In a recent case called Tesco Stores v Element and Others, around 34,000 predominantly female store workers brought equal pay claims against Tesco, arguing that their work was of equal value to that of male comparators working in distribution centres.
At a 36-day fact-finding hearing, the Employment Tribunal rejected the detailed witness evidence and job descriptions prepared by the parties regarding the ‘work’ and, instead, focused primarily on Tesco’s own training manuals – which it treated as the best objective evidence of what the jobs actually required.
The Court of Appeal was required to consider whether this approach was correct. The central question in the case was what ‘work’ means for the purposes of equal pay claims.
The Court of Appeal held that:
- ‘Work’ is essentially the product of the wage/work bargain – it is what the employer requires the employee to do, not simply what they happen to do from day to day.
- In a workplace where jobs are highly regulated and prescribed in granular detail, the Employment Tribunal was entitled to treat the training materials as the most reliable starting point.
Therefore, because the Employment Tribunal had correctly remained open to cogent evidence that those documents did not reflect reality, it did not make the mistake of treating the training materials as decisive.