The campaign to gain equal pay for up to half a million supermarket workers received a setback yesterday as an employment tribunal has ruled that a study conducted by Tesco reward managers in 2014 was not valid. However, the ruling may yet be appealed.
The study evaluated 22 store roles against higher paid distribution roles. Lawyers representing Tesco workers – mainly in-store staff who are pressing for equal pay with their colleagues in distribution – had argued that the study, which found that 22 hourly-paid store roles were equivalent to higher paid distribution centre roles, would further their claim.
They allege that, after developing the study, Tesco hid its existence from staff and then dismissed its findings. Lara Kennedy, a solicitor in the employment team at Leigh Day, said earlier this month: “This is a highly unusual scenario where Tesco is now backpedalling and criticising its own study.
However, the open preliminary hearing at Watford Employment Tribunal, which began hearing evidence on 5 October, has decided the study did not meet the legal test and was not a valid job evaluation study.
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’.” – Lara Kennedy, Leigh Day
Legal teams representing Tesco workers had hoped that if the study had met the legal test the entire case would be much closer to a resolution.
The Open Preliminary Hearing at Watford Employment Tribunal was brought on behalf of more than 7,000 current and former employees – the largest group of Tesco workers fighting the multi-million pound claim – represented by the Tesco Action Group.
This group, formed in 2018, claims that Tesco breached its duty under section 66 of the Equality Act 2010 to pay them equally to men employed in comparable roles. The claim centres on store workers (who are predominantly women) who believe they have been paid up to £3 less per hour than warehouse and distribution centre workers (who are predominantly men).
It is estimated that as many as 584,000 current workers and an unknown number of former workers could be entitled to back pay across the UK’s four main supermarkets, resulting in a potential total pay-out of up to £10bn. The biggest claim is against Tesco, which employs about 250,000 people in its UK stores. The Tesco employees would have been able to base their claims on their employer’s own job evaluation study, had the tribunal ruled differently.
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Tesco Action Group has published a map of UK cities with some of the highest potential claim values, breaking down cities by post code, detailing the number of Tesco stores within each city, approximate employee numbers and corresponding claim values. It is estimated that current Tesco workers and an unknown number of former workers could be entitled to back pay of up to £10,000 each, resulting in a potential total pay-out exceeding £2.5bn.
The action group is championed by Pay Justice, an organisation dedicated to fighting for equality in the workplace, and campaigning law firms Harcus Sinclair (a subsidiary of Harcus Parker) and Leigh Day Solicitors, whose campaign is called Equal Pay Now.
In the Tesco claim, employees may be eligible if they work or worked in a Tesco store in England, Scotland or Wales for hourly pay during the previous six years (five years if they work or worked in Scotland).
Emily Fernando of Harcus Sinclair said: “The outcome delivered by the employment tribunal was not one we were hoping for and our clients are considering whether to appeal.
“Tesco employees past and present should not be deterred by this judgment. The employment judge has decided that the claimants can’t rely on a job evaluation exercise carried out by Tesco in 2014 but the equal value aspect of the action continues unaffected, with a date listed to consider our arguments. Our clients are determined to fight for equal pay and we remain as confident as ever that store and warehouse jobs are of equal value.”
Christine Sepahi worked for Tesco for over 25 years and sits on the Tesco Action Group committee. She said: “We are obviously disappointed by this latest ruling but remain resolute in our battle for equal pay at Tesco. All we’ve ever wanted is a level playing field and, at a time when Tesco is relying on its store workers more than ever to help it post record profits on the back of Covid-19, we would dearly love to see workers compensated for years of scandalous and unfair remuneration.”
Lara Kennedy, at Leigh Day, which represents 3,500 of the Tesco workers, 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.”
Leigh Day said it was reviewing the decision with a view to lodging an appeal with the employment appeal tribunal on behalf of its clients before Christmas. It will argue that the study found that 22 hourly-paid store roles were equivalent to three higher paid distribution centre roles and that after producing it Tesco abandoned the project and decided against implementing its own findings.
The firm also represents clients from Asda, Sainsbury’s, Morrisons, the Co-op and Next in similar equal pay cases.
Helena Rhodes, a Leigh Day client who worked for Tesco for six years, said: “It’s disappointing that we didn’t get the result we were hoping for, but this isn’t the end.
“I worked hard for Tesco and all I want is fair pay for the work I did.
“I’m hopeful that Tesco will recognise that it’s store staff deserve equal pay and bring an end to this dispute.”
Tesco has been contacted by Personnel Today for comment.