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Claimants cast a wide net but the EAT is satisfied there is no fishing: A brief comment on the decision in Tesco Stores Limited v Ms K Element & others

15.03.21

Claimants cast a wide net but the EAT is satisfied there is no fishing

A brief comment on the decision in Tesco Stores Limited v Ms K Element & others UKEAT/0228/20/AT(V)

This case considered the familiar Equal Pay scenario in which a Claimant, or in this case around 9,000 of them, pleads the bare bones of a claim and seeks, through disclosure orders, to put the flesh on those bones.

The Claimants are hourly-paid, store-based employees or former employees of Tesco.  Part of the claim is that the work which they do is of equal value to that of workers based in distribution centres.  Store staff are predominantly female and distribution centre staff are predominantly male.  Some of the Claimants listed a non-exhaustive list of roles performed by men within the distribution centres.   None of the Claimants pleaded a named comparator.

Tesco pleaded, among other defences, that the claims were an abuse of process because of the failure to identify a comparator.  It was also pleaded that the claims disclosed no reasonable cause of action.

Following agreed directions Tesco provided some information as to job titles and job descriptions.  This was not sufficient to enable the Claimants to identify named comparators and they sought orders for further disclosure and information in relation to pay, the work carried out by potential comparators and potential material factor defences.  The judge granted the orders and Tesco appealed.

The primary ground of appeal was that the Tribunal erred in law in concluding that prima facie claims had been advanced by the Claimants against Tesco.  Tesco argued that without prima facie claims there was no power to make the orders sought and the applications amounted to ‘fishing expeditions’ to enable the Claimants to formulate claims not yet in existence.

The EAT observed that:

  • A request for disclosure that is made in order to enable the requestor to find a claim, rather than to inform a claim already made is a ‘fishing expedition’;
  • In the present case there was in existence a claim for Equal Pay made by reference to comparators identified as male employees working in distribution centres, the request was made to inform that claim not to enable the Claimants to find a claim and was therefore not a fishing expedition;
  • When considering whether there is a prima facie case the question is simply whether the claim has a reasonable prospect of success;
  • Leverton v Clwyd County Council [1985] IRLR 197 is not authority for the proposition that there must be a prima facie case in the form of some evidential threshold before the power to order disclosure is engaged; and
  • Assuming the documents are relevant in the sense of being likely to support or be adverse to a party’s case, then the test is whether the order for disclosure and/or further information is necessary for the fair disposal of proceedings.

The EAT was not concerned by the idea that this approach would enable employees to plead purely speculative claims based on nothing more than assertion and then obtain onerous and/or ultimately futile disclosure orders.  This, the EAT reasoned, would be addressed under the existing safeguards such as strike out, deposit or refusal of an application based on it not being necessary for a fair disposal of the proceedings.

As practitioners in this area, it is difficult to share the EAT’s confidence.  The information accepted as establishing a prima facie claim in this case was skeletal; the Tribunal’s reluctance to strike out claims is well known.  One interpretation of this case is that it provides a licence to employees (and, more particularly, the no-win-no-fee firms that often represent them) to fish for information based on a mere assertion that their work is equal to that of a broad and amorphously expressed category of unnamed men.

Resisting such applications will involve careful and considered thought.  The EAT’s reasoning provides some indications of ways in which a party can avoid such an order or limit its scope, but the groundwork must be done in the pleadings and followed through the various stages.  Such an approach involves experienced judgement and more nuanced submissions, responsive to and rooted in the facts of any given case.

 

Commentary by Dale Martin QC and Lydia Banerjee

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