The Court of Appeal has considered an important procedural point in the long-running Tesco equal pay litigation – a case which will be familiar to many in the retail sector.
Thousands of Tesco store workers (who are predominantly female) are seeking to prove that their roles are of “equal value” to higher-paid warehouse workers (who are predominantly male) in order to seek parity of pay. The claim, lodged in 2018, is said to be worth several billions of pounds.
The latest decision focuses on a practical question: how should Employment Tribunals determine what “work” the employees are required to do, in order to compare the roles and assess their equal value. The Court of Appeal has confirmed that detailed training documents can be used as a starting point.
A departure from the conventional approach
Historically, Tribunals have often tended to focus on what work the employees do in practice, by reference to equal value job descriptions and oral evidence from witnesses about day-to-day duties.
But in this case, after a 36-day equal value hearing in 2023, the Tribunal took a different approach. It placed significant weight on Tesco’s training documents and “manuals”, which set out in great detail how Tesco wants (and expects) its employees to undertake every aspect of their job. These were extensive: around 19,000 pages of training documents were referred to in the Tribunal’s decision. The Tribunal concluded that they provided good evidence of the requirements and demands of the jobs.
The Court of Appeal has endorsed that approach and criticised too much focus on witness testimony regarding the day-to-day operation of the role, endorsing that training and operational documents provided the best evidence. It held that for the purposes of equal pay claims, “work” is the product of the wage/work bargain. In simple terms, an employee’s job is not what they say it is, but what the employer says it is.
The Court accepted that Tesco operates in a highly regulated environment, with a strong business need for efficiency and consistency in how work is done across the organisation. Against this backdrop, the Tribunal was entitled to treat the training documents as the starting point, departing from them where there was clear evidence that they did not reflect reality.
A pragmatic response to large-scale litigation?
A key theme in the judgment is the sheer complexity of mass equal pay claims.
The Court of Appeal had great sympathy for the practical difficulties faced by the Tribunal. It had been presented with extremely detailed job descriptions and disputes around the role in practice, many of which were described by the Court as “semantic quarrels”. The objective training documents “seemed to be a fixed point in an otherwise unstable universe”.
The Court was critical of the “hyper granular” approach that it said has developed in these cases, which makes cases unmanageable. The Court was clear that this approach must be resisted and that a Tribunal should try, where possible, to rely on objective contemporary evidence (like the training documents in this case).
What does this mean for employers?
Although this is a procedural decision, it is a significant one for any employer facing, or seeking to mitigate the risk of, equal pay claims. This is particularly the case where environments are standardised and governed by operational procedures or training materials (as was the case for Tesco). The case highlights that:
- Internal training and operational documents may play a central role in assessing the requirements of job roles. Employers should ensure that they are clear, accurate and kept up to date;
- That such materials reflect how work is actually undertaken in practice and on the ground; and
- Attempts to turn large claims into highly detailed factual disputes over what happens “day-to-day” may not find favour with the courts when there is clear paper evidence of role requirements.
As the Court itself acknowledged, the final decision on the merits of the claims against Tesco are still a long way off.
We will have to wait another few years for a decision on whether or not the store and warehouse roles are actually of “equal value” – and therefore whether there has been a breach of equal pay law.
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