Stage 2 Equal Value Hearings: “Work” as Job Requirements, Appeal Particularisation, and the Bar on Revisiting Agreed Facts

Case: Tesco Stores Ltd v Element & Ors
Citation: [2026] EWCA Civ 580
Court: England and Wales Court of Appeal (Civil Division)
Date: 12 May 2026
Judges: Lady Justice Elisabeth Laing, Lord Justice Nugee, Sir Nicholas Underhill

1. Introduction

This Court of Appeal decision concerns two linked appeals arising from mass equal pay litigation brought by tens of thousands of retail workers (predominantly women) against their employer, Tesco Stores Limited (“Tesco”). The claimants compare their store roles with male comparators working in distribution centres.

The appeals do not determine whether the claimants will ultimately succeed. They address how employment tribunals should conduct and structure the “stage 2 equal value” process—where disputed facts about each job are fixed for use by independent experts (“IEs”)—and how higher tribunals should handle appeals at that interlocutory (but procedurally decisive) stage.

A key contextual feature was the litigation culture described by Sir Nicholas Underhill: “hyper-granular” equal value job descriptions (“EVJDs”) and “Records of Dispute” (“RoDs”) containing thousands of minute disagreements, with parties contesting not just tasks but adjectives and phrasing. The ET reacted strongly against that approach, seeking instead to anchor findings in Tesco’s highly detailed and prescriptive training and operating manuals.

Parties (role-based)

• Appellant: Tesco Stores Limited.
• Respondents: store-worker claimants (in two represented groups), bringing equal pay/equal value claims against Tesco using distribution-centre comparators.

Key issues on the appeal

1. What “work” means in ss 64–65 Equality Act 2010 in the stage 2 equal value context.
2. What constitutes the “outcome” of a stage 2 equal value hearing for appeal purposes: an overarching decision or the individual factual determinations (or both).
3. Whether the ET materially erred in law in (a) its reliance on training manuals, (b) the clarity of its factual determinations, (c) departing from agreed facts, and (d) declining to make findings on the training actually received.

2. Summary of the Judgment

The Court of Appeal largely upheld the EAT’s approach and rejected Tesco’s principal challenge to the ET’s methodology. In particular, it accepted that, in a highly standardised and regulated workplace with “detailed and prescriptive” manuals, the ET could legitimately treat training documents as a reliable starting point for identifying the requirements of the work, while remaining open to “cogent evidence” that reality differed.

The Court also confirmed that appeals which seek to challenge numerous stage 2 factual determinations must identify the particular determinations said to be legally flawed; it is not enough to advance a general complaint and provide only illustrative examples.

However, the Court allowed the appeal on one discrete but important point: under the Equal Value Rules, the ET may determine only facts the parties cannot agree; it therefore had no power to override or cast doubt on facts the parties had agreed (though it may decide whether an agreed fact is legally relevant).

Disposition: (i) appeal against EAT (1) dismissed; (ii) appeal against EAT (2) allowed only on “agreed facts” (ground 3); otherwise dismissed.

3. Analysis

3.1 Statutory and procedural framework driving the dispute

Equality Act 2010, ss 64–66 and 69

• s 64 frames the equal pay comparison as between persons “employed on work that is equal” to a comparator’s work.
• s 65 defines “equal” work as “like work”, “rated as equivalent”, or (crucially here) “of equal value”, meaning equal in demands (effort, skill, decision-making, etc.).
• s 66 inserts the sex equality clause into contractual terms, subject to defences.
• s 69 provides the material factor defence (not decided here).

The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 3 (Equal Value Rules)

The centre of gravity in this appeal was Rule 6 of Schedule 3:

• Rule 6(1)(a): at stage 2, the ET must determine disputed facts “which relate to the question” (whether claimant work is of equal value to comparator work) and require the IE to report on the basis of facts “agreed” or “determined”.
• Rule 6(2): those “facts relating to the question” are the only facts relied on at the final hearing (subject to amendment on the IE’s application).

This structure explains why the Court treated stage 2 determinations as a bundle of logically separable factual findings: each finding supplies the evidential platform for the IE’s evaluative report, not a final merits decision.

3.2 Precedents cited and their influence

Jafri v Lincoln College — the EAT’s remittal discipline

The Court relied on Jafri v Lincoln College for the orthodox appellate principle: the EAT polices legality, not merits; if an error of law is material and multiple lawful outcomes are possible, remission follows. The present decision adapts that framework to stage 2 equal value decisions by asking: what is the “outcome” whose materiality is assessed? The Court’s answer is granular: absent a structural legal misdirection infecting the whole exercise, the “outcomes” are the individual determinations.

Shields v E Coomes (Holdings) Limited — “actual practice” as a corrective, not a universal rule

Tesco’s argument leaned heavily on Shields v E Coomes (Holdings) Limited, treating it as a directive that tribunals must prefer “what is done in practice” over “paper requirements”. The Court rejected that as a false dichotomy.

The Court reframed Shields v E Coomes (Holdings) Limited as a case about discounting merely notional contractual obligations that never arise in practice. It does not establish that “minute-by-minute” activity is the only, or primary, yardstick for “work” across all equal value cases. Rather, it shows that the “work” to be evaluated must reflect reality, which sometimes requires looking past formal documents.

Brunnhofer v Bank der Ȍsterreichischen Postsparkasse — qualitative comparison; “activities actually entrusted”

The Court drew on Brunnhofer v Bank der Ȍsterreichischen Postsparkasse to emphasise that equal pay comparison is qualitative and focused on the nature of work and the “activities actually entrusted” to employees, taking account of training requirements and working conditions. The ET relied on this to justify using training manuals as evidence of what Tesco actually entrusted to job-holders.

Importantly, the Court treated Brunnhofer v Bank der Ȍsterreichischen Postsparkasse as compatible with an employer-requirements approach: in a business where training manuals prescribe tasks in detail, the “activities entrusted” can be evidenced by those manuals unless displaced by cogent contrary evidence.

Beal v Avery Homes (Nelson) Limited — work as requirement/expectation; documents relevant but not determinative

Beal v Avery Homes (Nelson) Limited was treated as the most practically helpful domestic guidance on defining “work” for stage 2 purposes. The Court endorsed its insistence that:

• documents (contracts, job descriptions, work manuals) are relevant but not necessarily determinative;
• what the employee does is important but not necessarily determinative (e.g., “loafing” is not “work”);
• managerial instruction/encouragement/tacit approval can bring activities within “work”.

The Court added a limited caveat to one of Lavender J’s general points: unlawful instructions cannot sensibly define “work”.

Prest v Mouchel Business Services Limited — limited relevance; “fungible” comparators

The ET placed surprising weight on Prest v Mouchel Business Services Limited. Lady Justice Laing was unconvinced of its relevance and treated any reliance on it as immaterial if the ET’s overall understanding of “work” was correct. Sir Nicholas Underhill, however, explained why it was at least tangentially connected: it highlights the artificiality of requiring individualised comparators where the dispute is really about generic job rates, supporting the idea that generic job requirements may matter more than idiosyncratic descriptions.

Hazell v London Borough of Hammersmith v Fulham — statutory tribunals cannot exceed their code

The Court invoked Hazell v London Borough of Hammersmith v Fulham to ground the central allowed ground: where Schedule 3 is a code, the ET cannot exercise powers contrary to it. That principle made the “agreed facts” error straightforward: Rule 6 authorises determination only of facts the parties cannot agree.

Other authorities (contextual)

• Potter v North Cumbria Acute Hospitals NHS Trust was referenced in the discussion in Beal v Avery Homes (Nelson) Limited about tasks done rarely but still part of the work.
• Bury Metropolitan Borough Council v Hamilton and Newcastle upon Tyne Hospitals NHS Foundation Trust v Armstrong were cited by Sir Nicholas Underhill for broader criticisms of “myopic” individualised equal pay comparison in mass claims.
• Eaton Limited v Nuttall was mentioned in Shields v E Coomes (Holdings) Limited as part of historical development.

3.3 The Court’s legal reasoning on the five grounds

(1) “Work” and the legitimacy of training manuals as a primary evidential anchor

The Court rejected Tesco’s submission that the ET unlawfully focused on what the employer “required” rather than on what employees “did every day”. The Court treated “work” as the product of the wage/work bargain: employees are paid for the job as required by the employer, subject to the corrective that “requirements” which are merely notional, or that no longer reflect the real bargain, may be disregarded.

In the factual setting—highly prescribed tasks, regulatory constraints, and unusually detailed manuals—the ET was entitled to regard the manuals as strong evidence of job requirements and to use them as a starting point, while allowing departure where “cogent evidence” showed they were not determinative in practice.

(2) Rule 6 findings: did the ET “find facts” or merely dump documents?

Tesco argued that incorporating around 19,000 pages of materials frustrated the legislative purpose because findings were not sufficiently clear for the later stages. The Court deferred to the EAT’s practical assessment (which had tested an example) that the ET’s approach was workable, albeit laborious, and emphasised that judgment 2 was not a final stage 2 “finished product” but a staging post capable of being refined (including via the EAT’s later disposal directions).

The Court’s reasoning is pragmatic: procedural dysfunction and inconvenience are not, without more, errors of law where the tribunal’s approach is legally open and can be operationalised.

(3) The allowed ground: the ET cannot depart from agreed facts

This was the Court’s single point of intervention. Under Rule 6(1)(a), “agreed” facts and “determined” facts are mutually exclusive categories. The ET’s role is to determine only what is not agreed. Accordingly:

• the ET has no power to “re-determine” agreed facts;
• the ET should not force parties into reconsideration applications to correct an action it had no power to take;
• the ET may, however, decide whether something is relevant to “the question” (relevance is a legal issue).

(4) Training received vs training required: no mandatory need for granular findings

Tesco argued the ET had to find what training each job-holder actually received. The Court rejected this in the present context: if tasks require mandatory certification (e.g., fork-lift operation), it can generally be assumed the worker had it if they were allowed to do the task; and in this highly prescribed environment it was a fair assumption that training materials reflected the expected training and thus the job’s demands, unless evidence displaced that assumption. The precise dates and completion records were not an “essential component” of the stage 2 findings here.

(5) “Scope” (EAT (1)) and the need to particularise challenged determinations

The Court upheld the EAT’s limitation: where an appellant claims errors in specific factual determinations produced at stage 2, those determinations must be identified. Because the determinations are logically independent, an unparticularised challenge would create unacceptable uncertainty and invite endless re-litigation on remission.

3.4 Impact and significance

1) A more realistic definition of “work” in mass equal value litigation

The decision recognises the mismatch between (a) statutory machinery comparing individual claimants and comparators, and (b) how large employers actually structure roles and pay (generic jobs, standardised requirements). By validating an approach grounded in objective job requirement materials—subject to reality-check evidence—the Court supplies a route away from purely anecdotal “second-by-second” narratives.

2) Procedural discipline: appeals must be targeted

The “scope” holding is likely to reshape how appellants draft EAT grounds in large equal value claims. The message is that stage 2 is not a single monolithic decision: it is a collection of discrete findings, and challenges must be mapped to those findings unless a truly structural error is pleaded.

3) A hard limit on tribunal “correction” of party agreements

The allowed ground draws a bright line: a tribunal cannot substitute its view of the facts for what parties have agreed as “facts relating to the question” under Schedule 3. This reinforces predictability for IEs and prevents procedural drift where tribunals attempt to “improve” the parties’ agreed platform.

4) Recalibrating the culture of EVJDs/RoDs

Sir Nicholas Underhill’s observations about “hyper-granularity” are likely to be cited in future case management: tribunals may more confidently require parties to focus on genuinely material disputed facts and to use objective contemporary evidence (manuals, systems, regulated procedures) where available.

4. Complex Concepts Simplified

“Stage 2 equal value hearing”

It is not the final trial. It is the tribunal’s fact-finding stage to produce a settled factual platform—what tasks are part of each job, how often, under what conditions—so that an independent expert can later evaluate whether the store job and distribution-centre job are of “equal value”.

EVJDs and RoDs

• EVJD: a detailed “equal value job description” prepared for litigation.
• RoD: a schedule listing each disputed point about the EVJD, so the tribunal can decide it.

Why “agreed facts” matter so much

Under Schedule 3, IEs must base their evaluation on “facts relating to the question”. If tribunals could later unsettle agreed facts, the IE’s foundation becomes unstable, causing repetition, cost, and delay—especially in group litigation.

Training manuals as evidence (not as automatic truth)

The Court did not say manuals are always conclusive. It accepted they can be the best starting point in highly standardised roles, but still must yield if evidence shows they are not followed, are outdated, or contain notional requirements that never arise in practice.

5. Conclusion

Tesco Stores Ltd v Element & Ors provides an important procedural and substantive roadmap for stage 2 equal value litigation:

• Substance: “work” in ss 64–65 Equality Act 2010 is best understood as the job’s required content (the wage/work bargain), with “actual practice” acting as a corrective where documents do not reflect reality. Detailed training materials may legitimately anchor findings in standardised roles.
• Procedure: stage 2 produces many discrete factual determinations; appeals must identify the determinations challenged, unless alleging a truly structural invalidity.
• Rule-of-law limit: under Schedule 3 Rule 6, the ET cannot override agreed facts—this was the only ground on which the Court intervened.

The decision is likely to be cited both for its doctrinal clarifications and for its strong steer against unmanageable, “hyper-granular” equal value fact disputes, especially in large-scale claims where the practical utility of stage 2 outputs is critical.