Sometimes, it can be problematic for equal pay claimants to get hold of the information that they need to substantiate their claim. In Tesco Stores Ltd v Element and ors, the Employment Appeal Tribunal (EAT) held that as long as the claim has a “reasonable prospect of success”, then a request for disclosure of information by claimants should be granted by tribunals.
Approximately 9,000 Tesco store-based employees or former employees (who were predominantly women) brought equal value claims, comparing themselves with workers based in Tesco’s distribution centres (who were predominantly men). The women claimed that the men enjoyed more favourable terms and conditions.
In its defence, Tesco relied on a number of material factors which it said gave rise to any differences in pay. These included differences in the arrangements for determining pay as between stores and distribution centres, differences in labour market conditions and the market price for various types of labour, as well as the need to keep retail and distribution costs within efficient levels. Because the claim was not sufficiently particularised (there were no named comparators) Tesco said it was unable to say anything more about comparability.
Following an application for disclosure of information by the claimants, Tesco provided some material about job titles and job descriptions for “warehouse operative” roles which the claimants dismissed as being “effectively useless”. They therefore made applications for further disclosure relating to the pay of comparators, what work they did and potential material factor defences. The company objected to the application on the ground that it was a “fishing expedition”.
The tribunal disagreed, holding instead that the information that had been requested was relevant to the claim although not all of it was necessary at this stage. It therefore ordered Tesco to disclose some of the information requested.
Tesco appealed against the judgment, arguing that the claims did not disclose a prima facie case (in other words, there was no obvious case to answer) that would warrant such orders being made and was nothing more than an impermissible “fishing expedition” to allow the claimants to formulate claims that did not exist as yet.
Rejecting the appeal, the EAT held that an equal pay claim already existed which referred to comparators who had been identified as male employees working in distribution centres. Although Tesco objected to the broad nature of the claim in the sense that it was not sufficiently particularised, that did not mean that a claim did not exist.
On the contrary, the pleaded case was clear in that the claimants were arguing that their work was equal to the male employees in distribution centres and that there was a disparity in pay. Far from requesting information for the purposes of finding a claim, they were asking for information in order to narrow and particularise the existing one.
The EAT also rejected Tesco’s contention that the term “prima facie” should be interpreted as meaning a requirement to meet an evidential threshold (which Tesco argued had not been met). Instead, the tribunal had used the term to indicate that the claim had a reasonable prospect of success. Firstly, the essential ingredients of an equal pay claim - equal work and unequal pay between claimants and their comparators - were present; and secondly, there was a reasonable basis for asserting a difference in pay. As such, the tribunal was right to conclude that the claims had a “chance of being successful”.
The EAT concluded that although there was nothing on the face of the claims to support the equal work argument beyond the assertion in the pleading, equally there was nothing to indicate that it was wholly groundless.
Claimants in equal pay claims often have the odds stacked against them at the outset of a claim in terms of comparator evidence. It is refreshing to have the tribunals recognise these difficulties and take a pragmatic approach, which will hopefully stop attempts by employers to frustrate claims through providing poor disclosure, then complaining of “fishing expeditions” when claimants seek clarity.