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.
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...
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