Tesco's appeal over expert evidence in equal pay case

Background

The Employment Appeal Tribunal (EAT) recently delivered a decision in a high-profile equal pay case involving Tesco Stores Limited and over 50,000 claimants. The case, which has been ongoing since 2018, centres on whether the work of Tesco employees in stores is of equal value to that of employees in distribution centres, and whether differences in pay can be justified by material factors.

The Appeal

Tesco appealed against a decision by Employment Judge Hyams, who refused Tesco permission to introduce expert economic evidence to support its material factor defence. Tesco argued that expert evidence was necessary to address complex economic issues related to labour markets and the consequences of potential pay equalisation.

Legal Context

The appeal was heard by His Honour Judge James Tayler, who examined whether the Employment Tribunal had erred in law by denying Tesco's request to adduce expert evidence. The legal principles governing such applications require that expert evidence be restricted to that which is reasonably required to resolve the proceedings, as outlined in CPR 35.1 and Rule 10 of the Equal Value Rules.

Arguments and Submissions

Tesco's legal team argued that expert evidence was crucial for understanding the dynamics of labour markets and the economic impact of pay equalisation. They contended that factual evidence alone would not suffice to address these complex issues. The claimants, represented by Leigh Day and Harcus Sinclair, opposed the introduction of expert evidence, arguing that it was unnecessary and would lead to increased costs and delays.

Employment Tribunal's Decision

Employment Judge Hyams had concluded that expert evidence was not reasonably required, as the issues could be addressed through factual evidence from Tesco's senior staff. He also questioned the relevance of economic evidence to the material factor defence, particularly regarding the impact on the public interest and competition.

EAT's Ruling

Judge Tayler found that the Employment Tribunal had erred in its approach by focusing on the relevance of the evidence rather than its necessity. He noted that the Tribunal had misunderstood the nature of the issues at hand, particularly the distinction between the consequences of a judgment and the period relevant to the claims.

Outcome

The EAT allowed the appeal, setting aside the Tribunal's decision and remitting the application for expert evidence to be reconsidered by the same Employment Tribunal. Judge Tayler emphasised the need for the Tribunal to apply the correct legal test and consider all relevant factors, including cost and potential delay.

Implications

This decision highlights the complexities involved in equal pay litigation and the challenges of managing large-scale cases. It also underscores the importance of adhering to procedural rules and ensuring that expert evidence is appropriately considered in complex legal disputes.

Learn More

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