Equal pay: Tesco's appeal over job assessment method fails

Lawyers representing Tesco workers have welcomed a Court of Appeal ruling on how tribunals should assess the value of the roles carried out by Tesco shop workers in the long-running equal pay litigation.

They described the judgment as an important step towards improving access to justice in large-scale equal pay claims, although Lady Justice Elisabeth Laing said a final decision on the claims is "still a long way off".

In the judgment, the Court of Appeal dismissed Tesco's challenge to the employment tribunal's approach to determining the "job facts" of the supermarket's customer assistants and warehouse operatives as part of the equal value process.

The ruling comes during an ongoing employment tribunal hearing in relation to Tesco's defence, where the supermarket is attempting to justify paying predominantly female store workers less than distribution centre workers, who are mostly male.

Lawyers at Leigh Day, acting for more than 16,000 shop workers, argue that Tesco cannot lawfully rely on so-called "market rates" to justify the pay gap.

A central issue in the Court of Appeal case was Tesco's attempt to prevent the Tribunal from relying on the retailer's own training materials and operational documents to determine what work customer assistants and warehouse operatives were required to do.

The appeal court upheld the tribunal's approach, recognising that Tesco operates in a highly regulated environment (e.g. there is criminal liability for selling some foods), uses sophisticated digital stock systems, and maintains detailed training materials to ensure work is carried out consistently across its stores.

The Court of Appeal accepted that Tesco had a "strong business need" for customer assistant and warehouse operative roles to be performed in the same way throughout its operations and upheld the tribunal's finding that Tesco's training materials could be treated to determine what Tesco required staff to do, unless there was clear evidence to the contrary.

The judgment said: "An important benefit of the approach taken by the employment tribunal is that it conforms to the reality of the way in which remuneration is determined in a business like Tesco's and is thus more likely to produce a result which can be applied to the claimants as a group and to produce a workable outcome if the claims succeed."

Solicitors at Leigh Day said the ruling is significant because it rejects attempts to force thousands of equal pay claimants to prove every aspect of their jobs individually.

Kiran Daurka, employment partner at Leigh Day, said: "The Court of Appeal has recognised the importance of removing unnecessary hurdles that prevent everyday people from accessing justice in complex equal pay litigation.

"This judgment is a welcome clarification that, in large-scale cases involving sophisticated respondents like Tesco and other large retailers, tribunals can take a practical and proportionate approach to assessing jobs, which then mitigates against unnecessary complexity to delay or obstruct claims.

"Our clients have always maintained that these cases should focus on the reality of the work being done, not on creating artificial barriers that make equal pay claims impossible to pursue. This ruling will help future claims progress in a more streamlined and accessible way."

The judgment also repeated criticisms of Tesco's approach to the evidence before the tribunal, including concerns about the nature and presentation of witness evidence relied upon by the supermarket during the litigation.

It also provided guidance that tribunals in large-scale equal pay litigation may in appropriate cases assess jobs more generically, rather than requiring every claim to be examined on an overly individualised basis.