Court of Appeal Dismisses Tesco’s Challenge to ET’s Training-Document Approach in Mass Equal Pay Litigation

The Court of Appeal has largely upheld the Employment Appeal Tribunal’s decision in Tesco Stores Ltd v Ms K Element & Ors [2026] EWCA Civ 580, dismissing Tesco’s two appeals on all but one ground and endorsing the ET’s reliance on detailed training documentation as the primary evidential basis for determining the “work” of claimants and comparators in mass equal pay proceedings.

Keith Bryant KC and Stephen Butler acted for the Harcus claimants (instructed by Harcus Parker Employment) in this landmark appeal, heard over three days in March 2026 before Nugee LJ, Elisabeth Laing LJ and Sir Nicholas Underhill. The claimants are store-based employees of Tesco Stores Ltd, mostly women, who compare their work with that of predominantly male employees in Tesco’s distribution centres. The claims have been said to be worth several billions of pounds, with approximately 34,000 claimants in the relevant group.

The two appeals arise from decisions made by the ET after a stage 2 equal value hearing which lasted 36 days between March and May 2023. In its first judgment (ET1), the ET declined to make any final determination on the basis of the materials presented and required the parties to produce fresh “equal value job descriptions” (EVJDs) based on the training documentation. However, the ET subsequently rowed back on this approach. In its second judgment (ET2), it purported to resolve the disputed issues in eight very lengthy appendices based primarily on the training materials. The ET has since produced 14 appendices containing “statements of work” for each claimant and issued two further reconsideration judgments.

Appeal 1

The first appeal concerned a preliminary decision of the EAT that, other than in respect of general grounds of appeal which would undermine the entire ET judgment, Tesco was limited on those grounds of appeal relating to factual disputes about the work done by claimants and/or their comparators to the specific ‘examples’ given in the notice of appeal. The Court of Appeal agreed with the EAT, finding that where an error of law identified in grounds of appeal led to a wrong factual determination, each such factual determination had to be specified in the grounds of appeal.

Appeal 2

Ground 1: The Approach to Identifying “Work”

The Court of Appeal dismissed ground 1. The essential question on this general ground of appeal was whether, when considering the “work” of the claimants and their comparators for the purposes of sections 64 and 65 of the Equality Act 2010, the ET was wrong to focus on the supposed generic requirements of their jobs, as shown by the training materials, rather than on what they did as individuals on a day-to-day basis.

The Court of Appeal held that Tesco’s case was based on a false dichotomy. The ET had not treated the training materials as decisive, and it did not err in law in deciding that they were a more reliable starting point for its factual determinations than the parties’ witness statements. Beal v Avery Homes (Nelson) Limited [2019] EWHC (QB) 1415 and Shields v E Coomes (Holdings) Limited [1978] 1 WLR 1408 could be distinguished, as they did not have the equivalent documents to

Tesco’s training materials, which set out in detailed and objective terms what Tesco required of claimants and comparators in what was a highly regulated environment. These documents would not tell the whole story, and evidence was still necessary as to the context into which particular tasks fit, including how frequently they fell to be performed; and subjective evidence as to the demands might also be of some value. But the ET was fully entitled to treat the documents in question as the most objective evidence of the actual content of the work.

The EAT had reached the same conclusion for broadly similar reasons. Despite stating that the ET erred in law in finding Prest v Mouchel Business Services Limited [2011] ICR 1345 as relevant, that error was immaterial if the ET’s understanding of “work” was right – and the Court of Appeal considered that it was. Other misdirections by the ET, such as its unconvincing attempt to distinguish Shields in its second judgment, were nevertheless immaterial because the ET correctly understood what “work” meant in this context.

Ground 2: Incorporation of Training Documents

The Court of Appeal upheld the EAT’s finding that, in relation to the relevant training materials and the relevant part of the EVJD, “it was possible to marry the two up” by putting the documents side by side. The fact that this was a difficult exercise did not show that the ET had erred in law. It was open to the ET to invite the parties to do the work which it considered necessary and which they had not done. The Court of Appeal also rejected the premise that the ET’s judgment was a final determination, emphasising that it was a staging post. It noted the EAT’s view that this approach was doable, albeit difficult.

Ground 3: Departure from Agreed Facts

The appeal was allowed on ground 3. The ground was considered academic insofar as the ET accepted that it had got it wrong in its first reconsideration judgment. However, the Court of Appeal upheld Tesco’s argument that neither the availability of, nor successful resort to, an application for reconsideration is in principle a reason for holding that the ET can revisit agreed facts. It held that the EV Rules treat agreed facts and determined facts as mutually exclusive, and that the ET has no power to revisit agreed facts. If it has no power to do so, it should not make such findings in the first place, and the parties should not be put to the time and expense of seeking reconsideration.

Ground 4: Relevance of Training Actually Received

The Court of Appeal dismissed ground 4. The issue was whether, as a matter of law, it was necessary for the ET to have distinguished between the content of the training documents and the training which the claimants and the comparators had actually received. The EAT had found that it was not for it to interfere with findings of fact made by the ET, which in this case was that the training materials were relevant to the job. The ET decided that the best way to make determinations was to base them on the training documents, unless there was cogent evidence to the contrary, on the basis that those documents described the work. Accordingly, the training which the comparators and claimants had actually received was not a necessary focus at this stage of the analysis.

The Court of Appeal recognised that authorities show that training and qualifications are relevant to the demands of the work. The question, however, was whether this required express findings about the exact training each job holder had received. The Court of Appeal agreed with the claimants’ submission that it could be assumed, in this regulated and prescribed context, that the job holders had received the training described in the materials, and express findings were not an essential component of the necessary findings.

Sir Nicholas Underhill’s Additional Observations

Sir Nicholas Underhill, agreeing with Elisabeth Laing LJ’s judgment, went on to criticise, as an aside, the hyper-granular approach adopted in mass equal pay litigation, whereby parties draft, evidence, and critique EVJDs in excessive detail, contrary to the overriding objective and making the task of the IEs and objective evaluation significantly more difficult.

The proceedings will now continue under the EAT’s disposal order, with a final decision on the claims still some way off.

Judgement

Read the full judgement here.

Find Out More

Keith Bryant KC’s wide experience includes advising and acting for commercial and public sector organisations, trustees, government departments and agencies, individuals and unions. His practice is focused on pensions law and employment law and the areas of overlap between the two. Keith is regularly instructed in the High Court (Chancery and King’s Bench Divisions, including Commercial Court and Administrative Court), the Employment Appeal Tribunal and the Appellate Courts, both in England and Wales and also in Northern Ireland.

 To find out more about Keith, contact Nick Levett on +44 (0)20 7427 4908

Stephen Butler is a “tactically astute” barrister who practises in commercial and civil litigation and arbitration.  Stephen has a busy employment law practice in both the civil courts and the Employment Tribunal.  He is often instructed for complex multi-day hearings against counsel of often significantly greater call. His appellate practice encompasses the Court of Appeal, Employment Appeal Tribunal and High Court.

To find out more about Stephen, contact Nick Levett on +44 (0)20 7427 4908 or Mark Gardner on +44 (0)20 7427 4909 

News 14 May, 2026