In equal pay claims, one of the ways for claimants to show that their jobs are of equal value to their comparators with more favourable terms and conditions is to rely on a Job Evaluation Scheme (JES). In Element and ors v Tesco Stores Ltd, the Employment Appeal Tribunal (EAT) held that the exercise that had been carried out by Tesco some years previously was not a JES as it did not cover the demands made on the job holders.
Basic facts
Approximately 10,000 Tesco store-based employees or former employees (who were predominantly women) brought equal value claims, comparing themselves with workers based in Tesco’s distribution centres (who were predominantly men). The women claimed that the men enjoyed more favourable terms and conditions (see weekly LELR 719).
In order to compare themselves and claim parity with those with more favourable terms and conditions, the women had to establish that their work was equal to that of the men in one of three ways. That is, by bringing a “like work” claim; an equal value claim (the slowest and most tortuous route); or by relying on a Job Evaluation Scheme, often referred to as a “rated as equivalent” (RAE) claim, the route adopted by the women in this case, relying on what they said was an RAE from 2014.
For its part, Tesco argued that the RAE on which the women were relying was just an informal exercise which had scored the demands of certain roles within Tesco, giving them an overall score, and then ranking them in order.
The issue for the tribunal was whether or not the 2014 exercise constituted a JES as stipulated under section 80(5) of the Equality Act 2010. The tribunal also had to consider the burden of proof test under section 136 of the act.
Relevant law
Section 80(5) states that a JES “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”.
Section 136 states that if there are facts indicating that the Equality Act has been contravened in some way then, if there is no other explanation, the court has to hold that the contravention happened.
Description of a JES
Both parties agreed that to be a valid JES, the exercise carried out in 2014 needed to have evaluated the demands of jobs done; assessed the work by reference to particular factors; and taken into account only those factors connected with the demands of the job.
Tesco argued, however, that in addition, it also had to be thorough in analysis; capable of impartial application; objective; transparent; accurate; internally sound; internally consistent; sufficiently detailed; and fair.
Tribunal decision
The tribunal held firstly that the burden of proof under section 136 had passed to Tesco to show that the 2014 exercise was not a valid JES. It then went on to conclude that it did not satisfy the definition of a JES.
The women appealed on two narrow points. The first focused on the meaning and definition of a JES under section 80(5); and the second was whether (and if so how) the statutory burden of proof provisions in section 136 of the Equality Act applied when deciding whether a scheme is a JES.
EAT decision
With regard to the burden of proof, the EAT held that it had been premature for the tribunal to decide that it had shifted to Tesco as there were so many outstanding issues that needed to be agreed before that could be determined. That said, the tribunal had been right to focus on Tesco’s evidence to justify its assertion that the 2014 exercise was not a JES, even though the burden of proof still lay with the claimants.
However, the EAT found that the tribunal had been right to conclude that the 2014 exercise was not a JES as it did not cover the demands made on the job holders as required by section 80(5) and was still a work in progress. It, therefore, dismissed the appeal.