3. Employment & Compensation
  5. United Kingdom: What is a valid job evaluation scheme for equal pay purposes?

United Kingdom: What is a valid job evaluation scheme for equal pay purposes?

11 Nov 2022    2 minute read
Equal Pay Inclusion & Diversity

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).  

Contents

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.

Contact Information
Monica Kurnatowska
Partner
London
Read my Bio
monica.kurnatowska@bakermckenzie.com
Robert Marsh
Associate
London
rob.marsh@bakermckenzie.com
Mandy Li
Knowledge Lawyer
London
Read my Bio
mandy.li@bakermckenzie.com

Copyright © 2024 Baker & McKenzie. All rights reserved. Ownership: This documentation and content (Content) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms). The Content is protected under international copyright conventions. Use of this Content does not of itself create a contractual relationship, nor any attorney/client relationship, between Baker McKenzie and any person. Non-reliance and exclusion: All Content is for informational purposes only and may not reflect the most current legal and regulatory developments. All summaries of the laws, regulations and practice are subject to change. The Content is not offered as legal or professional advice for any specific matter. It is not intended to be a substitute for reference to (and compliance with) the detailed provisions of applicable laws, rules, regulations or forms. Legal advice should always be sought before taking any action or refraining from taking any action based on any Content. Baker McKenzie and the editors and the contributing authors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The Content may contain links to external websites and external websites may link to the Content. Baker McKenzie is not responsible for the content or operation of any such external sites and disclaims all liability, howsoever occurring, in respect of the content or operation of any such external websites. Attorney Advertising: This Content may qualify as “Attorney Advertising” requiring notice in some jurisdictions. To the extent that this Content may qualify as Attorney Advertising, PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. Reproduction: Reproduction of reasonable portions of the Content is permitted provided that (i) such reproductions are made available free of charge and for non-commercial purposes, (ii) such reproductions are properly attributed to Baker McKenzie, (iii) the portion of the Content being reproduced is not altered or made available in a manner that modifies the Content or presents the Content being reproduced in a false light and (iv) notice is made to the disclaimers included on the Content. The permission to re-copy does not allow for incorporation of any substantial portion of the Content in any work or publication, whether in hard copy, electronic or any other form or for commercial purposes.

HighQ
Copyright Baker McKenzie 2024 | Disclaimers | Supplemental Privacy Statement