Tesco’s efforts to appeal against a major equal pay case with around 55,000 claimants have been delayed by an “elephant behind a screen”, according to judges at the hearing.
The case, Tesco Stores Ltd (appellant) versus Element and others (respondents), appeared in the Royal Courts of Justice Court of Appeal on Thursday 17 July, 2025.
The dispute centres on allegations the employer underpaid its female workers compared to male counterparts. Claimants argue that store-based employees, mainly women, are paid less than their distribution centre colleagues, who are mainly male.
In court last week, Judge Bean said that Tesco’s appeal will be considered at a later date because of an upcoming ruling from Employment Appeal Tribunal (EAT) Judge Mary Stacey.
Multiple hearings
Judge Stacey’s decision is the latest in a long line of rulings that include an appeal decision made by Judge Taylor in February 2024 and a decision made in an Employment Tribunal by Judge Oliver Hyams in 2023.
In the 2023 hearing, Hyams said that evidence presented by both sides was “so inconsistent with the interests of justice” that he could not fairly determine the facts in dispute.
Tesco challenged this, resulting in the hearing with Judge Taylor in February 2024, which led to the hearing by Judge Stacey this year.
Judge Stacey sent out a draft judgment on this appeal in the same case on Wednesday 16 July. Her draft decision, which was embargoed, includes fact finding about the claimants’ work and the work of male employees to assess the equal pay claim.
This situation prompted the three Court of Appeal Justices David Bean, Peter Jackson and Elisabeth Laing to decline to hear the appeal brought by Tesco on Thursday.
‘Large elephant’
Justice Bean said: “There is a large elephant in the room as Mrs Justice Stacy heard an appeal in this litigation in an EAT in June and sent out a draft judgement to all parties yesterday.”
He went on to say that as the EAT appeal relates to what the scope of the full appeal should be “how can it be right to decide now whether Judge Taylor was right or wrong (in the February 2024 hearing) because it has been overtaken by events”.
Tesco’s legal representative described the situation as a “procedural knot” that had come about as a result of concerns about how long this case, which started in 2018, was taking.
Judge Jackson said: “The idea that we would be hearing this sort of appeal with not only an elephant in the room, but also behind a screen so we couldn’t see what breed or shape it was, seems to me to be very unreal.”
The adjournment is the latest development in the case, with two sets of workers represented by Leigh Day and Harcus Parker.
Commenting on the case, Alex Elliott, solicitor in the employment team at law firm Birketts, said: “Whilst such disputes may appear straightforward in relation to equivalent or similar work, ‘equal work’ for this purpose also includes work which is of equal value in terms of, for example, the effort, skill and decision-making involved, even where the roles themselves are different.
Employer defence
“There is a defence available to employers, known as the material factor defence, if they can show that any differences in terms were genuinely attributable to a material factor which is neither directly nor indirectly discriminatory on the grounds of sex (for example, location, skills shortages or differences in working hours).”
Elliott added: “This long-running dispute, which commenced in 2018 and is yet to be determined, concerns whether the work carried out by those employed in stores (predominantly women) is of equal value to the work carried out by those employed in distribution centres (predominantly men) and, if so, whether there are material factors for the differences in pay. Most recent developments have concerned Tesco’s proposal to rely on an economic expert in support of its material factor defence.”
This case is just one of several high-profile equal pay claims in the retail sector, including a recent successful claim against Next which could result in up to £30 million in compensation being awarded to over 3,500 claimants.
Elliott encouraged employers to carry out regular equal pay audits and ensure that any genuine non-discriminatory reasons for differences in terms are documented and supported by evidence.
“Employers should be particularly cautious about relying solely on the ‘market rates’ for different roles,” he warned. “Tribunals will consider whether the underlying markets may be tainted by historic perceptions of women’s work and men’s work and, if so, the extent to which that influences the market rates. Similarly, cost-saving alone is unlikely to amount to a justification for unequal pay, although it could potentially be combined with other factors.”
