J Abbey & Ors v Tesco Stores Limited & Anor
[2024] EAT 76
Tesco Stores Ltd v K Element & Ors
23 May 2024
[2024] EAT 83
Employment Appeal Tribunal
Tesco appealed several court orders in a huge equal pay lawsuit. The appeal court said the orders were fair, even though Tesco thought they were too demanding and time-crunched. The court prioritized a speedy resolution of the case, recognizing that thousands of workers deserved a timely outcome.
Key Facts
- •Appeal against case management orders in complex multi-claimant equal value litigation against Tesco.
- •Over 47,000 claimants involved.
- •Claims divided into tranches based on job roles.
- •Appeal concerns disclosure orders (standard and issues-based) relating to Tesco's material factor defence (MFD).
- •Dispute over whether MFD hearing should precede the final equal value hearing.
- •Tesco argues disclosure orders are duplicative, unnecessary, and have unrealistic timetables.
- •Claimants argue for a sequential approach to expedite the process.
- •Tesco's MFDs have been known since at least May 2021.
Legal Principles
Staged disclosure is permitted under the CPR, and tribunals have discretion in ordering disclosure.
CPR
Standard disclosure orders are commonplace and leave it to solicitors' judgment to determine obligations.
Digicel (St Lucia) Ltd. v. Cable & Wireless plc [2009] 2 All ER 1094
Tribunals must balance the need for sufficient time for disclosure against claimants' right to timely resolution.
Procedural rules permit sequential or simultaneous trial of issues; tribunals decide the order.
In equal pay claims, the burden of proof shifts to the employer after a prima facie case of discrimination is established.
Equality Act 2010, sections 69 and 136; BMC Software Ltd. v. Shaikh [2017] IRLR 1074
Claimants are not required to plead their case on discrimination in advance of particularised MFDs; this is a reply point.
Outcomes
Appeal on grounds 1 and 2 (disclosure orders) dismissed.
The tribunal's disclosure orders were within its discretion, pragmatic, and did not prevent Tesco from defending itself fairly.
Appeal on ground 3 (MFD hearing first) dismissed.
The decision to hold the MFD hearing before the final equal value hearing was not perverse and was a valid exercise of the tribunal's case management powers.
Appeal on ground 4 (claimants' pleading obligation) dismissed.
The tribunal was not bound to require claimants to plead their case on discrimination before particularised MFDs were provided; order 6 adequately addresses this.
Tesco's application for a stay dismissed as academic.
The application was contingent on the success of grounds 3 and 4, which were dismissed.