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In brief

The Employment Appeal Tribunal (EAT) has given some helpful guidance on what constitutes a valid job evaluation scheme for the purposes of bringing an equal pay claim under the Equality Act 2010 (Equality Act).  

Key takeaways

  • This appeal decision concerns a preliminary issue in ongoing equal pay claims brought by Tesco retail employees (predominantly women) as compared to Tesco distribution centre employees (predominantly male) following the employment tribunal’s decision that the job evaluation scheme relied on by the claimants was not a valid one so as to enable them to establish equal work.
  • The EAT upheld the tribunal’s decision on this preliminary point. The tribunal had found, on the facts, that although Tesco’s scoring assessment was analytical, the factors chosen “did not cover the demands made on the job holders. The omission of, in particular, any factor for physical efforts or skills where the jobs certainly demand those features was a serious omission“. In addition, the tribunal had found that the assessment was “an exploratory exercise only” and “was not complete in any meaningful sense of the word“. These were findings of fact that the tribunal was entitled to make.
  • The EAT also helpfully analysed previous case law on the meaning of a valid job evaluation scheme but ultimately concluded that the test is as set out in section 80(5) of the Equality Act, “A job evaluation scheme is a study undertaken with a view to evaluating, in terms of the demands made on a person by reference to factors such as effort, skill and decision-making, the jobs to be done by some or all of the workers in an undertaking or group of undertakings.” and nothing more. Tribunals undertaking this fact-finding exercise should do this by taking a common sense approach and applying a natural reading of the statute.
  • Finally, the EAT also clarified that the shifting of the burden of proof under section 136 of the Equality Act was not applicable on this issue. The burden of proof will only shift under section 136 when a prima facie case on all aspects of a claim has been established. In this case, at the preliminary stage, there were still many outstanding issues and many of the basic facts were in dispute so it was premature to apply section 136. The burden of proof therefore remained with the claimants to show that a valid job evaluation scheme had been conducted.

Element and others v Tesco Stores Limited, Employment Appeal Tribunal

For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.


Monica Kurnatowksa is a partner in the Firm’s London office. She is recognised by The Legal 500 and Chambers UK as a leading individual. Chambers say she has “impressive experience of handling complex employment disputes and advisory matters for major clients. She is known for her expertise in trade union matters.” "The breadth of her experience is phenomenal." "She is an outstanding lawyer who provides a first-class service while juggling the intense demands of running high-profile matters on behalf of her clients. She is unflappable, courteous and extremely knowledgeable”. Monica is a member of the Consultation Board of PLC Employment On-line and is a regular speaker at internal and external seminars and workshops.


Robert Marsh is a Senior Associate in Baker McKenzie London office.


Mandy Li is a Knowledge Lawyer in Baker McKenzie London office.

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