Tesco Stores Limited (appellant) v Ms K Element and ors (respondent)
Tesco has been refused permission to appeal to the Supreme Court in relation to how evidence of ‘equal value’ will be addressed in its long-running equal pay litigation involving thousands of staff.
The case concerns large-scale equal pay claims against Tesco which were initiated in 2018. Given the vast number of claimants involved and the significant financial consequences of the ultimate outcome, the proceedings are complex and protracted with many procedural satellite issues being fought and appealed. The Supreme Court summarised the key facts as:
Claimants: predominantly female, hourly paid employees working in Tesco stores.
Comparators: Mainly male employees working as operatives in Tesco’s distribution centres.
The claimants claim their work is of equal value to their comparators and are brought under the Equality Act 2010 (s65(1) and 65(6)).
Approximately 60,000 claimants across the wider litigation, with around 34,000 in the relevant multiple from which sample claimants were selected.
The Supreme Court application
The issues Tesco wanted to appeal before the Supreme Court on this occasion were:
What does “work” mean under the Equality Act 2010?
Can an employment tribunal incorporate training documents instead of resolving disputes of fact under the Employment Tribunals (Equal Value) Rules of Procedure?
The Supreme Court declined to reconsider the Court of Appeal’s decisions on these points on the basis that they did not raise an arguable point of law of general public importance that the Supreme Court ought to hear at this time. Accordingly, the position remains unchanged since the Court of Appeal decision on this point earlier this year.
The Court of Appeal decision which stands
The Court of Appeal considered whether “work” must be assessed under the Employment Tribunals (Equal Value) Rules of Procedure by considering employees’ specific witness statements about their actual duties and what they do in practice (as Tesco argued); or was it permissible to base the decision on the job requirements as evidenced by the employer’s role descriptions, training materials and standard procedures to demonstrate what employees are expected to do (as the employment tribunal had done).
In this case, the Court of Appeal upheld the tribunal’s decision at the stage 2 equal value hearing to depart from the conventional approach of relying on detailed job descriptions and witness evidence on day-to-day work. It held that Tesco’s extensive training documents were the best evidence of the requirements and demands of the jobs, given the highly regulated, prescribed and standardised nature of the work.
The Court of Appeal held that "work" is the product of the wage/work bargain and that the tribunal was entitled to treat the detailed training documents as the starting point for determining the work requirements in this context.
In making this decision, the Court of Appeal noted that the tribunal expressly acknowledged that it was open to Tesco to adduce cogent evidence to seek to persuade the tribunal to move away from that starting position. However, Tesco’s argument that there must be a comparison of contractual obligations and actual work was based on a false separation between contractual requirements and actual practice which did not necessarily exist in the circumstances of this case as it had in previous cases Tesco sought to rely on (Shields v E Coomes (Holdings) Ltd 1978).
Comment
A tribunal is not necessarily bound to consider huge amounts of witness evidence if there is clear and objective documentary evidence which can form the basis of its factual decision as what the work of a particular group of employees is in equal value cases.
However, in some cases, where it is argued that the reality of the work employees undertake is not accurately reflected in the documentation, the usual approach of assessing detailed witness evidence on what the employees’ day to day work entails will still be required.
Also see our update on the latest from the NEXT Equal Pay litigation.
For guidance on any aspects around equal pay, please contact our expert employment law solicitors.
