Tesco Stores Ltd v K Element & Ors
[2024] EAT 83
J Abbey & Ors v Tesco Stores Limited & Anor
16 May 2024
[2024] EAT 76
Employment Appeal Tribunal
A huge equal pay lawsuit against Tesco involved many claimants. A judge decided to wait for the main part of the case to finish before dealing with other claims. Another judge also limited the information those other claimants could get. A higher court agreed with these decisions saying the judge had the power to do so and had made a fair decision in a complex situation.
Key Facts
- •Large-scale equal pay litigation against Tesco involving over 47,000 claimants.
- •Claims divided into tranches based on job roles, with sample claimants selected.
- •KP claimants (represented by KP Law) appealed two case management orders (CMOs) by Employment Judge Hyams.
- •First CMO: Refusal to lift the stay on KP claims to require Tesco to file responses.
- •Second CMO: Decision on document disclosure to KP claimants, limiting it to documents submitted to the ET.
- •Appeals challenged the ET's exercise of discretion in case management of the complex litigation.
Legal Principles
Employment Tribunals have exceptionally wide powers in case management.
O’Cathail v Transport for London [2013] ICR 614 CA
Tribunal decisions can only be questioned for error of law, including errors of legal principle or perversity.
O’Cathail v Transport for London [2013] ICR 614 CA
The overriding objective of the ET Rules is to deal with cases fairly and justly, considering proportionality, avoiding unnecessary formality and delay, and saving expense.
Employment Tribunal (Constitution and Rules of Procedure Regulations) 2013, rule 2
ETs may make case management orders at any stage, and interim orders are typically made at private preliminary hearings.
Employment Tribunal (Constitution and Rules of Procedure Regulations) 2013, rules 29, 41, 56
Staying claims pending determination of sample claims is an established case management practice in large-scale equal pay claims.
Ashmore v British Coal Corporation [1990] 2 QB 338 CA
Re-litigating issues already determined in sample claims is likely to lead to a strike-out.
Ashmore v British Coal Corporation [1990] 2 QB 338 CA
In group litigation, the right to be represented by solicitors of choice is qualified by the need for efficient case management.
Lungowe v Vedanta Resources PLC [2020] EWHC 749
A perversity challenge requires an overwhelming case that the tribunal reached a decision no reasonable tribunal would have reached.
Yeboah v Crofton [2002] IRLR 634
Case management decisions will only be overturned if there is an error of principle, irrelevant factors considered, relevant factors omitted, or perversity.
Aird and ors v Asda and ors [2024] EAT 52
Outcomes
Appeals dismissed.
The ET permissibly exercised its discretion in case managing the complex litigation. The judge considered relevant factors and struck a fair balance between the interests of the stayed and active claimants, avoiding unnecessary expense and delay. The KP claimants failed to demonstrate error of law or perversity.