Tesco employees set to appeal equal pay ruling

28 Oct 2020

Employees at supermarket chain Tesco plan to appeal a decision made by an Employment Tribunal that found that a job evaluation study, carried out by Tesco’s reward managers in 2014, was unreliable.

The study found that 22 hourly-paid shop floor roles were equivalent to three higher-paid distribution centre roles, but Tesco decided not to implement its findings. Shop floor employees, in response, made the decision to bring equal value claims against Tesco.

Had the ET found in favour of the employees, thousands of store employees would have been entitled to base their claims on the study that said their role was equal to those in the distribution centre.

The difference in hourly pay for a store employee and those in a distribution centre can range from £1.50 to £3 an hour, which could mean that the average worker could be entitled to in excess of £10,000 for up to six years’ back pay, according to law firm Leigh Day, which is representing the 3,500 store employees and plans to lodge an appeal before Christmas.

Solicitor Lara Kennedy said:

“This is not the end of the road for this argument, we still believe fairness can win. The Employment Tribunal had to consider complex case law which has developed over the last 50 years and has, unfortunately, made it more difficult for women to rely on job evaluation studies created by their employers to bring these types of equal pay claims.

“We were right to bring this aspect of the claim to the Employment Tribunal. It cannot be legally right that Tesco is allowed to ‘mark its own homework’. It is our belief that the only reason shop floor workers have not been paid equally is because, despite their own study telling them otherwise, Tesco see the work done in stores, typically by women, as lesser in value than that done in distribution centres by their mostly male colleagues.”

A Tesco spokesperson said:

“We work hard to ensure that we reward our colleagues fairly for the jobs they do. The pay in our stores and in our distribution centres is the same for colleagues doing the same jobs regardless of gender. There are fundamental differences between the jobs in our stores versus those in distribution centres. These differences, in skills and demands, as well as the different markets in which they operate, do lead to variations in rates of pay between stores and distribution centres, but these are not in any way related to gender. We will strongly defend these claims.”

By law, men and women must get equal pay for doing 'equal work'. There are three kinds of equal work – like work, work rated as equivalent, and work of equal value.

Like work

There are two stages involved in determining ‘like work’.

You need to assess whether the woman and her male comparator are employed in work that is the same or of a broadly similar nature. This involves a general consideration of the demands of the work, such as the effort, knowledge and skills needed to do it.
If the work is broadly similar you then need to assess whether any differences between their work are of practical importance, having regard to:

the frequency with which any differences occur in practice, and
the nature and extent of those differences.

To justify any difference in pay or other terms, the employer must be able to demonstrate that there are significant differences of practical importance in the work actually performed.

Work rated as equivalent

A woman’s work is rated as equivalent to a man’s if a fair job evaluation scheme gives an equal value to the work in terms of the demands made on the workers, including effort, skill and decision-making.

Work is rated as equivalent if the jobs have been scored the same number of points or fall within the same job evaluation grade. The focus is on the demands of the job rather than the nature of the job overall. Seemingly quite different jobs may actually be equivalent when properly job evaluated.

Work of equal value

The third way a woman can claim ‘equal work’ with a man is if she can show that her work is of equal value to his, in terms of the demands made on her. This means that the jobs done by a woman and her male comparator are different, but can be regarded as being of equal value in terms of the demands they impose such as the: