Prior to the Preliminary Hearing at which I permitted the appeals to proceed I required Tesco to state the order sought in respect of any grounds of the appeal succeed. This is required by the EAT Practice Direction 2024 . In respect of most grounds of appeal Tesco stated "Remission to the same Tribunal for factual determinations". This emphasises that the appeal seeks to challenge specific findings of fact made at the stage 2 equal value hearing.
Section 11.15.1 of the EAT Practice Direction 2024 states that "The order remitting the case defines the jurisdiction of the Employment Tribunal on the remitted issue(s)". The EAT has repeatedly emphasised the importance of clarity in the terms of remission so that the Employment Tribunal is clear about what matters are to be redetermined and which are not within the scope of the remission: see for example Hamilton v LTRS Estates Ltd t/a Orwells UKEAT/0230/12 (21 February 2013, unreported) per Langstaff J.
Section 8.2 of the EAT Practice Direction 2024 states that any application to amend "should be made as soon as practicable". The approach adopted by the EAT to amendment applications was set out by HHJ Serota QC in Khudados v Leggate [2005] ICR 1013 :
Deciding whether to permit an amendment is a classic example of the exercise of a judicial discretion. HHJ Serota specifically noted that there was a broad discretion to be exercised in accordance with the overriding objective. The specific factors he highlighted were stated to be "among the matters to be taken into account". I have not treated them as boxes to be ticked.
I have considered Tesco's application to amend and proposed amended grounds, the claimant's response, Tesco's letter of 14 March 2025 and the Leigh Day claimant's letter of 17 March 2025.
I will first consider application to amend to add paragraph 52. I will start with some general observations about the practicalities of the appeal and remission if any of the grounds of appeal are successful, which must be seen in the context of this litigation that is proceeding at a snail's pace, with a multitude of disputes about a vast number of factual issues, and repeated appeals.
Paragraph 52 refers to the Annex that lists 146 passages that are said to include "factual determinations, facts, examples and matters on which the Respondent relies". It is hard to imagine a more vaguely pleaded assertion. While the schedule sets out which ground (and in some cases sub-ground) the passages are said to be relevant to; the "factual determinations" and/or "facts" (it is not clear what if any distinction there is between the two); "examples" and "matters" (it is unclear what this term means) are not expanded upon. This raises very serious concerns about how the EAT would be able to understand the appeal or how, if the relevant grounds are successful, the Employment Tribunal would deal with remission. In its letter of 14 March 2025 Tesco rather glibly state:
This suggests remission that would lack the required specificity and would risk yet further detailed disputes in the Employment Tribunal about which "factual determinations, facts, examples and matters" are to be redetermined. That is a recipe for further delay in the Employment Tribunal and for yet further appeals. Tesco's analysis also fails to take account of the particular nature of a judgment after a stage 2 equal value hearing in which a huge number of facts are determined. The challenge in the appeal must be to specific facts or groups of linked facts determined in the judgment.
I will now consider the specific points made by Tesco.
Tesco assert:
I am informed that Tesco have appealed my Order. Unless successfully appealed, my previous judgment is to be treated as setting out the existing law, that an appeal lies against a judgment, and that the judgment in a stage 2 equal value constitutes the findings made by the Employment Tribunal on the disputed facts.
The application to amend is made extremely late. The appeal was received by the EAT on 15 August 2024. The decision only to give examples of the asserted errors in the factual determinations that made up the judgment was in error. Tesco have considerable legal resources and could have stated clearly all the specific factual determinations are challenged in the appeal when it was submitted. Tesco submitted a 88-page reconsideration application to the Employment Tribunal on 18 October 2024. If necessary Tesco could have chosen to amend the appeal then. Tesco could have considered the matter when the Harcus claimants expressly raised the issue of Tesco only having given examples in its skeleton argument submitted on 13 November 2024. There were further opportunities to consider this issue when Tesco responded on 26 November 2024 to my requirement to set out the orders sought in respect of any grounds of appeal that may succeed and when my draft judgment was circulated on 27 January 2025. The application was not made until 4 March 2025. I do not consider that the application was made with anything like reasonable dispatch.
Tesco assert:
While the application does not allege new errors of law, it is so vaguely expressed that I do not consider it can properly be said that it identifies fully "how the existing alleged errors of law affected individual factual findings and issues".
Tesco contend that:
I expedited the Preliminary Hearing and the full hearing. It has been very challenging to find a date for the full hearing because of the limited judicial resources of the EAT. Were this listing to be lost it may well not be possible to find a new hearing date for many months.
I consider that it is likely that allowing the amendment would cause very considerably delay and concomitant prejudice to the claimants. I consider that the current listing on 18 and 19 June 2025 would be placed in jeopardy and there would be a great risk of further disputes in the Employment Tribunal and possible further appeals that could delay this litigation yet further.
Tesco assert:
I accept that not permitting the amendment may cause real prejudice to Tesco. However, I do not consider it is sufficient to outweigh the prejudice to the claimants and the proper administration of justice by allowing the amendment. The prejudice is essentially of Tesco's own making. Tesco could have set out the full extent of their challenges to the facts that make up the stage 2 equal value judgment when they submitted the appeal or applied for amendment at a much earlier stage. Even now the proposed amendment is extremely vague and risks enormous further delay.
I refuse the application to amend to add paragraph 52.
The application to add paragraphs 53 to 55 seeks to add as a "point of clarification" that various determinations of facts relating to one of the comparators were applied by the Employment Tribunal to all comparators and that the challenge set out in the grounds of appeal that relate to one comparator apply to all comparators where the Employment Tribunal made findings that were applicable to the others comparators. As this is a point of clarification, I am not sure that an amendment is required. But for good order, I permit the amendment, but subject to any argument that the respondents may present at the final hearing that the ground should fail because it is not a genuine clarification of the existing grounds.