Equal pay claims are expensive, complex, and can run 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.
What’s an equal pay claim?
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 of whether the work is of comparable value can often be the real battle.
What is happening in the ongoing Tesco claim?
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 best evidence of what each job actually required. The Court of Appeal (CA) upheld that approach.
The CA confirmed that “work,” for equal pay purposes, is what the employer contractually requires – not simply what employees happen to do day-to-day.
3 Key takeaways for HR
Act early:
- 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.
- Consider whether a strong documentary picture reduces the need for costly live witness evidence further down the line.
Further reading
- The Equality Act 2010 s65 – GOV.UK
- Tesco v element & Others – appeal against EAT order
- Equal Pay guidance – Equality and Human Rights Commission
- Equal Pay – ACAS
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