Court of Appeal upholds key aspects of Tesco equal pay approach

Background

In Tesco Stores Ltd v Element and others, thousands of retail employees brought equal pay claims comparing their work with higher-paid roles in Tesco distribution centres. The litigation has been ongoing since 2018 and concerns whether store-based roles are of equal value to distribution centre work.

During the stage 2 equal value process, the Employment Tribunal became critical of the parties’ approach to identifying the content of the jobs. Instead of relying primarily on witness evidence about what employees did in practice, the Tribunal concluded that Tesco’s detailed training and operational documents provided the best evidence of what the jobs required employees to do.

Tesco appealed, arguing that the Tribunal had misunderstood the meaning of “work” under the Equality Act 2010, had wrongly relied on training materials, and had failed properly to determine factual disputes.

Court of Appeal decision

The Court of Appeal dismissed almost all of Tesco’s grounds of appeal.

The Court accepted that, in the context of highly regulated and standardised jobs, detailed training materials could properly be treated as strong evidence of the work employees were required to carry out. It rejected Tesco’s argument that the Tribunal should have focused exclusively on what individual employees did “day-to-day” in practice.

The Court also recognised the practical difficulties faced by the Tribunal in dealing with extremely detailed and heavily contested job descriptions and records of dispute. It endorsed the Tribunal’s attempt to rely on more objective documentary evidence rather than highly granular witness evidence about thousands of disputed factual points.

However, the Court did allow one limited ground of appeal. It held that the Tribunal had no power to reject or revisit facts that the parties had already agreed during the stage 2 equal value process.

Learning points for employers

This decision will be significant for employers involved in complex equal pay litigation, particularly where roles are highly standardised and governed by detailed operational procedures or training materials. The judgment confirms that Tribunals may place substantial weight on objective documentary evidence showing what employees are required to do, rather than focusing solely on individual witness accounts of day-to-day working practices. The case also highlights the difficulties and costs associated with highly granular equal pay litigation and the importance of maintaining clear, consistent and up-to-date job documentation.

For more information please contact Alice Mennell in our Employment Team.