Tesco Equal Pay Claim: Tribunal Overturns Decision on Expert Evidence
The Employment Appeal Tribunal has overturned a ruling preventing Tesco from presenting expert economic evidence in its ongoing equal pay battle with thousands of employees.
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Tesco's Equal Pay Defence Strengthened as Tribunal Allows Expert Evidence
The long-running equal pay dispute between Tesco and over 50,000 claimants has taken a new turn. The Employment Appeal Tribunal (EAT) has overturned an Employment Tribunal decision that had refused Tesco permission to present expert evidence related to its 'material factor defence'.
The original dispute centres on whether the work of Tesco shop staff, predominantly women, is of equal value to that of distribution centre (DC) workers, typically men. Claimants, represented by Leigh Day and Harcus Parker, argue they have been unfairly paid less for work of equal value.
The 'Material Factor Defence' and Expert Testimony
Tesco argues that any pay differences are due to 'material factors' unrelated to gender discrimination. These factors include variations in collective bargaining agreements, labour market conditions, and the need to maintain competitive labour costs.
Tesco sought to introduce expert economic evidence to support this defence, specifically concerning:
- The relevant labour markets for store and DC staff, including market prices and competitiveness.
- The potential consequences of increasing store staff pay, considering the impact on competitiveness, stability, and stakeholders.
Original Decision Flawed, Says EAT
Employment Judge Hyams initially denied Tesco permission, concluding that expert evidence was not relevant. The EAT, however, found that the Employment Judge had misunderstood Tesco's arguments, incorrectly focusing on the consequences of a hypothetical judgment against Tesco rather than the actual material factors during the period in question.
His Honour Judge James Tayler, presiding over the EAT, stated that Employment Judge Hyams had “erred in law in finding against Tesco on the basis that the Consequences Issue was irrelevant to determining the claims.”
Remittal to Employment Tribunal
The EAT has remitted the decision back to the Employment Tribunal to be reconsidered. The Employment Tribunal must now apply the correct legal test, considering whether expert evidence is 'reasonably required' to resolve the proceedings. It must weigh the potential assistance of the expert evidence against factors such as cost and delay.
This decision does not guarantee that Tesco will ultimately be allowed to present expert evidence. However, it does provide Tesco with an opportunity to strengthen its defence in this complex and high-stakes equal pay litigation.
Read the entire judgement here: Tesco Stores Ltd v Ms K Element & Ors (All Claimants represented by Leigh Day and Harcus Parker) [2025] EAT 26
