Update in equal pay case
The Court of Appeal has upheld the Employment Appeal Tribunal’s decision in
Tesco Stores v Element & Ors, dismissing Tesco’s appeals on all but one ground.
Around 34,000 Tesco store workers, mostly women, brought equal pay claims, arguing that their work was of equal value to that performed by male employees working in Tesco distribution centres.
Tesco appealed following two related hearings before the Employment Appeal Tribunal (EAT), the second of which was a 36-day fact-finding hearing. In the second appeal, the EAT allowed eight grounds of appeal in full and two in part. A final decision on the claims is still a long way off, and the decision does not determine whether Tesco has breached equal pay law, nor whether the store workers’ roles are in fact of equal value to those in distribution centres. Those issues remain to be determined.
The workers’ witness evidence and job descriptions had been rejected by the employment tribunal in favour of Tesco’s training manuals. In Tesco’s appeal to the Court of Appeal, the Court was asked to consider “whether the ET was entitled to decide that Tesco’s training documents were, in this case, the key to its task”.
Tesco argued that the ET had erred by assessing what the jobs required in theory (relying on training manuals and job descriptions) rather than what the employees actually did in practice.
The Court held that:
“Work” is essentially the product of the wage/work bargain: it is what the employer requires the employee to do, not simply what they happen to do from day to day.
The Court further held that, in a workplace where jobs are highly regulated and prescribed in granular detail, the tribunal was entitled to regard the training materials as a reliable starting point. However, the tribunal had remained open to compelling evidence that the documents did not reflect the reality of the work performed, and therefore had not treated the training materials as determinative.
Posted on 05/26/2026 by Ortolan
