Tesco Equal Pay Case Returns to Tribunal After Reconsideration Errors Found
Tesco Stores Ltd faces further scrutiny as the Employment Appeal Tribunal remits key aspects of an equal pay case due to procedural errors.
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The long-running equal pay dispute involving Tesco Stores Limited and numerous claimants has been sent back to the Employment Tribunal for further reconsideration. The Employment Appeal Tribunal (EAT) found that the Employment Tribunal made several errors in its analysis of reconsideration applications, impacting the progress of the case.
Key Procedural Errors Identified
His Honour Judge James Tayler, overseeing the appeals, highlighted that the Employment Tribunal failed to correctly follow the mandatory stages for reconsidering its decisions. In several instances, the tribunal issued 'prospects dismissals' where a 'permission to proceed' decision should have been made, or vice versa.
Specifically, the EAT noted that the initial decision on a reconsideration application should be a binary one: either dismiss it as having no reasonable prospect of success, or grant permission to proceed. Only after this initial stage should other parties be invited to make representations, and further procedural steps be taken.
Specific Issues Remitted
Several determinations made by the Employment Tribunal during the reconsideration process were challenged. These included:
- Tesco's application regarding 'Physical Effort': The EAT found it was an error to issue a prospects dismissal when the tribunal clearly felt the matter merited further consideration. This has been remitted for a permission to proceed decision.
- Tesco's application regarding 'Manual Handling of Cages': While a permission to proceed decision was made, the EAT criticised the tribunal's reasoning, suggesting it should have issued a permission to proceed notice and allowed the claimants to make full submissions on issues such as finality and the introduction of new evidence. This is also remitted.
- Claimants' application regarding Mrs Worthington: A prospects dismissal was given, but this was not opposed by Tesco. The EAT has substituted a permission to proceed decision.
- Claimants' application regarding 'Training Videos – Evaluative Language': The EAT found it was perverse to issue a prospects dismissal concerning the use of potentially evaluative language from training videos. This has been remitted for a permission to proceed decision.
- Claimants' application regarding Mr Hornak: The EAT identified that the tribunal's reasoning on the differing treatment of risks for comparators versus claimants was arguable. A prospects dismissal was deemed perverse, and the matter is remitted for a permission to proceed decision.
Path Forward for the Tribunal
Judge Tayler emphasised the importance of adhering to the strict procedural rules governing reconsideration applications. He stressed that fact finding must be completed as part of the Stage 2 process and should not be deferred to the final hearing. The appeals are remitted to the Employment Tribunal to follow the mandatory stages correctly once the current stay on proceedings is lifted.
This judgment underscores the need for careful adherence to procedural rules, particularly in complex and protracted litigation such as equal pay claims.
The judgment is: Tesco Stores Ltd v Ms K Element & others [2026] EAT 33
