Supreme Court ends Tesco challenge over equal pay job facts

By Olivia Hart

The UK Supreme Court has refused Tesco permission to appeal a Court of Appeal ruling on how employment tribunals establish the facts of jobs in equal value assessments. The refusal ends Tesco’s challenge on that issue and leaves the May judgment intact. Leigh Day acts for 16,000 current and former Tesco shop workers in the wider litigation.

For employers, the immediate consequence is evidentiary: tribunals can use an employer’s own training materials and operational manuals when determining what employees are required to do. The ruling does not resolve Tesco’s wider pay dispute, but it removes Tesco’s ability to challenge the use of those records through the Supreme Court appeal route.

What does the Supreme Court’s refusal change?

Permission to appeal would have put the job-facts issue before the Supreme Court. Instead, the refusal leaves the Court of Appeal’s May judgment in place, including its confirmation that tribunals can rely on employer training and operational materials to determine what employees must do.

Leigh Day said the outcome should help equal pay claims proceed “fairly, proportionately and without unnecessary obstacles.”

The Court of Appeal judgment, handed down in May, addressed the approach employment tribunals should take when establishing the factual content of jobs in the equal value assessment process. It rejected Tesco’s challenge to the way the tribunal established the “job facts” for customer assistants and warehouse operatives.

It does not decide whether Tesco can justify paying its customer assistants less than its warehouse operatives.

Why did Tesco challenge use of its training materials?

At the heart of Tesco’s appeal was its attempt to stop the tribunal drawing on the retailer’s own training materials and operational manuals to evaluate the work required of those employees.

The Court of Appeal noted three features of Tesco’s operations:

• Tesco operated within a strictly regulated sector.
• The retailer used advanced digital stock tracking systems.
• It maintained detailed training materials to ensure consistent work standards across its store network.

Those details formed the setting for the dispute over permissible job-facts evidence. The Supreme Court’s refusal leaves the Court of Appeal’s treatment of those materials available for the continuing employment tribunal hearing.

Kiran Daurka, employment partner at Leigh Day, said:

“This is a significant outcome for the 16,000 Tesco workers we represent and brings Tesco’s challenge on this issue to an end. The courts have confirmed tribunals can rely on an employer’s own training and operational materials when determining what employees are required to do.”

“That will help ensure equal pay claims can be determined fairly, proportionately and without unnecessary obstacles.”

She added: “We remain focused on securing equal pay for our clients in the wider litigation.”

What remains before the employment tribunal?

The ongoing hearing concerns Tesco’s defence of paying its predominantly female store staff less than its mostly male distribution centre workers. Customer assistants work in stores; the comparison role is warehouse operative work in distribution centres.

Leigh Day’s lawyers argue that Tesco cannot lawfully rely on market rates to justify the pay gap. That argument remains part of the wider litigation; the Supreme Court decision addresses the evidence used to establish job facts, not a final ruling accepting or rejecting Tesco’s market-rate defence.

For employers, the practical effect is that internal job documentation becomes harder to dismiss as background material. Training materials and operating manuals can help tribunals identify what employees are required to do, which makes their accuracy and scope relevant in equal value proceedings.

Tesco had been approached for comment.

The continuing employment tribunal hearing will test Tesco’s defence under the surviving ruling, while Leigh Day remains focused on securing equal pay for the workers it represents.