The Court of Appeal has confirmed that tribunals may use training documents to identify the requirements of roles in equal pay claims. The judgment is likely to be particularly relevant for employers operating standardised and centrally managed workforces.
Background
In 2018, thousands of predominantly female employees working in Tesco stores launched employment tribunal claims against the supermarket, stating that their work was of equal value to their mainly male counterparts working better-paid roles in Tesco’s distribution centres. The claimants sought equal pay with their male colleagues.
By 2023, the claim had progressed to a stage 2 hearing. Before the hearing, the parties must provide the tribunal with an agreed statement setting out job descriptions for the claimants and their comparators and a list of disputed facts. At the hearing, the tribunal must resolve the disputed facts outlined by the parties so that an independent expert can determine if the roles are of equal value.
Employment Tribunal decision
The Employment Tribunal (ET) departed from its usual approach and declined to settle the disputed facts outlined by the parties during the stage 2 hearing. Instead, it ordered the parties to provide new job descriptions and a list of disputed facts, based primarily on Tesco’s training documents. This was on the basis that these materials served as the best evidence for the demands of each job, given the highly detailed and prescriptive nature of the documents.
The respondent appealed against this decision, contending that the ET must consider the actual day-to-day duties performed by employees, rather than the broad role requirements contained in training materials. Following the Employment Appeal Tribunal’s decision to uphold the ET’s order, Tesco appealed to the Court of Appeal on the grounds that the ET had taken the wrong approach to identifying the claimants’ work.
Court of Appeal findings
Importantly, the court was not deciding whether the roles were in fact of equal value, but rather what evidence the ET could rely upon when identifying the requirements of the relevant jobs. The Court of Appeal upheld the ET’s approach, observing that the legislation focuses on the requirements of an employee’s job, not their day-to-day activities. The court noted that Tesco operates in a highly regulated sector, meaning that the training materials were sufficiently comprehensive and prescriptive to provide the strongest and most reliable evidence of the demands of the relevant jobs.
The court rejected Tesco’s argument that the ET should have considered what training the claimants had actually received. Pointing again to the regulated nature of the claimants’ work, the court concluded that it was a reasonable assumption that the claimants had received the training outlined in the documents – the training materials were not merely guidance documents, but rather prescriptive operational documents evidencing how employees carried out their roles.
Finally, the court held that using the training materials to identify the requirements of the claimants’ jobs was in line with the court’s overriding objective, as using these neutral materials would avoid a lengthy factual dispute between the parties.
Implications for employers
The decision is significant from an evidential and procedural perspective, particularly in large equal pay claims involving standardised roles and centrally managed operations. It confirms that tribunals may place substantial weight on training materials and operational documentation when identifying the requirements of a role, especially where those materials are detailed and prescriptive.
While the judgment does not alter the legal test for equal value claims, it may make it easier for claimants to establish a consistent evidential basis for comparing roles. Employers may therefore face greater scrutiny of internal documents that describe how employees should carry out work in practice.
The decision also highlights the importance of ensuring that training materials, job descriptions and operational procedures accurately reflect the realities of the role. Documents originally created for compliance or operational purposes may later become significant evidence in equal pay litigation.
Employers operating highly regulated or standardised working environments may wish to review whether internal documentation consistently reflects:
- the actual requirements of the role;
- the level of responsibility and decision-making involved; and
- how work is carried out across different parts of the business.
The judgment may also encourage tribunals to adopt more streamlined and proportionate approaches in large-scale equal pay litigation where extensive factual disputes would otherwise create significant cost and delay.
