The claimants were store-based employees who are predominately female.   The basis of the claim related to equal pay and parity with those who worked in the distribution centres of the respondent who were mostly male.

The claimants made a claim stating that the jobs should be rated as equivalent and that the work was of equal value.  The basis of the claim was as a result of an informal exercise which was carried out in 2014.  This ranked the two roles together.  The issue for the EAT here was whether the informal exercise carried out was a job evaluation study within the ambit of the Equality Act 2010.   If it was then it would allow the claimants to rely upon it for the purpose of ‘rated as equivalent’ rather than having to demonstrate that their work was equal in value to those working in the distribution centres.  The focus was the mechanism of the burden of proof in situations pertaining to equal pay and job evaluation studies.

The Tribunal, at first instance, found that the burden shifted to the respondent to show there was no breach of equality.  However, it was found that the respondent had shown that the 2014 exercise was not a job evaluation study and the ‘rated as equivalent’ claims were dismissed.  The claims relating to equal value continued though.

The claimants appealed the decision to the EAT.   In terms of constituting a job evaluation study, the EAT cited Eaton v Nuttall [1977] which stated that the study had to be a test of being thorough in analysis and capable of impartial application.   It was found that the second element of this test was not part of the statute.  Therefore, all that was required was for a study to be undertaken to evaluate jobs in terms of what is required (this would relate to, for example, skill, effort and decision making).  In terms of the 2014 evaluation, the Tribunal found that it did not meet the definition on the basis that it did not evaluate the demands made on the employee in that particular role.  The physical efforts and skills would have to be included.   Additionally, the 2014 exercise being carried out was seen as an exploratory exercise whereas the legislation required that the job evaluation study would be ‘completed’.  As a result, it was regarded as work in progress and did not meet this aspect of the legislation.  Therefore, the appeal was dismissed and the 2014 exercise was not regarded as a job evaluation study for the purpose of showing that jobs were rated as equivalent.

Practical Lessons

This case provides a useful examination and application of what constitutes a job evaluation study when it comes to equal pay matters.   The use of the older cases and how the study must be thorough in analysis means that the study has to examine some salient features of the role.  This was seen to include the effort required and the demands placed upon the employees in that particular role.   As this was not part of the 2014 study it meant it did not constitute a job evaluation study within the confines of the legislation.  This is important as it removes one aspect of the claim that can be brought relating to equal pay.
https://www.gov.uk/employment-appeal-tribunal-decisions/ms-k-element-and-others-v-tesco-stores-ltd-all-claimants-represented-by-harcus-sinclair-and-all-claimants-represented-by-leigh-day-2022-eat-165