Tesco Stores v Element: Defining “work” and reshaping the evidential landscape in Equal Value claims

Equal pay claims are expensive, complex, and have a habit of running for years. A recent Court of Appeal decision involving Tesco is a timely reminder that the evidence you already have on file could be more important than you think.

The basics

An equal pay claim arises where an employee of one sex is paid less than a comparator of the opposite sex, and both are doing the same work, “like work,” or work of equal value. The employer can defend the claim by showing the pay gap is down to a genuine material factor unconnected to sex – but that defence only comes into play once the claimant has established that the work is of comparable value in the first place. That threshold question is often where the real battle is fought.

What happened in Tesco?

Around 34,000 predominantly female store workers claimed their work was of equal value to that of male colleagues in Tesco’s distribution centres. At a 36-day hearing, the employment tribunal set aside the detailed witness evidence and job descriptions provided by both parties, and focused instead on Tesco’s own training manuals as the most objective evidence of what each job actually required. The Court of Appeal upheld that approach.

The Court confirmed that “work,” for equal pay purposes, is what the employer contractually requires – not simply what employees happen to do day-to-day.

What this means for HR

• If you are facing, or want to prepare for, an equal pay challenge, act early:
• Consider whether a strong documentary picture reduces the need for costly live witness evidence further down the line..
• Audit your training manuals and standard operating procedures now. They may become a central exhibit.
• Assess whether the roles in question are tightly regulated and documented. If they are, that documentation is likely to carry significant evidential weight.

About Jon Dunkley

Jon Dunkley is a Partner at Wollens and heads up the firm’s Regulatory Department. Based at our North Devon office, Jon is a highly experienced solicitor with a broad commercial and regulatory practice, supporting businesses, professionals and senior employees across a wide range of legal issues.

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Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

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