Tesco Stores Ltd vs Ms K Element & Others

This case concerned an appeal by Tesco Stores Ltd against case management orders in complex multi-claimant equal pay litigation involving over 47,000 claimants.

TLDR:

• Tesco challenged two disclosure orders and the sequence of hearings.
• The tribunal's orders were upheld, promoting timely resolution of the claims.
• The case impacts thousands of female shop-based employees claiming equal pay.

The underlying claims form part of long-running equal pay litigation, pursued mostly by female shop-based employees against Tesco Stores Ltd. The claims, managed under the title of the Element multiple, involve over 47,000 claimants and were commenced in February 2018.

In the first two grounds of appeal, Tesco challenged two disclosure orders requiring standard and issues-based disclosure by specific dates. In the third ground, Tesco sought to challenge the tribunal's decision to hold a hearing on material factor defence (MFD) issues before the final equal value hearing. The fourth ground of appeal concerned the tribunal's decision not to require the claimants to plead their case on sex discrimination.

The tribunal had made detailed case management orders following an oral hearing in March 2024. These included directions for standard disclosure by 31 May 2024 and issues-based disclosure by 2 December 2024. Tesco argued that these orders were duplicative and unnecessary, but the tribunal found them to be pragmatic and sensible.

The tribunal also directed that a separate hearing on MFD issues should take place in September and October 2025, before the final equal value hearing. Tesco contended that this sequence was unrealistic and would lead to unnecessary costs, but the tribunal determined that it would be in the interests of justice to proceed in this manner.

Regarding the fourth ground of appeal, Tesco argued that the claimants should be required to plead their case on sex discrimination. The tribunal, however, found that such an obligation should arise once Tesco had identified the market forces resulting in pay inequality. The tribunal's orders provided for the claimants to respond to Tesco's case on MFDs by 28 June 2024.

The Honourable Mr Justice Kerr dismissed the first and second grounds of appeal, finding that the tribunal's disclosure orders were within its discretion. The third and fourth grounds did not raise any arguable error of law and were not allowed to proceed to a full hearing.

Legal representatives: Paul Epstein KC and Mathew Purchase KC (instructed by Freshfields Bruckhaus Deringer) for the Appellant, Keith Bryant KC and Stephen Butler (instructed by Harcus Parker) for the Respondents (Harcus Parker Claimants), Sean Jones KC and Rachel Barrett for the Respondents (Leigh Day Claimants).

Judicial Panel: The Honourable Mr Justice Kerr

Case Citation Reference: [2024] EAT 83