EQUAL PAY CLAIMS AND EVIDENCE
Key Lessons from the Tesco Appeal
The Court of Appeal has recently dismissed in large part Tesco’s appeal in the long-running equal pay litigation brought by around 34,000 predominantly female store workers. The claims allege that their work in Tesco stores is of equal value to that of higher-paid male comparators working in distribution centres.
At the heart of the appeal was a key evidential question: how tribunals should determine what constitutes “work” for the purposes of equal value claims under the Equality Act 2010.
The employment tribunal had taken an unusual but significant approach at a stage 2 equal value hearing. Rather than relying primarily on detailed witness evidence and job descriptions, it treated Tesco’s own training materials as the most reliable and objective evidence of the requirements of the roles. This approach reflected the highly regulated and standardised nature of the work, where job expectations were set out in considerable detail by the employer. The tribunal also made clear that this starting point could be displaced by cogent evidence showing that the training documents did not reflect reality.
The Court of Appeal upheld this approach in substance. It confirmed that “work” in this context refers to what the employer requires under the wage/work bargain, rather than simply what employees happen to do on a day-to-day basis. In circumstances where roles are tightly prescribed, the tribunal was entitled to treat training materials as a primary and reliable source of evidence when assessing job demands.
The Court also distinguished earlier case law, including Shields v E Coomes and Beal v Avery Homes, noting that those cases involved situations where contractual documentation did not accurately reflect the reality of the work performed. By contrast, Tesco’s training materials were detailed, structured, and directly relevant to the duties required of employees.
However, the Court of Appeal did allow part of Tesco’s appeal. It found that the tribunal had erred under the Equal Value Rules 2013 by making determinations that went beyond matters actually in dispute between the parties. Tribunals, the Court confirmed, are only empowered to decide factual issues that cannot be agreed upon.
In summary, the decision reinforces that in equal pay claims involving highly structured and standardised roles, tribunals may rely heavily on employer-produced training materials as objective evidence of job requirements, provided they remain open to contrary evidence and stay within the limits of the issues properly in dispute.
Key Takeaways:
If internal documents set out detailed expectations, tribunals may rely on them more heavily than witness recollections of day-to-day work. Employers’ operational documentation can unintentionally “define” the reality of roles in equal pay claims.
Arguments based on “how things really work on the ground” may carry less weight if they diverge from written role requirements. For employers, consistency between contracts and training materials is crucial.
Read the case HERE
