Tesco Stores Ltd v Element & Ors (equal pay claims) [2025] EAT 45 (05 February 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. Over 47,000 claimants have presented equal pay claims against Tesco (including some claimants whose High Court claims are currently stayed pending the outcome of the claims in the Employment Tribunal). The claims were commenced in 2018. None of the claims have been determined. That is extremely troubling, especially because questions such as whether the work of someone working in a shop is of equal value to that of someone working in a warehouse is not conceptually highly complicated and should be capable of resolution within a reasonable period, even though the claims are potentially of a very high total value.

3. The claims have been split into 3 tranches. This appeal relates to a stage 2 equal value hearing that took place in the Tranche 1 claims in respect of 3 job roles, in which the work of 2 sample claimants for each of the 3 roles and 8 comparators have been considered.

4. The equal value 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 by 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]

5. In advance of the stage 2 equal value hearing the parties prepared records of their disputes by reference to job descriptions that they had drafted. There were thousands of disputes of fact and about the relevance of the disputed facts, leaving the Employment Tribunal with an unenviable task. I struggle to see how the parties acting in compliance with the overriding objective failed to reduce the number of disputes to a more manageable number. The potential high total value of the claims is no justification for a war of attrition but a reason for the parties to apply their resources wisely to clarify and simplify the dispute and assist the Employment Tribunal in accordance with the overriding objective. It is vital that the experts have clear and reasonably concise findings of fact upon which they can conduct their analysis.

6. Hearings took place before the Employment Tribunal on numerous dates in March to July 2023. By a judgment sent to the parties on 12 July 2023 ("the first judgment") the Employment Tribunal concluded that it was not able to determine the facts relating to the question:

1. The tribunal's conclusions on the legal issues arising in the course of a determination of the facts relating to the question whether or not the work of a claimant was of equal value to that of one or more comparators led the tribunal to the conclusion that the manner in which the parties had put their evidence and contentions before the tribunal for the stage 2 hearing within the meaning of the Employment Tribunals (Equal Value) Rules of Procedure 2013 which took place on the above dates was so inconsistent with the interests of justice that it was not just to determine the factual disputes as they stood at the end of that hearing.

7. The Employment Tribunal stated that the parties would have to provide wholly revised materials so that the Employment Tribunal could determine the facts relating to the question after there had been further disclosure.

8. The Employment Tribunal entered into correspondence with the parties about its requirements for revised materials and fixed a Preliminary Hearing on 20 July 2023 which was treated as a continuation of the stage 2 equal value hearing. The Employment Tribunal stated that "the respondent's documents in the form of the Training Materials in this case were the best evidence of the content of an employee's work".

9. The parties were opposed to recasting their cases but proposed that they would produce a sample recast case in respect of one of the job tasks undertaken by one sample claimant and one comparator together with an estimate of the time and cost of a full recasting exercise for all job descriptions. The Employment Tribunal made orders for this process to take place ("the July CMO").

10. Tesco submitted a notice of appeal against the first judgment and the July CMO. As the notice of appeal challenges two different decisions it is treated by the EAT as two appeals with two appeal numbers. However, in accordance with the approach adopted by the parties I will refer to the challenges raised in this notice of appeal as Appeal 1.

11. By email dated 9 October 2023, the Employment Tribunal indicated a fundamental change of approach stating that it would not ask the parties to recast their cases but that the Employment Tribunal would determine the disputed facts "primarily by reference to training materials".

12. By order of the EAT sealed on 1 November 2023, HHJ Auerbach directed a Preliminary Hearing, with a recommendation for expedition, to be heard as soon as convenient after the 10 November 2023 hearing in the ET.

13. On 27 October 2023, the Leigh Day claimants and the Harcus claimants submitted a clear and concise "Joint Note on the Law" drafted by leading and junior Counsel in which they contended that in considering the work done by sample claimants and their comparators the starting point is "what is done in practice". The Employment Tribunal responded on 9 November 2023, challenging the approach suggested in the Joint Note on the Law.

14. The Preliminary Hearing in the first appeal in the EAT was held on 29 February 2024 after the Employment Tribunal had changed its position and decided it would determine the disputes. In those circumstances Tesco withdrew a number of grounds of appeal. Tesco also sought permission to add a further ground to which the Leigh Day claimants and the Harcus claimants have now consented. Tesco renumbered the grounds of appeal. HHJ Auerbach permitted ground 8 to proceed and the other remaining grounds were stood over to be considered after the stage 2 judgment.

15. The stage 2 judgment was sent to the parties on 5 July 2024 ("the second judgment"). The judgment includes a main judgment and a number of appendices.

16. Tesco submitted a further Notice of Appeal on 15 August 2024 challenging the second judgment.

17. This preliminary hearing was fixed to consider whether grounds re-numbered 1 to 7 in the first appeal and 1 to 11 in the second appeal are reasonably arguable. I will refer to these grounds as A1G1, appeal 1 ground 1; and A2G1, appeal 2 ground 1; etc.

18. There is considerable overlap between the grounds as there is between the legal analysis and determinations in the first judgment, the July CMO and the second judgment.

19. I shall consider the grounds of appeal as they have been grouped by Tesco to deal with the overlap between them. Because the grounds have been permitted to proceed I shall, as is the normal course in the EAT, give only very brief reasons, leaving the full analysis to the tribunal determining the full appeal.

20. It is impossible not to view this litigation with profound disquiet. The litigation does not appear to me to be proceeding in accordance with the overriding objective. The parties must comply with their obligation to assist the Employment Tribunal and EAT to apply the overriding objective. The parties have large legal teams and can provide considerable assistance, and must focus on the key disputes. They have sufficient resources to reduce the disputes and be concise.

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.

22. I have reminded myself that my role at a Preliminary Hearing is only to determine whether grounds of appeal are reasonably arguable. I have resisted the temptation to go further despite the detailed expert submissions I heard. The detailed skeleton arguments demonstrate that much of the preparation for the appeal hearing has been undertaken so that it can be expedited as far as it is possible to do so.

23. I required the parties to provide a table of the grounds of appeal to be considered at this Preliminary Hearing. The table includes the disposal sought if each ground succeeds as required by Section 3.8.6 of the EAT Practice Direction.

24. Save that Rule 6 EV Rules refers to facts which "relate to the question" rather than "facts relating to the question" Tesco agree the Joint Note on the Law. Without wishing to overemphasise the point, the Joint Note on the Law is the work of leading and junior Counsel who are expert and experienced in equal value litigation and is now agreed. That does not mean it has to be accepted as accurate by the Employment Tribunal or EAT but one would expect there to be some very good reason for departing from it.

General grounds - A1G1, A1G2, A2G1, A2G2, A2G3

25. These grounds are reasonably arguable. It is arguable that the Employment Tribunal misdirected itself in law as to its function at the stage 2 equal value hearing.

26. A2G2 - while "work" does not necessarily mean only what is done in practice, that is the starting point, as agreed in the Joint Note on the Law. At numerous points the Employment Tribunal adopts a different analysis, such as at paragraph 9 of the second judgment where it is stated: "The most basic principle of all was this: an employee's job is not what the employee says it is, but what the employer says it is".

27. A1G2 - it is arguable that the Employment Tribunal erred in law in directing itself that "the primary focus should be on training documents" which gave excessive importance to one of many sources of information that could assist in determining the facts on which the parties cannot agree which relate to the question.

28. A1G1 –it is arguable that fact finding should be about the work of individual job holders rather than generic jobs.

29. A2G1 - it is arguable that Rule 6 EV Rules requires the Employment Tribunal to accept facts upon which the parties are agreed and to resolve all relevant facts upon which they are disagreed. This ground is limited to those specific facts upon which the parties were asserted to be agreed and to facts upon which it is asserted they disagreed as set out in the ground of appeal, absent any successful application to amend.

30. A2G3 - it is sufficiently arguable to proceed that there was a procedural irregularity in the Employment Tribunal changing its approach to the determination of the facts relating to the question after the Stage 2 Hearing.

31. These grounds largely relate to the manner in which the Employment Tribunal directed itself in law. It may be the case that some of the Employment Tribunal's legal musings about the job it had to do did not have a significant effect on the way some, or all, of the fact finding was undertaken. I see the argument that, while the starting point is what is done in practice, what really matters is the finishing point of whether the facts found by the Employment Tribunal will enable the question to be answered. I consider arguments about the practical effects of any misdirection in law are best considered at a full hearing.

Specific Grounds

A1G3 - Excluding evidence relating to data

32. While this may be determined to be no more than robust case management, the ground is sufficiently arguable to proceed, particularly as it appears that after having ruled such evidence inadmissible it was then relied on to some extent. The assertion of the claimants that even if there was an error in law in the initial decision to exclude such evidence it did not have any significant practical consequences is best considered at a full hearing.

A1G5 - Refusing to make findings of facts about training received by job holders

33. This ground is sufficiently arguable to proceed although I appreciate it may be concluded that it is in reality a perversity ground with the accordingly high threshold for success. Tesco will be limited to the specific examples it gave in the ground of appeal, absent any successful application to amend.

A1G6 - Findings about time pressures

34. This ground is sufficiently arguable to proceed, particularly that the Employment Tribunal may have gone beyond the fact finding appropriate at a stage 2 equal value hearing.

A1G7 - Treating relationships as irrelevant

35. This ground is sufficiently arguable to proceed, particularly as it appears that the independent expert considered that relationships could be relevant and there would be no further stage at which this matter could be considered.

A2G4 - performance targets

A2G5 - job facts relating to risks and hazards

A2G6 - faulty equipment

A2G7 - time of day at which work was carried out

A2G8 - physical effort in relation to the comparators' work

A2G9 - monitoring of comparators

A2G10 - comparators' physical working environment

A2G11 - comparators carry out mental arithmetic

36. While I appreciate that it may be concluded that these grounds are essentially perversity grounds, so face a very high threshold for success, I consider that the grounds are sufficiently arguable to proceed but limited to the matters specifically raised in the grounds of appeal, absent any successful application to amend. I consider that it is arguable that the Employment Tribunal excluded consideration of matters about which findings of fact could be relevant to answering the "question".

Case management

37. I directed that this judgment be handed down at a hearing at which the parties are represented so that the listing of the full appeal can be fixed at the first available date and orders made to prepare for that hearing.

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Tesco Stores Ltd v Element & Ors (equal pay claims) [2025] EAT 45 (05 February 2025) URL: http://www.bailii.org/uk/cases/UKEAT/2025/45.html Cite as: [2025] EAT 45

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