permission to amend by adding fairly arguable grounds, but who has failed in a significant way to comply with the Rules or Practice Direction, or who has delayed excessively, is likely to carry less weight than in the case of an applicant who has not delayed and has acted in accordance with the 1993 Rules and 2002 Practice Direction.

(e) In some cases it may be necessary to consider the merits of the proposed amendments, assuming they can be demonstrated to cross the appropriate thresholds we have mentioned earlier; that is to say as a general rule they must raise a point of law which gives the appeal a reasonable prospect of success at a full hearing.

(f) Regard must be had to the public interest in ensuring that business in the appeal tribunal is conducted expeditiously and that its resources are used efficiently. [emphasis added]

22. Deciding whether to permit an amendment is a classic example of the exercise of a judicial discretion. HHJ Serota specifically noted that there was a broad discretion to be exercised in accordance with the overriding objective. The specific factors he highlighted were stated to be "among the matters to be taken into account". I have not treated them as boxes to be ticked.
23. I have considered Tesco's application to amend and proposed amended grounds, the claimant's response, Tesco's letter of 14 March 2025 and the Leigh Day claimant's letter of 17 March 2025.
24. I will first consider application to amend to add paragraph 52. I will start with some general observations about the practicalities of the appeal and remission if any of the grounds of appeal are successful, which must be seen in the context of this litigation that is proceeding at a snail's pace, with a multitude of disputes about a vast number of factual issues, and repeated appeals.
25. Paragraph 52 refers to the Annex that lists 146 passages that are said to include "factual determinations, facts, examples and matters on which the Respondent relies". It is hard to imagine a more vaguely pleaded assertion. While the schedule sets out which ground (and in some cases sub-ground) the passages are said to be relevant to; the "factual determinations" and/or "facts" (it is not clear what if any distinction there is between the two); "examples" and "matters" (it is unclear what this term means) are not expanded upon. This raises very serious concerns about how the EAT would be able to understand the appeal or how, if the relevant grounds are successful, the Employment Tribunal would deal with remission. In its letter of 14 March 2025 Tesco rather glibly state:

The additional paragraph references included in the Application simply act as further illustrations of the alleged errors of law in the Employment Tribunal's second Stage 2 judgment. The Employment Appeal Tribunal does not need to consider each example in order to reach a determination on each alleged error of law. If the Appeals are successful, the process of considering each example would be a matter for the Employment Tribunal upon remission.

26. This suggests remission that would lack the required specificity and would risk yet further detailed disputes in the Employment Tribunal about which "factual determinations, facts, examples and matters" are to be redetermined. That is a recipe for further delay in the Employment Tribunal and for yet further appeals. Tesco's analysis also fails to take account of the particular nature of a judgment after a stage 2 equal value hearing in which a huge number of facts are determined. The challenge in the appeal must be to specific facts or groups of linked facts determined in the judgment.
27. I will now consider the specific points made by Tesco.
28. Tesco assert:

a. Although HHJ Tayler has, in substance, found that Tesco's understanding of what was required of it by the legislation and the Practice Direction was wrong, Tesco acted in good faith on the basis of its understanding of those provisions.

b. Tesco made the application with reasonable dispatch after it became clear that the application was required.

29. I am informed that Tesco have appealed my Order. Unless successfully appealed, my previous judgment is to be treated as setting out the existing law, that an appeal lies against a judgment, and that the judgment in a stage 2 equal value constitutes the findings made by the Employment Tribunal on the disputed facts.
30. The application to amend is made extremely late. The appeal was received by the EAT on 15 August 2024. The decision only to give examples of the asserted errors in the factual determinations that made up the judgment was in error. Tesco have considerable legal resources and could have stated clearly all the specific factual determinations are challenged in the appeal when it was submitted. Tesco submitted a 88-page reconsideration application to the Employment Tribunal on 18 October 2024. If necessary Tesco could have chosen to amend the appeal then. Tesco could have considered the matter when the Harcus claimants expressly raised the issue of Tesco only having given examples in its skeleton argument submitted on 13 November 2024. There were further opportunities to consider this issue when Tesco responded on 26 November 2024 to my requirement to set out the orders sought in respect of any grounds of appeal that may succeed and when my draft judgment was circulated on 27 January 2025. The application was not made until 4 March 2025. I do not consider that the application was made with anything like reasonable dispatch.
31. Tesco assert:

c. The application does not seek to introduce new alleged errors of law. Rather, it is concerned to provide further particulars in relation to existing alleged errors of law, including in particular to identify more fully how the existing alleged errors of law affected individual factual findings and issues.

32. While the application does not allege new errors of law, it is so vaguely expressed that I do not consider it can properly be said that it identifies fully "how the existing alleged errors of law affected individual factual findings and issues".
33. Tesco contend that:

d. The amendment will not cause material delay. It will not affect the listing of the full appeal hearing on 18 and 19 June 2025.

e. The amendment will not cause any, or any significant, prejudice to the Claimants. The amendments serve to identify the extent to which existing errors of law – which the EAT has found to be reasonably arguable – permeated the ET's decisions; they do not add new errors of law.

34. I expedited the Preliminary Hearing and the full hearing. It has been very challenging to find a date for the full hearing because of the limited judicial resources of the EAT. Were this listing to be lost it may well not be possible to find a new hearing date for many months.
35. I consider that it is likely that allowing the amendment would cause very considerably delay and concomitant prejudice to the claimants. I consider that the current listing on 18 and 19 June 2025 would be placed in jeopardy and there would be a great risk of further disputes in the Employment Tribunal and possible further appeals that could delay this litigation yet further.
36. Tesco assert:

f. By contrast, declining the amendment would cause serious prejudice to Tesco. As Tesco understands HHJ Tayler's decision, it would mean the following in relation to the Relevant Grounds: even if the EAT held that the ET had made the error of law alleged, and that error of law undermined the judgment (or individual findings within the judgment) to an extent which goes beyond the illustrative examples, facts or matters currently set out in the Grounds of Appeal, the appeal could be allowed only in relation to those illustrative examples, facts or matters.

g. Further, this would lead to inconsistency and could lead to injustice. Some of the ET's findings which were affected by an error of law would be overturned, while other findings which were affected by the same error of law would remain. It is submitted that this should be avoided, especially in a context in which the 'value' of a person's work depends on an assessment of a mosaic of individual facts.

h. Insofar as the merits of the amendments are relevant, they clearly have merit. As set out above, they provide further information in relation to errors of law which the EAT has already found to have a reasonable prospect of success at a full hearing.

37. I accept that not permitting the amendment may cause real prejudice to Tesco. However, I do not consider it is sufficient to outweigh the prejudice to the claimants and the proper administration of justice by allowing the amendment. The prejudice is essentially of Tesco's own making. Tesco could have set out the full extent of their challenges to the facts that make up the stage 2 equal value judgment when they submitted the appeal or applied for amendment at a much earlier stage. Even now the proposed amendment is extremely vague and risks enormous further delay.
38. I refuse the application to amend to add paragraph 52.
39. The application to add paragraphs 53 to 55 seeks to add as a "point of clarification" that various determinations of facts relating to one of the comparators were applied by the Employment Tribunal to all comparators and that the challenge set out in the grounds of appeal that relate to one comparator apply to all comparators where the Employment Tribunal made findings that were applicable to the others comparators. As this is a point of clarification, I am not sure that an amendment is required. But for good order, I permit the amendment, but subject to any argument that the respondents may present at the final hearing that the ground should fail because it is not a genuine clarification of the existing grounds.