Transcription

• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing the Court of Appeal judgment in the latest installment of the long-running equal pay litigation case of Tesco Stores Ltd and Element and others. Due to the size and complexity of these equal pay claims, the Employment Tribunal has split the issues into several hearings. Some five years after the claims were initially commenced, the Tribunal held a 36-day hearing to determine the key facts that had been agreed between the parties and those on which the parties could not agree. Following this hearing, to everyone's surprise, the Tribunal issued a decision to the effect that it had not determined any of the disputes identified by the parties in advance of the hearing. Instead, it ordered the parties to produce new job descriptions and tables recording the areas of disputes, ruling that the focus of those documents and tables should be Tesco's detailed training documents for the respective roles. Tesco appealed, arguing that the Tribunal had misunderstood the meaning of work within the equal pay provisions, had wrongly relied on its training materials and had failed properly to determine the factual disputes. The Court of Appeal dismissed the bulk of Tesco's appeal and approved the Tribunal's approach to determining what work the claimant employees did. The court noted that the work of the claimants and comparators was both highly regulated and heavily standardised. The tribunal had recognised that Tesco's detailed training materials explain in great and objective detail what work Tesco requires its staff to do. The tribunal did not err in law in deciding that these training materials, rather than the witness statements, were a more reliable starting point for its factual determinations about the nature of the work staff were required to perform. The Tribunal had rightly acknowledged that the training materials were not decisive and assumptions made based on them could be displaced by cogent contrary evidence. However, the court did uphold one limited ground of appeal, holding that the tribunal had no power to revisit facts that the parties had already agreed between themselves. The decision confirms that where there is detailed objective material, such as training manuals or standard operating procedures, which explains what the day-to-day work responsibilities of representative groups of employees are, Tribunals can place significant weight on these objective materials in determining the nature of the work performed by the respective comparators. Look out for further episodes in this series to stay up to date on all things HR and employment law related.