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This article was published on April 12th, 2021
Employers dread receiving a claim form citing claims which have no teeth and ‘fishing’ for more information from the employer to inform their claims. Often, these claims lack any merit at all. But in some cases, getting hard data to back up anecdotal evidence can be impossible for an employee, especially when it comes to closely guarded information about pay. The EAT has recently looked at a request for supporting data in relation to an equal pay claim. This case sits against the backdrop of extensive mass equal pay litigation in recent times, originally in the public sector, for women in predominantly female roles who claim they do work of equal value to predominantly male roles within a business. Most recently, this mass litigation has moved into the private sector and supermarkets like Asda, Co-op and Sainsbury’s.
In Tesco v Element, a group of predominantly female employees who worked at Tesco stores brought equal pay claims citing male employee comparators who worked at Tesco distribution centres. They claimed they did work of equal value to the men who were paid more than them. Little information was given about the comparators in the claim forms, saying they would be clarified after the disclosure of more information from Tesco. The employment tribunal ordered Tesco to disclose more information, including how much the distribution centre employees were paid, the work they did, and potential ‘material factor’ defences for the difference in pay. Tesco appealed, arguing this went too far and saying the employees were on a fishing expedition.
The EAT dismissed the appeal. Employment tribunals have wide case management powers. The test is whether the disclosure is necessary to fairly dispose of the proceedings. The EAT noted that a claim must have some reasonable prospect of success and in this case the employees said they did work of equal value to comparators who got paid more. That was enough for disclosure to be necessary to dispose of proceedings fairly. They said that where a claim clearly had no reasonable prospects – for example if a junior clerk tried to compare her work to that of senior managers – that might result in a refusal to order disclosure (because it wasn’t necessary to fairly dispose of the case) or even strike out of the claim. The EAT said that the Tesco employees had not gone on a fishing expedition to find a claim, rather requested information to narrow and clarify their existing claim.
This case seems to place an unfair burden on employers at a stage where the merits of a claim are often unclear. However, both in big and small businesses, pay rates are often shrouded in mystery, something which the tribunal system is all too aware of. Tribunals will use their powers to order disclosure of comparator and pay information to allow the parties to be on an equal footing in relation to the facts about pay. Better to nip things in the bud before things get to court.