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In this long-running equal pay claim against Tesco supermarket, the Employment Appeal Tribunal was asked to consider whether expert evidence about a material factor defence should have been allowed to be heard. Listen along to find out what happened!

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Transcription

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  Today, in the Lefebvre HR and Employment Law podcast, we're discussing the Employment Appeal Tribunal's judgment in the case of Tesco Stores Ltd and Element and others, in which the Employment Appeal Tribunal was asked to determine whether particular expert evidence could be heard in an equal pay claim. In an equal pay claim, an employer may seek to rely on a material factor other than sex to justify paying male and female comparators differently. The procedural rules governing equal pay claims state that the Employment Tribunal may only consider expert evidence if this is reasonably required to resolve the case. The Employment Appeal Tribunal has recently considered what the correct legal test is for expert evidence on an employer's material factor defence. The background to the dispute is a large equal pay claim involving over 5,000 employees against a leading supermarket, in which mainly female store workers are seeking to compare their pay to mainly male distribution workers who receive a higher rate of pay. The employer relies on a material factor other than sex to justify the pay differential and applied for permission to introduce expert evidence on labour market conditions, including the fact pay was negotiated through two separate collective bargaining agreements and the different cost of labour for both groups. Its need to keep its labour costs low and the impact an increase in the store workers pay would have on the employer's business and the the wider retail market. The Employment Tribunal refused this application but the Employment Appeal Tribunal allowed the employer's appeal. Firstly, it found that the Tribunal had misapplied the legal test for allowing expert evidence. It had wrongly focused on whether the expert evidence was relevant to the material factors put forward by the employer to explain the pay disparity when the true test was whether the expert evidence was reasonably required to assess the issues and resolve the claim. The tribunal had failed to properly consider the balance between the helpfulness the expert evidence would have in resolving the case on the one hand and the costs and potential delays allowing expert evidence would have on the other. Secondly, the tribunal had misunderstood the employer's arguments about the relevance of the proposed expert evidence on the consequences of the employer paying its store-based employees more. The tribunal had misunderstood this to be essentially an irrelevant argument by the employer about the future impact that an equal pay ruling would have on the market. those employed in it and shoppers. In fact, the employer was not relying on the wider public interest, such as what the claimants winning their case would mean for the cost of living, but rather on its historical justification for the pay differential between the two groups of staff. This error in understanding the employer's consequences arguments had led the tribunal to wrongly dismiss the relevance of the economic evidence it sought to rely on. The case has been sent back to the same tribunal for it to reconsider the admissibility of the expert evidence. Look out for further episodes in this series to stay up to date on all things HR and employment law related.