Tesco Stores Ltd v Element & Ors

Factual and Procedural Background

This summary concerns two appeals from the Employment Appeal Tribunal ("EAT") arising from multi‑claim equal pay proceedings that began in 2018. The Appellant (Company A) appealed decisions of the Employment Tribunal ("ET") following a stage 2 equal value hearing in March–May 2023 that lasted 36 days. The ET issued an initial judgment (Judgment 1) and a later reserved judgment (Judgment 2) which relied extensively on Company A's training materials to identify the content of the jobs of six sample claimants and eight comparators. The EAT heard two appeals (referred to here as EAT (1) and EAT (2)). EAT (1) concerned scope/particularity of grounds of appeal; EAT (2) reviewed various alleged errors in the ET's approach to "work", the use of training documents, the treatment of agreed facts, and findings about actual training received. The EAT allowed some grounds in part, remitted certain matters and made a disposal order requiring significant further work to convert the ET's findings into a form usable by independent experts. The Appellant appealed to this Court against aspects of the EAT's decisions. Judge Laing, Judge Underhill and Judge Nugee heard the appeals and delivered reasons on disposition.

Legal Issues Presented

1. What does the word "work" in sections 64 and 65 of the Equality Act 2010 mean?
2. What is the relevant outcome for the purposes of an appeal to the EAT from a stage 2 equal value hearing: an overarching decision, each factual determination, or both?
3. In the light of the answer to (2), did the ET materially err in law in its decisions after and in connection with the stage 2 hearing (including use of training documents, departure from agreed facts, and findings about actual training received)?

Arguments of the Parties

Appellant's Arguments

• The ET erred in law in treating employer training documents as determinative of the content and demands of work rather than focusing on what employees did in practice.
• The ET's approach produced factual determinations by incorporating large volumes of training material instead of making clear findings, contrary to Rule 6 of the Equal Value Rules.
• The ET improperly departed from facts which the parties had agreed.
• The ET failed properly to determine what training individual jobholders had actually received (except for narrowly mandatory training), which was material to demands of the work.
• The EAT erred by limiting the scope of appeal and requiring specific identification of each factual determination challenged (scope objection pursued in EAT (1)).
• Remittal for re‑hearing of stage 2 equal value issues was said to be required in practice.

Claimants' / Respondents' Arguments

• The ET's approach to treating training documents as the primary evidence of what the employer required was open to it, given the regulatory, standardised and prescriptive nature of the jobs at issue.
• The ET was entitled to rely on training materials as the best objective evidence of job content unless displaced by cogent evidence.
• The Appellant failed to particularise errors of law sufficiently; many challenges were not material to the outcome.
• The EAT's disposal order and directions would make it practicable to proceed without wholesale remittal.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court set out the statutory and procedural framework (Employment Tribunals Act 1996, Equality Act 2010, and the Equal Value Rules). It identified three core issues (meaning of "work"; the proper appeal outcome from stage 2; whether the ET materially erred). The Court proceeded by:

1. Analysing the statutory language of sections 64–66 and 65(6) of the Equality Act 2010 and the Equal Value Rules (in particular rule 6 on the stage 2 equal value hearing and the role of independent experts).
2. Considering authorities (Shields, Brunnhofer, Beal, Prest) to extract relevant principles about assessing "work" and the evidential weight of contemporaneous employer documentation.
3. Rejecting a rigid dichotomy that "work" must be defined only by what employees do in practice; instead holding that "work" is a product of the wage/work bargain and that employer requirements (as evidenced by detailed, prescriptive training materials) can legitimately be a primary, objective basis for determining what the job requires in regulated, standardised roles.
4. Explaining that reliance on training documents is lawful where those documents are objectively probative of employer requirements, subject to displacement by cogent evidence that they do not reflect reality; the ET did not treat the documents as absolutely conclusive and left room for contrary evidence.
5. Addressing the appellate framework: where the EAT finds an error of law in a factual determination from a stage 2 hearing, the EAT must set aside that specific factual determination and remit it; factual determinations are generally logically independent, so appellants must particularise which factual determinations they challenge. The Court held that the EAT was entitled and obliged to limit appeals to identified factual determinations (thus dismissing the scope challenge in EAT (1)).
6. Finding that the ET had no power under the Rules to re‑visit facts that the parties had agreed (save for a narrow legal question of relevance), so the ET erred in law when it treated or recharacterised agreed facts as matters it could decide contrary to agreement; the Court allowed the appeal on that ground (ground 3 of EAT (2)).
7. Considering whether the ET was required as a matter of law to make express findings about the training each jobholder had actually received: the Court concluded that, in the particular factual context (regulated, standardised jobs with comprehensive training materials), express findings about individual receipt of routine training were not essential to the ET's determinations; exceptions exist for mandatory, competency‑gated training (e.g. forklift licences) but, on the facts, explicit findings about receipt were not necessary.
8. Reviewing whether the ET had rendered intelligible factual determinations by incorporating extensive training documents: the EAT had found the ET's task difficult but possible to "marry up" the documents and findings; the Court accepted that the ET's approach was open to it and that further structured work ordered by the EAT could render the determinations usable by experts.

Holding and Implications

DISPOSITION: The Court (by majority) dismissed the appeal against EAT (1) and dismissed the Appellant's appeals against EAT (2) except in respect of one ground. The Court allowed the appeal against EAT (2) on ground 3 (the ET erred in law by revisiting or overturning facts that had been agreed between the parties) and dismissed the remaining grounds of appeal.

Implications:

• Direct effect: the ET's determinations made contrary to facts agreed by the parties were held to be unlawful and that part of the ET's approach must be set aside; the Court indicated that this aspect may require remittal to the ET (the parties were invited to consider implications for any remittal).
• The Court accepted that, in the factual context of many standardised, regulated jobs supported by prescriptive training materials, an ET may lawfully treat employer training documents as the primary objective evidence of what the job required, subject to cogent contrary evidence.
• The Court confirmed that appeals against stage 2 determinations must be particularised: the EAT is entitled and obliged to limit appeals to specific factual determinations identified by the appellant (absent a challenge that the entire exercise is vitiated).
• No broader overriding new precedent was pronounced beyond applying established principles (the decision clarifies application of existing authorities to contexts with extensive employer training materials and confirms limits on ETs revisiting agreed facts).