Tesco Stores Ltd v Element & Ors (Equal Pay, Practice and Procedure) [2026] EAT 33 (26 February 2026)

Tesco Stores Ltd v Element & Ors (Equal Pay, Practice and Procedure) [2026] EAT 33 (26 February 2026)

The Employment Tribunal erred in law by failing to follow the mandatory reconsideration process, improperly deferring fact-finding to the final hearing, and issuing prospects dismissals where permission to proceed decisions were required. The Tribunal must finalise all relevant fact-finding at Stage 2 and follow the structured reconsideration process under the Rules.

Citation
[2026] EAT 33
Parties
Appellant/respondent: Tesco Stores Limited; Appellant/respondent: Ms K Element & others (Leigh Day claimants); Appellant/respondent: Ms K Element & others (Harcus claimants)
Jurisdiction
United Kingdom
Judgment Date
26 February 2026
Procedural Posture
Employment Appeal Tribunal (eat) Appeal and Cross Appeals / Appeal Against Employment Tribunal's Second Stage 2 Equal Value Reconsideration Decision
Outcome
Appeal and cross-appeals allowed in part; certain prospects dismissals substituted with permission to proceed decisions; matters remitted to Employment Tribunal for completion of mandatory reconsideration process.
Legal Topics
Equal Pay, Equal Value Claims, Employment Tribunal Procedure, Reconsideration Applications
Employment Law Equality Law Equal Pay Equal Value Claims Employment Tribunal Procedure Reconsideration Applications

Case Brief

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Parties

Tesco Stores Limited

Appellant/respondent

Ms K Element & others (Leigh Day claimants)

Appellant/respondent

Ms K Element & others (Harcus claimants)

Appellant/respondent

Procedural Posture

Employment Appeal Tribunal (eat) Appeal and Cross Appeals / Appeal Against Employment Tribunal's Second Stage 2 Equal Value Reconsideration Decision

Legal Issues

  1. 1 Whether the Employment Tribunal erred in its approach to reconsideration applications under the Employment Tribunal Rules 2024
  2. 2 Whether fact-finding on key issues was improperly deferred to the final hearing rather than completed at Stage 2
  3. 3 Whether the Tribunal's use of evaluative language and training videos in findings of fact was appropriate

Ratio Decidendi

The Employment Tribunal erred in law by failing to follow the mandatory reconsideration process, improperly deferring fact-finding to the final hearing, and issuing prospects dismissals where permission to proceed decisions were required. The Tribunal must finalise all relevant fact-finding at Stage 2 and follow the structured reconsideration process under the Rules.

Court Disposition

Appeal and cross-appeals allowed in part; certain prospects dismissals substituted with permission to proceed decisions; matters remitted to Employment Tribunal for completion of mandatory reconsideration process.

Orders

  • Permission to proceed decisions substituted for prospects dismissals on specified issues (physical effort, Mrs Worthington, training videos/evaluative language, Mr Hornak).
  • Matters remitted to Employment Tribunal to issue permission to proceed notices and complete mandatory reconsideration stages once stay is lifted.