Over 47,000 Claimants have presented equal pay claims against Tesco (including some Claimants whose High Court claims are currently stayed pending the outcome of the claims in the Employment Tribunal). The claims were commenced in 2018. None of the claims have been determined. This appeal relates to a stage 2 equal value hearing that took place in the Tranche 1 claims in respect of 3 job roles, in which the work of 2 sample claimants for each of the 3 roles and 8 comparators have been considered. The ET was required to determine “the question” which is defined by Rule 1 EV Rules as “whether the claimant's work is of equal value to that of the comparator”. There was a dispute as to what materials both parties would need to present and after a second judgment in which the ET said “The most basic principle of all was this: an employee’s job is not what the employee says it is, but what the employer says it is” and “the primary focus should be on training documents”, Tesco appealed that judgment.

The EAT allowed the appeal. It was arguable that the ET had excluded consideration of matters about which findings of fact could be relevant to answering the “question”.