Mrs A Ahmed and others v Sainsburys Supermarkets Ltd and Lloyds Pharmacy Ltd: 1302374/2015 and others

EMPLOYMENT TRIBUNALS

Case No 1302374/2015

Between

Mrs A Ahmed & othersClaimant

(1) Sainsbury’s Supermarkets Limited (2) Lloyds Pharmacy Limited PRELIMINARY HEARINGRespondent

Before

Employment Judge Camp

Mr D Short QC for claimant

Mr D Martin QC for respondent

Date 28 February 2025

JUDGMENT

(1) The only relevant claims that were presented in accordance with rule 9 of the 2013 Rules of Procedure and are ‘regular’ are those in relation to which the respondents concede this was the case, being the claims made in the claim forms with the following ‘lead’ claimants: Bradley, Husselby, S Allison, Mason, Bragan, V Allison, Brumpton, Crabtree, Cooper, Brooker, Desouza, Atkinson, Collingwood, Jack.

(2) All irregularities caused by the non-compliance with rule 9 are waived.

REASONS

[1]These equal pay proceedings began in April 2015 with four claimants. Mainly because of appeals to the EAT and Court of Appeal, they have got almost nowhere in the intervening four years. There are now over 2,000 claims, with thousands more potentially related claims in the pipeline.

[2]The claimants are typically women or contingent male claimants who work or worked in various roles within Sainsbury’s supermarkets who compare themselves to men who work in distribution centres. The second respondent is involved as a TUPE transferee.

[3]This preliminary hearing is concerned with issues connected with rules 6 and 9 of the 2013 Rules of Procedure.

[4]Rule 9 is: Two or more claimants may make their claims on the same claim form if their claims are based on the same set of facts. Where two or more claimants wrongly include claims on the same claim form, this shall be treated as an irregularity falling under rule 6.

[5]Rule 6 is: A failure to comply with any provision of these Rules (except rule 8(1), 16(1), 23 or 25) or any order of the Tribunal (except for an order under rules 38 or 39) does not of itself render void the proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include all or any of the following–(a) waiving or varying the requirement;

(b) striking out the claim or the response, in whole or in part, in accordance with rule 37;

(d) awarding costs in accordance with rules 74 to 84.

[6]From the outset, the respondents1 have argued that: claims have been presented in breach of rule 9 in that they were not “based on the same set of facts” and so are irregular; the affected claims should be struck out, under rule 6. The respondents now contend that, as well as or instead of claims being struck out, costs orders should be made.

[7]For convenience sake, I shall, as other Judges and the parties have done, discuss the issues connected with rule 6 as if the power to strike out claims for breach of rule 9 comes from rule 6. However, as I shall explain later in these Reasons, this is not technically correct.

[8]Following a preliminary hearing in April 2016, Employment Judge Pirani (as he then was) decided that the claims before him were not presented in breach of rule 9. He did not go on to decide whether or not, if he was wrong about that, it would be appropriate to strike out the claims. In June 2017, his decision was overturned by Lewis J in the EAT (reported as Farmah & Others v Birmingham City Council

[2018] ICR 921

[9]At the same time as considering Judge Pirani’s decision, the EAT dealt with other first instance decisions in similar cases, including a decision of Employment Judge Woffenden (Farmah) and two of Regional Employment Judge Robertson (Brierley & Others v Asda Stores Limited and Fenton & Others v Asda Stores Limited). In Brierley, REJ Robertson’s decision was to the effect that the claims were presented in breach of rule 9 and were irregular, but that the irregularity should be waived. In Farmah, EJ Woffenden decided 1 Until relatively recently, the first respondent (“Sainsbury’s”) was the only respondent, but for the most part there is no need for me to differentiate between the respondents for the purposes of this decision. I shall, in the main, simply refer to them as the “respondents”, meaning the “first and/or the second respondent”. some of the claims were irregular and some were not; and that some of the irregular claims should be struck out but that others should not be.

[10]In the EAT, Lewis J decided REJ Robertson’s approach to whether claims were presented in breach of rule 9 was the correct one, and that both Judge Pirani and (albeit to a limited extent) EJ Woffenden had erred in this respect. He also decided that the Judges’ approaches to rule 6 in both Brierley and in Farmah had been wrong.

[11]The EAT’s decision was appealed. Shortly after the EAT’s decision was handed down, the Supreme Court, in R (Unison) v Lord Chancellor

[2017] UKSC 51

, held the fees regime to be unlawful. This was potentially very significant for the appeal. One of the employers’ main arguments in favour of striking out was that the breaches of rule 9 resulted in an underpayment of fees, and that this fact made the breaches particularly serious.2 Fees loomed large over the ETs’ and EAT’s decisions.

[12]In January this year, the Court of Appeal (Brierley & Ors v ASDA Stores Ltd

[2019] EWCA Civ 8

), broadly, endorsed REJ Robertson’s approach both as to rule 9 and as to rule 6 / strike-out. 121 claims in these proceedings were remitted for the rule 6 issues and any remaining rule 9 issues to be decided. Ordinarily, the matter would have been dealt with on remittal by the Judge who had previously dealt with it – Judge Pirani. However, in light of Judge Pirani moving from being an Employment Judge in the Midlands (West) region to being Regional Employment Judge of the South West region, it was decided, on grounds of practicability, that these proceedings were best dealt with by a salaried Employment Judge based in Birmingham, which is how they came to be before me [Employment Judge Camp].

[13]By the time the matter came before the Court of Appeal, Farmah had been compromised. One of the difficulties I have had is that a number of things that could be relevant to what I have to decide were dealt with by the EAT in connection with the Farmah proceedings and were not, at least not in terms, dealt with by the Court of Appeal. The respondents rely heavily on the EAT’s decision. There is disagreement between the parties as to the extent to which that decision is binding on me and can be relied on, in light of the fact that it came before Unison and has, in part, been overturned by the Court of Appeal.

[14]Fenton is largely irrelevant on any view. The claimants submit it is completely irrelevant. The claimants in Fenton were specially selected so as to provide a test case to challenge REJ Robertson’s interpretation of rule 9 in Brierley. (As I understand it, their claim form was presented at a time when it was unclear whether there would be a full appeal hearing in Brierley). All along, the only basis upon which the Fenton claimants resisted the striking out of their claims was their argument that REJ Robertson was wrong about rule 9. The EAT and Court of Appeal duly upheld the striking out of their claims by REJ Robertson. 2 In Brierley, it was even argued that there was no discretion to waive an irregularity where that would result in the avoidance of fees.

[15]In relation to the 22 claim forms and 121 claimants’ claims that are before me:15.1 the Court of Appeal decided 4 claimants’ claims (on 1 claim form) were presented in breach of rule 9 and are irregular;

15.2 the claimants accept that the claims on 7 further claim forms, from (by my count) 28 claimants in total, are irregular;

15.3 the respondents concede that no rule 9 point arises in relation to 14 claim forms, comprising 38 claimants’ claims;

15.4 103 claimants have issued further claims to which no rule 9 points arise, in case their original claims are struck out. As I understand it, most or all of those who have not issued further claims did not do so because they accepted any further claim would face insurmountable time limits difficulties;

15.5 each group of claimants will be referred to by the lead claimant on their respective claim forms, e.g. Ahmed means the 4 claimants’ claims contained in a single claim form that was presented on 24 April 2015 (these are the claims the Court of Appeal decided were irregular).

Summary

[16]My decision in a nutshell is:16.1 all of the disputed claim forms have been presented in breach of rule 9 and all the claims on those claim forms are irregular;

16.2 it would be contrary to the overriding objective to do anything other than waive the irregularities and it would be wrong to make a costs order.

[17]Perhaps I am guilty of adopting too simplistic an approach, and of making molehills out of mountains, but in light of the abolition of fees and the Court of Appeal’s decision, I see this matter, overall, as straightforward and clear cut. It occurred to me during the hearing that if a comparable situation had arisen in any other type of case, the ET would in all likelihood have dealt with it almost summarily. Many genuinely interesting (and, in a different case, potentially significant) points have arisen during this hearing. It has been a pleasure to have Mr Short QC and Mr Martin QC appear before me and I am grateful to them both. However, the fundamentals are: whatever the defaults of the claimants and/or their solicitors (and I do not think they are so very great), they were not deliberate; a fair trial remains possible; and the balance of prejudice comes down firmly in the claimants’ favour.

Issues

[18]As just explained, the two ‘headline’ issues are, broadly: to the extent this is in dispute, has there been compliance with rule 9; where there hasn’t, what should the consequences be? A number of subsidiary issues have been argued before me. No list of those subsidiary issues has been provided and so I have made my own.

[19]The legal issues that have been raised in relation to rule 9 are:19.1 is the burden on claimants who choose to use the same claim form to show that their claims are “based on the same set of facts”, or is it for a respondent that asserts there is an irregularity in this respect to show that they are not? Within this issue:19.1.1 are the parts of the EAT’s decision suggesting the burden is on the claimants binding on me?

19.1.2 am I assisted in relation to this issue by something said by Longmore LJ to leading counsel for Sainsbury’s during the course of argument on day 2 of the hearing in the Court of Appeal in response to a submission that “it is for the claimants to demonstrate that they satisfy the requirements of rule 9”, namely that he was, “not quite sure about that. You apply. It’s your application to strike out …. I would have thought that if you are making an application, it’s for you to show”?

19.2 in deciding whether claims are “based on the same set of facts”, to what extent should the tribunal look beyond the facts as alleged by the claimants in the claim form? Does paragraph 27 of the Court of Appeal’s decision, and the reference to what is “asserted by the claimants” help answer that question?

19.3 where a claim form breaches rule 9, are the claims of all of the claimants on it irregular, or just those of the claimants whose presence as claimants on that claim form could be said to have caused the irregularity? Connected with this: is the statement of Bean LJ in paragraph 28 of the Court of Appeal’s decision, “I do not accept the argument that the whole claim form is vitiated as a result”, an answer to that question; and if it is, was it part of the ratio or was it obiter? Similarly, am I bound by the part of the EAT’s decision to the effect that in this situation the claims of all the claimants are irregular?

19.4 in an equal pay claim, is there a breach of rule 9 where – all the claimants using the same claim form were doing the same job when the claim form was presented (or, in the case of claimants whose employment has ended, were doing that same job when it ended), but one of them is also complaining about a period of work in a materially different job? To put this another way: does the requirement that claimants must do the same or very similar work in order to be able to use the same claim form apply only to the work they were doing when the claim form was presented (or, in the case of a claimant whose employment has ended, had been doing when it ended), or does it apply to work they are making their claims about? I shall refer to this as the “previous jobs issue”.

[20]The factual issues arising in relation to rule 9 are:20.1 was the work done by claimants in the following jobs sufficiently similar for their claims to be “based on the same set of facts”:20.1.1 Customer Service Assistants (“CSAs”) and General Assistants (“GAs”);

20.1.2 local CSAs and GAs;

20.1.3 CSAs and local CSAs;

20.1.4 GAs and Warehouse Assistants;

20.1.5 Team Leaders of different teams (Bakery, Pharmacy, Admin, Online, CSAs & GAs)?

20.2 an issue specific to Michelle Oliver (claim number 1802759/2015), which affects only her and the other claimants on her claim form (the Carr claim form, presented on 10 November 2015, which has in total 8 claimants on it). The respondents designate her a ‘Sainsbury’s To You Shopper’. That role – which I shall refer to as “online shopper” – consists of going around the store collecting together items that have been ordered by customers online. The claimants accept that the work of someone who was purely an online shopper would be materially different from the work done by the other Carr claimants, who were GAs.3 Their case is that as a matter of fact, although she did spend some of her time carrying out the work of an online shopper, she did other work too, and that “General Assistant” best describes the work she undertook. The factual issue that arises is therefore: was the work done by Ms Oliver sufficiently similar to that of the other claimants in Carr for their claims to be “based on the same set of facts”?

[21]The following legal issues have been raised in connection with rule 6:21.1 in relation to whether irregularities should be waived or claims struck out, is there a relevant burden of proof, e.g. is it for the claimants to persuade the tribunal that there should be a waiver or is it for the respondents to persuade the tribunal that claims should be struck out? And am I assisted in relation to this issue by the comments of Longmore LJ mentioned above?

21.2 do the changes that were made in 2013 to the wording of the equivalent to rule 9 in the 2004 Rules reflect a policy decision to tighten up the rules relating to the presentation of claims, meaning that a breach of rule 9 creates a particularly serious example of an irregularity under rule 6?

21.3 further to the previous issue, does a breach of rule 9 create a particularly serious example of an irregularity under rule 6 in any event?

21.4 in deciding whether to strike out or instead to waive the irregularity, is the approach to be adopted a version of that advocated in Blockbuster Entertainment v James

[2006] IRLR 630

, or is the important thing (or, at least, a very important thing) whether the claimants, through their solicitors, took “sufficient care to ensure that” they “were including claims in a claim form which were based on the same set of facts” (paragraph 102 of the EAT’s decision) and whether there is a “justifiable explanation” (paragraph 104 of the EAT’s decision) for what has occurred? Connected with this: to what extent, if at all, are the parts of the EAT’s decision on this issue binding on me?

21.5 when choosing between waiving the irregularity and striking out claims, can an Employment Judge (as EJ Woffenden did in Farmah) legitimately 3 If I am wrong about this, it is what I would have decided anyway. distinguish between different claims brought in the same claim form on the basis that some belonged in that claim form whereas others did not, or would it be “unprincipled” (paragraph 113 of the EAT’s decision), in the absence of “identified … relevant legal differences” (ditto), for there to be a different exercise of discretion in relation to claims brought in the same claim form? And (as with the previous issue) are the relevant parts of the EAT’s decision binding on me?

[22]There is a costs issue that was not raised or discussed during the hearing but which occurred to me when deliberating. The parties’ submissions on costs seem to ignore the words “in accordance with rules 74 to 84” in rule 6(d), as if the rule had nothing after the words “awarding costs”. The issue that arises is whether rule 6(d) in and of itself gives a discretion to award costs, or whether, instead, the tribunal must be satisfied that one of the conditions for awarding costs in rules 76 or 80 is met.

[23]The following factual issues may need to be decided:23.1 to the extent this is in dispute, why did the breaches of rule 9 occur?

23.2 did the claimants, through their solicitors, take “sufficient care to ensure that” they “were including claims in a claim form which were based on the same set of facts”, and was there a “justifiable explanation” for what has occurred?

23.3 what prejudice, if any, would the parties suffer if I waived irregularities or, alternatively, struck out claims?

23.4 possibly, some factual issues relevant to costs.

[24]In relation to factual matters, I note that the respondents did not pursue the suggestion that the reason the claimants had been inappropriately included together in claim forms was to avoid fees.

Relevant facts

[25]By way of background, I refer to the “Agreed facts document” prepared for the preliminary hearing before Judge Pirani in April 2016 (which is a little out of date now) and to the very useful table provided by the respondents’ legal team in February 2019 to accompany the respondents’ position paper.

[26]The respondents and the claimants called, respectively, two witnesses and one witness. For the claimants, I heard from Mr Chris Benson, a partner in Leigh Day solicitors, who are and have throughout been acting for the claimants. For the respondents we had Mr Steven Lutchmiah, who is the Retail Risk Manager for Sainsbury’s, a senior management position, and Mr Michael Hawker, a Regional Operations Manager, responsible for 31 stores.

[27]Although all three witnesses were cross-examined, none of their relevant evidence of fact was substantially disputed to any great extent. However, the point was made in relation to each of them – and legitimately so – that they lacked any detailed personal knowledge of the claimants and their cases.

[28]Almost all of Mr Benson’s evidence, to the extent it was relevant at all, was relevant only to the rule 6 issue. From his own knowledge, what he could tell me about was how, in principle, his firm, and his subordinates within it, set about deciding which claimants should be included on which claim forms – a process referred to as ‘batching’. That evidence is set out in the following paragraphs of his witness statement, to which I refer: 27, 28, and 32 to 41. Essentially, claimants were included in the same claim form – were, using the claimants’ solicitors’ terminology, batched together – if they had the same or a very similar job title and/or did the same or very similar work, taking into account all of the following: their sex; what the claimant gave as their current or last job title; any information provided by the claimant about the work they did; any relevant information provided by the respondents, particularly about job titles.

[29]There was no real challenge to Mr Benson’s evidence to the effect that a genuine attempt was made, in relation to all claims presented after REJ Robertson’s decision in Brierley (23 July 2015), to ensure that the claim forms complied with REJ Robertson’s interpretation of rule 9. I accept that evidence. To the extent claim forms did not comply with rule 9, it was down to human error: mistakes by the claimants and/or by their solicitors. It had nothing at all to do with fees, and the overall reduction in the fees payable caused by erroneous batching decisions was small.

[30]So far as concerns the Ahmed group of claims, which were presented, irregularly, before REJ Robertson’s decision in Brierley, the reason a single claim form was used was nothing more complicated than that Leigh Day were following their established practice – a practice dating back to well before tribunal fees came in – of batching together claims that were likely to be grouped together by the ET in a single multiple claim, and/or which would probably be dealt with together by the ET. As Judge Pirani recorded, and as was accepted by the Court of Appeal, there was a settled, or at least widespread, practice of claims like these being presented in a single claim form without anyone suggesting anything untoward was going on. Although the respondents’ argument that multiple claims of this kind were irregular had first been raised before the Ahmed claim form was presented, the claimants’ solicitors were not significantly concerned about it until the hearing before REJ Robertson.

[31]Mr Benson’s statement deals with Ms Oliver in paragraph 58 c. Unfortunately, what is set out in that paragraph is of limited evidential value, being secondhand hearsay: what his subordinates told him they had been told by Ms Oliver. For what it’s worth, the relevant part of this evidence is as follows: “she spent some of her time fulfilling online orders”; “online orders never took up her entire shift”; she was never referred to as a Sainsbury’s To You Shopper; she and colleagues with similar roles “referred to themselves as General Assistants”, which title “best describes the work” she did; “she was required to work in any other departments that required extra staff”. In his oral evidence, Mr Benson confirmed he does not know what proportion of Ms Oliver’s time was, even according to Ms Oliver herself, spent doing online shopper work. In answer to a direct question from me, he said I should not assume from the way in which paragraph 58 c. of his statement has been drafted that she mostly worked as an online shopper.

[32]There is very little other evidence in Mr Benson’s statement that is potentially relevant to the rule 9 issue. What there is has negligible value, because it is, at best, second-hand hearsay and because it cannot compete with the corresponding evidence of Mr Lutchmiah and Mr Hawker, the respondents’ witnesses.

[33]Unlike Mr Benson, the respondents’ two witnesses were in a position to say from their own knowledge what work people holding particular job titles did. Their evidence about this was not dented in cross-examination.

[34]Mr Lutchmiah and Mr Hawker gave no evidence about what individual claimants did in practice. It is possible that the job titles of some individuals did not reflect the work they carried out. However, apart from in relation to Ms Oliver, Mr Benson did not give evidence to the effect that the work of particular claimants was materially different from the work of colleagues with the same job titles. In the circumstances, having, it seems to me, no good reason to do otherwise, I find that the work the claimants did (putting Ms Oliver to one side for the time being) was typical of the work done by those with their job titles, as described by Mr Lutchmiah and Mr Hawker.

[35]I shall now explain why it seems to me that I have “no good reason to do otherwise”.35.1 There is, as I have already mentioned, a dearth of evidence directly or indirectly from individual claimants as to what work they actually did.

35.2 In cross-examination, a lot of emphasis was placed on training records. However, I don’t think the fact that some claimants with particular job titles had the same training as claimants with different job titles undermines to any significant extent the respondents’ witnesses’ clear evidence about what work people with particular job titles tend to do in practice. Similarly, I don’t think it is safe for me to assume (as the claimants appear to be asking me to) that particular claimants must at relevant times have been doing significant amounts of a particular type of work just because they happen to have had training relevant to that particular type of work in the past. Generally, I think both sides relied too much on training records, in circumstances where the real issues were to do with what work people did in practice, not what work they had been trained to do and/or were capable of doing in theory.

35.3 There is an issue relating to one of the 10 claimants in the Austin set of claims: Mark Styles. The claimants concede that this is an irregular claim form because of something that has nothing to do with Mr Styles, but the respondents’ case is that Mr Styles being a claimant in the Austin claim form is an additional source of irregularity. They say he was a Warehouse Assistant not a General Assistant and that these two roles are materially different. They would like me to adjudicate on this. I decline to do so because it would be an entirely academic exercise. I shall be making my decision on article 6 on the assumption that the respondents are right about every alleged source of irregularity. In any event, that decision would be no different if the Austin claim form were irregular for both reasons and not just the one reason admitted by the claimants. For present purposes, what I am concerned with is an argument that was advanced in submissions in connection with Mr Styles. It may be that something similar is being relied on in relation to other claimants as well, for example Penelope Scott, who is one of the claimants on the Bower claim form. It is along these lines: Mr Styles was described as a General Assistant in his claim form; he must, therefore, have described himself to the claimants’ solicitors as a General Assistant and have described his work as similar to that of a General Assistant; I should therefore decide that his work was similar to that of a General Assistant. Suffice it to say that in the absence of witness evidence from or even specifically about Mr Styles, accepting that argument would require me to make too many assumptions that are unsupported by anything of substance.

[36]As to what work was done by those with relevant job titles, I refer to what is in the respondents’ witnesses’ witness statements. The gist of their evidence (written and oral) was:36.1.1 although they might occasionally have to help out in other parts of the supermarket, CSAs spent the great majority of their time on the tills or supervising the self-scan area. In short, they were what most people would call checkout assistants. See section 2 of Mr Hawker’s witness statement;

36.1.2 GAs could accurately be described as shelf-stackers, a term I do not mean pejoratively or dismissively. Although they might have been ‘till trained’, they would only rarely work on the tills. See section 5 of Mr Hawker’s statement;

36.1.3 local CSAs, who worked in local convenience stores, had a broad role, taking in elements of what in supermarkets are a number of different roles. In particular, they would do the local convenience store equivalent of the roles of both GA and CSA, as well as dealing with deliveries and some work that in a supermarket is department specific. See section 6 of Mr Hawker’s statement;

36.1.4 the day-to-day work of the team leaders was different depending on the team they were in, because all team leaders spent a significant part of their time undertaking the work of a ‘colleague’ in that department. The team leader roles are as different as the roles of those they are team leaders of. A Team Leader Admin, for example, would not be dealing with members of the general public or physically with retail goods, but with administrative tasks. A degree of department-specific technical knowledge was required, for example baking knowledge for a Team Leader Bakery and knowledge relating to the dispensing of controlled drugs for a Team Leader Pharmacy. The only thing the roles had in common was that they all involved some supervision and lowlevel management of other staff. See section 5 of Mr Lutchmiah’s statement. Legal issues – rule 9

[37]Because of my decisions on other issues, because I do not think they are in practice important in this case, and because it is not necessary for me to do so to make my decisions about rule 9, I do not propose to deal with the following:37.1 the burden of proof under rule 9;

37.2 the extent to which the tribunal should look beyond the facts as alleged by the claimants in the claim form in deciding whether claims are “based on the same set of facts”.

[38]The first legal issue I propose to address is: where a claim form breaches rule 9, are the claims of all of the claimants on it irregular, or just those of the claimants whose presence as claimants on that claim form could be said to have caused the irregularity? My decision on this issue is that all the claims on the claim form are irregular, for the following reasons:38.1 I think the part of the EAT’s decision dealing with this issue (paragraphs 94, 95, & 113), which related to Farmah, is binding on me. Farmah did not go to the Court of Appeal; the part of the EAT’s decision that was successfully appealed related to rule 6, not rule 9; the Court of Appeal did not clearly address this issue whereas the EAT did; in my view, there is nothing in the ratio of the Court of Appeal’s decision that contradicts or undermines or qualifies the EAT’s decision on this issue; fees, and their abolition by Unison, are not relevant to this issue;

38.2 I respectfully agree with Lewis J. If two claims may not be presented in the same claim form in accordance with rule 9, there is no logical or principled basis for distinguishing between them in terms of whether they are regular or irregular;

38.3 further to the previous point, even if one could distinguish between claims in principle, rule 9 says nothing about how to decide which fall into the regular and which the irregular category in practice;

38.4 the relevant part of rule 9 is, “Where two or more claimants wrongly include claims on the same claim form, this shall be treated as an irregularity falling under rule 6.” I can see no scope within that wording for treating some of the claims as regular and others as irregular. There is a single “irregularity”, which must mean the whole claim form is affected; for some claims to be irregular and others not, there would surely have to be multiple irregularities.

[39]The claimants rely on the following part of the Court of Appeal’s decision (per Bean LJ at paragraph 28): A few of the multiple claimants are men bringing what are usually called “contingent” or “piggy-back” claims … I agree with REJ Robertson that such a claim is not “based on the same set of facts” as that of the women and its inclusion in their claim form, even if there are no other complications, is irregular, though I do not accept the argument that the whole claim form is vitiated as a result.

[40]At first blush, this does seem inconsistent with the part of the EAT’s decision under discussion. However:40.1 so far as I can tell, in none of the cases that were before the Court of Appeal was there a suggestion that some of the claims on an irregular claim form might be regular. It follows that if what Bean LJ meant was that this was possible in theory, what he was saying was obiter;

40.2 if Bean LJ was consciously expressing the view that an irregularity in a claim form does not necessarily make all the claims in it irregular, I would have expected him to say so clearly;

40.3 further to the previous point, Bean LJ’s choice of words is a little odd if that was the view he wanted to express. There is no qualifying word between “is” and “vitiated”, like “necessarily” or “automatically”, but he can’t have meant that in every case there would be some regular claims on an irregular claim form, not least because (as just mentioned) there weren’t any cases before the Court of Appeal with irregular claim forms in which some claims were said to be regular. To refer to a “claim form” being “vitiated” would also be peculiar if what was meant was claims being made irregular. “Vitiated” is usually used to mean invalidated, and breaching rule 9 does not invalidate anything.

[41]In conclusion on this point, all the claims on a claim form that breaches rule 9 are irregular.

[42]The remaining legal issue relating to rule 9 is the one that affects the most claims: the previous jobs issue.

[43]The Court of Appeal’s decision (per Bean LJ at paragraph 27) was that: REJ Robertson’s formulation is the correct one. Multiple claims are allowed under Rule 9 where (whatever the titles attached) it is asserted by the claimants that their roles and the work they do are either the same, or so similar to one another that the claims can properly be said to be based on the same set of facts.

[44]The Court of Appeal had previously referred to the following part of REJ Robertson’s decision in Brierley: 87. The difficulty, to my mind, with Mr Short’s [claimants’ leading counsel’s] case lies with his assertion that these proceedings are not about individual jobs. It is clear to me that, in the equal pay context, they must be. Although the Bainbridge line of authorities relates to the identification of causes of action, and does not concern rule 9 or its predecessor, I find the cases of assistance in identifying the essential factual basis for an equal value claim. In such a claim, the irreducible minimum set of facts on which the claim is based consists of the work done by the claimant which is said to be equal to her comparator's. The claimant must establish(1) the work which she did,

(2) the work which her comparator(s) did, and

(3) that the work was of equal value. I agree with Mr Jeans [for the respondent] that a Checkout Operator, seeking to establish that her work is of equal value to a Warehouse Operative, cannot be said to base her claim on the same facts as, say, a Bakery Assistant in terms of the essential factual inquiry as to what work she did. It is not enough that the claims are thematically linked and essentially assert the same broad contentions. In the context of the particular characteristics of an equal value claim, the facts on which the claims are based are not the same. 88. I agree with Mr Jeans that claimants might properly group themselves together as multiple claimants within rule 9 if they in practice undertook the same work because they were, for example, Checkout Operators, but what cannot be done is to bring together in a single claim form equal value claimants whose jobs are different and who rely on different sets of facts as to the work which they do. This is even more so in the case of the male contingent claimants whose claims proceed on the wholly different basis that they do like work as their female colleagues on whom they ‘piggyback’.

[45]This seems reasonably clear on the face of it: in an equal pay case, claimants may only use the same claim form if their claims relate to the same or similar work; if two claimants’ claims relate to different work, e.g. one concerns the first claimant’s work as a Bakery Assistant and the other the second claimant’s work as a Checkout Operator, they may not use the same claim form; this is because they are not based on the same set of facts if the claims do not relate to the same or similar work.

[46]In terms of the claimants’ work, the critical issue is: what work does the claim relate to? I can see no proper basis, in REJ Robertson’s or the Court of Appeal’s decision, or in logic, for only looking at the claimants’ most recent relevant work. If one claim is based on periods of work in two different jobs and another on a period of work in only one of those jobs then, self-evidently, they are not based on the same set of facts; set of facts x is not the same as set of facts x and y.

[47]What, then, is the basis for the claimants’ submission (skeleton argument, paragraph 16 a.) that, “If two claimants have the same role at the point of issue … the claim form is [not] irregular because one also held a previous role or roles”? It is no longer what Mr Benson said in evidence it was when the original batching decisions were made, namely that REJ Robertson had used the present tense in the relevant part of his decision (“It will require careful consideration by claimants, and those advising them, as to what work they do.”). I had a relatively long discussion with Mr Short QC during closing submissions, which appears at pages 56 to 68 of the transcript4 of day 2 of the hearing, to which I refer. I hope I do him no disservice by summarising his argument as follows:47.1 a claimant, “A” whose claim is about work done in two different jobs actually has two “claims” in accordance with rule 9;

47.2 if the claim of another claimant, “B”, is about work done in one of those two jobs, then A and B have “claims … based on the same set of facts” and it does not matter that A has a second claim that is not based on the same set of facts. I do not accept that argument.

[49]First, I think that each claimant has only one claim, namely the claim set out in the claim form; and that where rule 9 refers to “their claims” it means the whole of the claim of each claimant. In the Rules – not consistently, but even so – a useful distinction is drawn between a “claim”, meaning everything the claimant is complaining about in their claim form, and a “complaint”, meaning each 4 With my permission, the hearing was transcribed by stenographers and the transcripts were provided to all parties and to me. separate and distinct thing the claimant is complaining about.5 A “claim” will often consist of a number of “complaints”, e.g. there may be an unfair dismissal complaint, three complaints of direct sex discrimination, and so on. A claimant whose equal pay claim is about work done in different jobs has more than one complaint, but only one claim.

[50]Secondly, even if it is right that rule 9 contemplates one claimant having several “claims” within a single claim form, the rule requires “their claims” – without qualification – to be “based on the same set of facts”, not “one or some or part of” their claims.

[51]Thirdly, based on REJ Robertson’s decision, endorsed by the Court of Appeal, the principle behind rule 9 seems to be that two claimants may only share a claim form where they are relying on essentially the same facts. Using REJ Robertson’s words, “a Checkout Operator, seeking to establish that her work is of equal value to a Warehouse Operative, cannot be said to base her claim on the same facts as, say, a Bakery Assistant in terms of the essential factual inquiry as to what work she did”. I can see no principled basis for saying that the position is, or should be, different just because, say, the Bakery Assistant became a Checkout Operator a week before the claim form was presented.

[52]I wish it were not so. I think rule 9 would have been better had it included the additional words that I understand Underhill J (as he then was) wanted it to: “or if it is otherwise reasonable for their claims to be made on a single claim form”. Post-fees, I don’t think any useful purpose is served by a rule which requires people to present separate claim forms in circumstances where almost the first thing the ET will do when it receives them is to consolidate the claims.

[53]As was discussed during the hearing, I am particularly concerned about the implications for claims other than equal pay claims. The majority of multiple claims I have dealt with as an Employment Judge were, with hindsight, irregular. The scope for satellite litigation is vast.

[54]Be that as it may, what I think of rule 9 is legally irrelevant. I have a duty to apply the Rules as they are, not as I would like them to be. Doing so, the following sets of claims are irregular pursuant to rule 9 because of the previous jobs issue: Abid; Gurung; Bower; Ashcroft; Chappell. Remaining rule 9 issues

[55]I don’t think it is necessary to make the issue of whether jobs are sufficiently similar for the claims of people doing them to be “based on the same set of facts” more complicated than this: given the findings I have made, above, they plainly aren’t.55.1 Working on the tills and very occasionally stacking shelves is not essentially the same as stacking shelves and very occasionally working on the tills. Of course if, say, there was a 40/60 and a 60/40 split between these two tasks in the jobs of CSAs and GAs, that would be different; but that is not the picture the evidence paints. The fact that a CSA might be perfectly capable of doing the job of a GA and vice versa is almost 5 See rule 1, although it has to be said that this distinction between a “claim” and a “complaint” is not as clear in the Rules as perhaps it could be. completely irrelevant; as already mentioned, the question is what work claimants do, or did, in practice and not what they are, or were, capable of doing.

55.2 Similarly, someone who spends the great majority of their time on the tills or stacking shelves is not doing essentially the same work as someone – a local CSA – who does significant amounts of both activities and various other things as well.

55.3 In my findings of fact, above, I have emphasised the obvious, significant differences between the various Team Leader roles.

[56]In assessing whether the relevant jobs are sufficiently similar for the claimants’ purposes, questions I have asked myself are whether: there might need to be different evidence in relation to different jobs; there might be significantly different points made in defence of claims from claimants in the different jobs. My answer to both questions is that there might. For example: if the work of CSAs were assessed as equivalent to or of equal value to that of relevant male comparators, I don’t think one could say that the same assessment would automatically be made of GAs’ work (at least not on the evidence before me at the moment); material factor defences could be different.

[57]The position in relation to Ms Oliver’s claim and the Carr claim form is more finely balanced. However, I come down on the respondents’ side, principally for these reasons:57.1 Ms Oliver’s official job title was “Sainsbury’s To You Shopper” and she concedes that online shopper work took up more than a minimal amount of her time;

57.2 if it were her case that most of her time was spent doing something other than online shopper work, I would have expected her evidence to be to that effect, and the evidence that was provided on her behalf was not;

57.3 putting these two things together, and doing the best I can on the limited evidence available to me, I think it is more likely than not that most of her work was online shopper work;

57.4 even if there was a 50/50 split between online shopper work and other work, someone who does 50 percent online shopper work and 50 percent other work is not doing essentially the same work as a GA – there are material differences. Rule 9 - summary

[58]Apart from the 38 claims in the 14 claim forms the respondents concede are regular, all of the claims in all of the claim forms to which this preliminary hearing relates are irregular, pursuant to rule 9. Rule 6

[59]Possibly more so than any other court or tribunal, employment tribunals and their predecessor industrial tribunals have been about providing – or trying to provide – a relatively informal forum, with the minimum of complication and technicality, within which people can resolve their disputes without having to have lawyers. Part and parcel of this has traditionally been that they are not places where procedural matters have been at the forefront. The focus has always been on getting a decision on the merits.

[60]Over the years, there have been numerous statements of senior Judges to the above or similar effect, including the Blockbuster and Beddoes cases relied on by the claimants (Blockbuster Entertainment Limited v James

[2006] EWCA Civ 684

& Beddoes & Others v Birmingham City Council

[2010] UKEAT 0037_10_0905

;

[2011] 3 CMLR 42

[61]Where procedural issues have been deemed of great importance, this has usually been a knock-on effect of particular pieces of legislation, for example the parts of the Employment Act 2002 that introduced the short-lived statutory grievance procedures, or the statutory instruments bringing in fees, or the provisions concerning early conciliation.

[62]In relation to the striking out of a case for unreasonable conduct and/or a procedural default, other than where there has been a breach of an unless order under rule 38 (something expressly excluded from the scope of rule 6) or, possibly, where the claimant acted deliberately and cynically, the key consideration is whether a fair trial remains possible or whether the respondent is irremediably prejudiced: see, for example, Weir Valves & Controls (UK) Ltd v Armitage

[2004] ICR 371

. This is because, although rules and orders should be obeyed and disobedience should not be encouraged or condoned, it will not normally be proportionate and in accordance with the overriding objective to strike a case out for breaches of rules or orders where a fair trial remains possible and the respondent is not irremediably prejudiced.

[63]Turning to the law applicable to rule 6 specifically, I remind myself how that rule fits into the Rules as a whole and, in particular, the fact that it does not itself give the tribunal the power to strike claims out. That power is not contained in rule 6, but in rule 37, the relevant part of which is: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds … (c) for non-compliance with any of these Rules or with an order of the Tribunal”.

[64]The way rules 9, 6, and 37 work together in a case like the present one is:64.1 rule 9 is the rule that has been breached and it makes clear, in terms, that if it is breached this is no more and no less than an irregularity under rule 6;

64.2 rule 6 explains what an irregularity is, and in particular the fact that by itself it doesn’t affect anything but does give the ET various options in accordance with other rules, such as striking out pursuant to rule 37;

64.3 the relevant part of rule 37 is to the effect that where there has been a breach of the Rules – any part of the Rules – the tribunal may strike out.

[65]I also note that in the situation in which they find themselves, the claimants do not need to ask the ET to do anything. Similarly to what happens if, say, a claimant misses a deadline set in an order or fails to copy correspondence with the ET to the respondents in breach of rule 92, if the tribunal does nothing, the claim continues unaffected: “A failure to comply with any provision of these Rules … or any order of the Tribunal … does not of itself render void the proceedings or any step taken in the proceedings.”

[66]Unlike in the County or High Court, a claimant in this situation does not have to apply for relief from sanctions, or similar, and would not normally do so. The fact that rule 6 refers to the possibility of the ET doing various things, including “waiving … the requirement”, does not mean anything has to be done. If a breach of a rule or order was drawn to its attention and its decision was to the effect that there should be no consequences for that breach, an ET would not normally make an order to the effect that it was “waiving” any particular “requirement”. Instead, it would simply do nothing, because the default position is that nothing happens.

[67]This brings me to the EAT’s decision. In short: I do not think that what Lewis J had to say about rule 6 is binding on me; in any event, I think it is distinguishable. I take this view because the Court of Appeal allowed an appeal against Lewis J’s decision on rule 6 and because, in any event, fees formed most of the foundations of that decision.

[68]In paragraph 97 of the Judgment of Lewis J, he stated: “The fact that a claim form includes claims made by Claimants which are wrongly included, with the result that there has been an underpayment of fees for presenting a claim will … be a highly material factor in considering how the discretion [to strike out for breach of rule 9] should be exercised.”

[69]In his reasoning on the issue that he labelled, “The Approach to the Discretion Conferred by Rule 6 of the Rules”, contained in paragraphs 98 to 108 of the Judgment, Lewis J identified six factors “which a Tribunal exercising its discretion judicially will need to take into account”, the fifth factor being a ‘catchall’ “any other relevant factor drawn to their attention” and the sixth being the overriding objective. In relation to four out of six of those factors, fees were front and centre (the two exceptions being the balance of prejudice and the catch-all).

[70]For example, Lewis J began his discussion of whether the approach advocated in the Blockbuster case should be adopted by stating (paragraph 101), “Care needs to be taken with the application of that approach to the situation where there is a failure to comply with Rule 9 of the Rules resulting in fees not being paid when they should be paid.” In paragraph 104 of his decision, he stated that he did not consider that approach to be applicable, and that the question was whether “the legal representatives of Claimants” had considered “whether the Claimants could include their claims within one claim form and [demonstrated] how they consider that the requirements of the Rule are met”, and whether, “If they cannot do so, … there is [a] justifiable explanation for that failure”. The main part of his reasoning was this: “If Claimants include their claims in one claim form, they will obtain the benefit of lower fees. If that is irregular, then the Claimants will have obtained the benefit of the reduction in fees when they were not eligible for the reduction and in circumstances which run counter to the purpose underlying the Fees Order.”

[71]Of course Lewis J focussed on fees. At the time of his decision, paying fees was a cardinal feature of starting ET claims, failure to pay the proper fee would lead to a claim being rejected under rule 11 or dismissed under rule 40, and arguments around fees were central planks of the respondents’ submissions. The respondents now submit something to the effect that the parts of his Judgment relating to rule 6 that have not been expressly overruled by the Court of Appeal are binding decisions on points of legal principle. Those submissions seem to me to amount to an invitation to ignore the fact that fees have been abolished since the Judgment was handed down. I don’t think they can possibly be right.

[72]In addition, with fees out of the picture, the Blockbuster case remains binding authority governing how ETs should approach what is now rule 37(1)(c).

[73]My decisions on the rule 6 legal issues, which I shall give now, are made in light of the above. In relation to whether irregularities should be waived or claims struck out under rule 6, is there a relevant burden of proof?

[74]It makes no difference to my decision, which would be the same even if the burden were entirely on the claimants, but given that the default position where there is a breach of rule 9 is that nothing happens, the burden must be on the party that wants something to happen – in this case, the respondents.

[75]I think a lot of the respondents’ submissions proceed from misapprehensions or mistakes about rule 6.75.1 The first of these is that rule 6 is about the tribunal taking action in response to irregularities whereas, in fact, its purpose is to make clear that irregularities do not in and of themselves have any consequences at all.

75.2 The second is that rule 6 itself gives the tribunal powers, whereas, in fact, the rule is to the effect that the tribunal may do as it sees fit, in accordance with other rules.

75.3 The third is that rule 6 requires the tribunal to do one of the things listed within it, whereas, in fact, it expressly states that “the Tribunal may take such action as it considers just, which may include” those things. The use of the word “may” means the ET is not obliged to do any of them, or anything at all; “or may not” is implicit. The use of the words “include” means the list of things, “(a)” to “(d)” that the ET “may” do is not meant to be prescriptive or exhaustive.

75.4 The fourth misapprehension or mistake is thinking about rule 6 purely in connection with breaches of rule 9 and forgetting that it is, with limited exceptions, of general application, to all and any breaches of orders and rules, and must be interpreted accordingly.

[76]One can test the validity of the respondents’ general points about rule 6 by considering the kinds of things to which it most commonly applies: breaches of technical rules, such as the requirement in rule 92 to copy correspondence with the tribunal to other parties; missing a deadline in a case management order by a short period of time. No one would seriously suggest, as the respondents appear to me to be doing in the present case, that the starting point in those situations would be for the party in default to satisfy the ET that it should waive the breach and not strike out that party’s case. Do the changes that were made in 2013 to the wording of the equivalent to rule 9 in the 2004 Rules reflect a policy decision to tighten up the rules relating to the presentation of claims, meaning that a breach of rule 9 creates a particularly serious example of an irregularity under rule 6? In any event, does a breach of rule 9 create a particularly serious example of an irregularity under rule 6?

[77]The short answer to both questions is: no.

[78]No change of substance was made to the equivalent of rule 9 in the 2004 rules, rule 1(7), which stated that, “Two or more claimants may present their claims in the same document if their claims arise out of the same set of facts.”

[79]Two relevant changes were made to the Rules in 2013.

[80]The first was the creation of a rule – rule 6 – stating clearly that a breach of a rule or order, “does not of itself render void the proceedings or any step taken in the proceedings”. That rule did not, however, materially alter the position as it was under the 2004 Rules; prior to the 2013 Rules coming in, it was not the case that breaches of rules or orders in and of themselves rendered void the proceedings or any step taken in them. Given this, it seems to me that rule 6 was created primarily for the avoidance of doubt.

[81]By making explicit for the first time the fact that breaching rules and orders would not automatically have any consequences at all, rule 6 arguably represented a relaxing of the Rules. The respondents’ suggestion that it represented a tightening of the Rules turns things upside down.

[82]The respondents submit that the creation of rule 6 was a “rule change intended to reflect, nay, mandate a cultural change” (Mr Martin QC’s “Outline Submissions”, paragraph 63), the change being from an alleged culture where parties “perhaps thought that they could fail to comply with the rules, without any real consequences” (ditto). I am afraid I disagree entirely. Rule 6 has nothing to say about what the ET should do if there is a breach of a rule or an order. The argument that the rule advocates adopting a strict approach by mentioning (or, as the respondents would have it, ‘emphasising’) “the availability of the strike out power” (ditto) has no more merit than an argument that, by mentioning the possibility of “waiving … the requirement”, the rule advocates the opposite.

[83]The second relevant change in the rules was adding to the grounds upon which a claim or response might be struck out. The power to strike out in the 2004 Rules was contained in rules 13 and 18. They gave that power in circumstances where (rule 13), “a party does not comply with an order made under these rules” and in many other respects mirrored rule 37 in the 2013 Rules. However, one of the innovations the 2013 Rules introduced was a provision – rule 37(1)(c) – stating in terms that a claim may be struck out, “for non-compliance with any of these Rules”.

[84]Prior to the 2013 Rules coming in, if a respondent wanted to have a claim struck out for non-compliance with a rule, it had to argue that the noncompliance constituted unreasonable conduct, or had rendered a fair hearing impossible, or something of that kind.

[85]I accept that this new provision in the 2013 Rules to an extent tightens things up. What I do not accept, though, is that it is particularly focussed on or applicable to rule 9. To my mind there is literally no good reason for thinking that it is. Ignoring the exceptions, rule 6 applies to all breaches of all rules and so does rule 37(1)(c).

[86]The exceptions to rule 6 are specified within the rule itself. They are all instances where breaches of rules have more drastic consequences than merely creating an irregularity, e.g. where a claimant fails to use the prescribed form when attempting to start a claim. When the 2013 Rules came in, particularly given that they came in at the same time as fees, it might well have been assumed that a breach of rule 9 would, similarly, have a special status. But rule 9 itself makes clear that it doesn’t – that where it is breached, this is to be treated simply as an irregularity under rule 6, like a breach of any other rule.

[87]What the respondents are left with, then, is an assertion that because rule 9 relates to the institution of proceedings, breaching it is necessarily a particularly serious matter. That assertion is, as just explained, unsupported by and to an extent contradicted by the Rules. Moreover, even when the fees regime was still in place, the most that could reasonably be argued was that where a breach of rule 9 resulted in the underpayment of fees, that made the breach more serious than it would otherwise have been. With fees gone, any argument that breaches of rule 9 should in principle be treated differently from breaches of other rules is unsupportable. Breaches of rules come in all shapes and sizes and degrees of seriousness. That applies as much to rule 9 as to other rules.

[88]I do not even accept any suggestion that, in practice, breaches of rule 9 are likely to be more serious than breaches of other rules, whether because, supposedly (as Mr Martin QC submits in his outline submissions, at paragraph 66), “for claims which are not based on the same set of facts to be brought in one multiple … presents substantial challenges in terms of the need to sift, sort and case manage the claims … [and because] a greater administrative burden would be imposed if cases initially assumed to be based on the same set of facts (and managed accordingly) were later revealed to be based on a different set of facts”, or otherwise.88.1 Multiple claims of all kinds, not just equal pay claims, were brought in a way that we now know to be irregular for years without this causing any noticeable difficulties. In saying this, I am not just relying on my memory – the lack of reported cases on the “same set of facts” point speaks volumes.

88.2 Outside of the equal pay sphere, multiple claims continue routinely to be brought in this way, and no one complains or seems to think it is a problem. Certainly, it is not something that Employment Judges complain about amongst themselves.

88.3 In my experience, proceedings involving multiple claims are never case managed on the basis of whether or not claimants’ claims are “based on the same set of facts” in a narrow, rule 9 sense.

88.4 It can be positively unhelpful from an administrative point of view for claimants whose claims are closely linked but don’t satisfy the rule 9 test to be compelled to use separate claim forms. In deciding whether to strike out or instead to waive the irregularity, is the approach to be adopted a version of that advocated in the Blockbuster case, or is the important thing (or, at least, a very important thing) whether the claimants, through their solicitors, took “sufficient care to ensure that” they “were including claims in a claim form which were based on the same set of facts” (paragraph 102 of the EAT’s decision) and whether there is a “justifiable explanation” (paragraph 104 of the EAT’s decision) for what has occurred?

[89]I have already answered this question:89.1 the correct approach is the Blockbuster approach, and, in any event, that case is binding on me in the present situation;

89.2 Lewis J’s decision that this was not the right approach was predicated on the existence of the fees regime, which no longer exists.

[90]Even following the Unison decision, there remains a legitimate argument for saying that Blockbuster does not apply, but it is not an argument that, as far as I can see, has been advanced by the respondents. As explained in my decision on the previous legal issue, prior to the 2013 Rules, there was no rule stating that claims and responses could be struck out for breaching the Rules. Further, although the 2004 Rules did contain provisions (rules 13(1)(b) and 18(7)(e)) permitting strike-outs for breaches of orders, and although the Blockbuster case concerned a claimant who repeatedly breached tribunal orders, the grounds upon which the ET had in that case struck out the claimant’s originating applications was that, “the manner in which the proceedings have been conducted by or on behalf of the applicant … has been scandalous, unreasonable or vexatious”.

[91]The reasons I do not accept that argument, and take the view that the Blockbuster line of authority does apply, are as follows:91.1 usually, those who apply for their opponent’s cases to be struck out for breaches of orders allege, as part of their application, that the breaches constitute unreasonable conduct. Appellate authorities – such as the Blockbuster case itself – have tended to deal with breaches of orders and unreasonable conduct in the same breath;

91.2 for example, in Weir Valves v Armitage

[2004] ICR 371

, referred to and approved in the Blockbuster case, the EAT were considering a case where an ET had struck out a response because of the respondent’s failure to exchange witness statements on time. It isn’t entirely clear, but it appears that the basis of the strike-out was both breach of an order and unreasonable conduct. In any event, the EAT mentioned (in paragraph 11 of its decision) the powers to strike out both for breach of an order and for unreasonable conduct. In its discussion (from paragraph 16) about the situation where “there is a court order and there has been disobedience to it”, the EAT did not say whether they were dealing with the rule concerning breaches of orders or the rule concerning unreasonable conduct or both. The unspoken assumption seems to have been that it didn’t matter because the same principles would apply;

91.3 the Blockbuster line of authorities has always been understood to apply to applications to strike out for breaches of orders as much as to applications to strike out for unreasonable conduct;

91.4 in the 2013 Rules, the powers to strike out for breaches of order and for breaches of rules are contained in the same part of the same rule – rule 37(1)(c), which provides that “all or part of a claim or response” may be struck out, “for non-compliance with any of these Rules or with an order of the Tribunal”;

91.5 if Blockbuster applies to the second half of rule 37(1)(c) – and it does – it must, logically and in accordance with the normal rules of interpretation, apply to the first half too.

[92]This is not to say that the factors mentioned by Lewis J in the EAT in the present case – the seriousness of the breach, the circumstances in which the breach came about, the balance of prejudice – are irrelevant. Far from it. They are the kind of factors that have appeared in checklists in the past, such as that set out in the pre-2013 version of CPR 3.9, routinely used by ETs in the noughties until the Court of Appeal, in Governing Body of St Albans Girls’ School v Neary

[2009] EWCA Civ 1190

, held that its use was not obligatory. But the respondents’ submission is to the effect that, as a matter of law, of preeminent importance is whether the claimants and their legal representatives can demonstrate that they took reasonable care to ensure that rule 9 was complied with. I do not accept that submission, not least because it would be contrary to authority and to the overriding objective to accord pre-eminence to any single factor of that kind.

[93]The respondents’ last throw of the dice in relation to this issue is to refer to what Bean LJ said in the Court of Appeal, in paragraph 45 of the decision, in relation to Fenton: “Where the ET has already held in a published decision that a multiple claim of this type was irregularly presented there could, he [Mr Short QC] accepted, be no viable argument for waiving the irregularity.”

[94]The respondents’ submissions on this seem to be along these lines:94.1 Bean LJ was saying that REJ Robertson’s decision should have been treated as definitive from the outset, and should have been followed to the letter by anyone aware of it, and that there could be no excuse for not following it, and that, therefore, if claimants aware of it did not follow it, their claims should be struck out without mercy;

94.2 this demonstrates that the Court of Appeal thinks breaches of rule 9 should be treated particularly seriously.

[95]I disagree. Bean LJ’s comments were obiter. They related to an issue that had not been argued before the Court of Appeal, which was not actually before the Court of Appeal or the EAT, and which had not even been argued before the ET at first instance. That issue was whether, if the claimants were wrong as to how rule 9 should be interpreted, the Fenton claimants’ claims should be struck out. The Fenton claim form was deliberately put together in breach of REJ Robertson’s decision in Brierley. The claimants wanted and expected REJ Robertson to strike it out, to ensure that the question of how rule 9 should be interpreted could be tested on appeal. It would not have been open to Mr Short QC to raise a “viable argument for waiving the irregularity” in the Court of Appeal, even if he had wanted to.

[96]I think the most that can reasonably be taken from this part of the decision of Bean LJ is that if someone chooses deliberately to flout rule 9, a strike-out is likely; and even that is arguable because, consistent with the rest of the Court of Appeal’s decision, what should happen will always depend on all the circumstances of the case.

[97]The final rule 6 legal issue that was discussed during the hearing is whether, when choosing between waiving the irregularity and striking out claims, an ET can legitimately distinguish between different claims brought in the same irregular claim form. I don’t propose to deal with this issue because it is unnecessary for me to do so, my firm view being that no claims on any claim forms should be struck out. Rule 6 / striking-out – conclusions

[98]I shall now explain why I think it would be contrary to the overriding objective and disproportionate to strike out any of the irregular claims.

[99]None of the failures to comply with rule 9 was wilful or reckless, or stemmed from potentially improper motives such as a desire to avoid or minimise fees. In every case, the claimants’ solicitors genuinely believed they were complying with the rule.

[100]In relation to the 4 Ahmed claims, I think it would be unfair to criticise the claimants’ solicitors in any way. I would echo the comments of Longmore LJ about Brierley, contained in paragraph 53 of the Court of Appeal’s decision: “one is just left in the position that the parties were bona fide disputing the true meaning of Rule 9. I cannot see that arguing a point of construction of the rules is inexcusable. Of course, the claimants' construction has turned out to be wrong, but it cannot be inexcusable or unjustifiable to argue for a construction of the rule with which a court ultimately disagrees”.

[101]If it is being suggested that the claimants’ arguments about how rule 9 should be interpreted were hopeless and should never have been advanced, and that their solicitors should all along – or at least once the respondents’ raised the point in Brierley – have known what the correct interpretation was, and have acted accordingly, I would remind the respondents that they lost, and that the claimants won, before Judge Pirani.

[102]In relation to the other claims, the claimants’ solicitors got it wrong, and by taking more care and being more cautious where there was (to me) obvious room for doubt – for example in relation to Ms Oliver – they could quite easily have got it right. However, I am not satisfied that there was negligence here. Some of the decisions that were taken about what compliance with REJ Robertson’s decision required appear surprising. The previous jobs issue in particular I can only see one way. However, I have the benefit of hindsight and of the EAT’s and Court of Appeal’s decisions, things the claimants’ solicitors did not have at the time these claims were presented. And I note that the claimants have continued vigorously to argue their points. It may well be that the EAT or Court of Appeal, in this or in some future case, will prove them right and me wrong.

[103]The breaches of rule 9 have not themselves caused any problems for the ET. The regular and irregular claim forms have not been case managed differently and I can at present see no reason to case manage them differently in the future.

[104]For much the same reasons, I would not class these as serious breaches of rule 9. An example of a non-deliberate but serious breach of rule 9 might be a case where the claim form contained a significant number of claims that had little to do with each other and did not belong together on any reasonable view; that would never be case managed, let alone heard, together; and that would inevitably have to be ‘deconsolidated’ by the ET.

[105]No significant prejudice would be caused to the respondents by “waiving … the requirement” in every case. Having had most of their prejudice arguments rejected by the EAT and/or Court of Appeal already, the respondents are left with the following (outline submissions, paragraphs 74 to 75): the Respondent faces prejudice in having to face undifferentiated claims, and the costs and inconvenience of the procedural consequences of that …. A multiple claim form that complies with rule 9 assists with the grouping together of Claimants for case management purposes. An irregular multiple claim form hampers this process as there is a need to establish the correct position in respect of each claim, and to address the irregularity. This work must take place before it is possible to move on to more substantive case management. The failure on the part of the Claimants to comply with rule 9 has made case management more complex and has created delay and increased costs.

[106]This is incorrect.106.1 The breaches of rule 9 have not, as a matter of fact, hampered case management in this case or made it more complex, to the best of my knowledge.

106.2 Above, I made the general point that case management does not and never has proceeded by reference to whether all the claimants’ claims are based on the same set of facts. That would be too narrow a test to be useful for case management purposes.

106.3 It would be fair to say that many of the claimants’ claims are not pleaded with the precision and detail that one would ideally like, but that is not a product of any breaches of rule 9, and applies equally to regular and irregular claim forms.

106.4 Similarly, although case management in equal pay proceedings is greatly facilitated by the ET being able to discover, readily, which claimants rely on periods of work in the same jobs, that can be achieved just as easily with irregular claim forms as with regular ones, and in many instances is easier if a small number of irregular claim forms are used.

106.5 Essentially, assuming the claimants have not taken leave of their senses and included on the same claim form claims that don’t even belong in the same piece of litigation, or something like that, compliance or non-compliance with rule 9 is in practice irrelevant to case management. I again refer to the fact that until 2014, despite noncompliance with rule 9 and its predecessors being endemic for a decade or more, no one identified a problem.

106.6 Breaches of rule 9 have not in themselves caused delay and increased costs. These were caused by the respondents’ tactical decision to take and pursue the rule 9 point, which has been to the Court of Appeal and back. The respondents’ argument that it was the claimants’ fault that there was a point to take, and that, therefore, the delay and expense is also all the claimants’ fault, is superficially logical, but flawed. The fact that the respondents did not get their costs in the Court of Appeal, where they won, suggests that Court did not accept it. I express no view on whether it was reasonable or unreasonable for the respondents to have sought to have claims struck out for non-compliance with rule 9. But a party to litigation is not obliged to take every potentially valid point that it is open to it to take, and the fact that the respondents won on the rule 9 point does not necessarily make it reasonable for the respondents to have sought a strike-out.

106.7 Additionally, it occurs to me that there is a circularity to this part of the respondents’ submissions, which amount to saying that I should strike out because of the costs and delay caused by their application to strike out.

[107]The claimants would suffer significant prejudice were I to strike out the irregular claims:107.1 a dozen or so claimants, who did not reissue claims because of limitation problems, would lose their claims completely;

107.2 the other claimants would be obliged to rely on their reissued claims. At least half of the claimants have more than 6 years’ continuous employment with the respondents and so would lose part of their claims if they had to rely on their reissued claims;

107.3 as I understand it, the respondents have not completely disavowed the argument that if the original claims are struck out, the reissued claims are an abuse of process. If that argument is correct, for me to strike out the irregular claims would result in every affected claimant losing the whole of their claims.

[108]A fair trial remains possible. No one has seriously suggested otherwise.

[109]In summary, virtually everything of relevance points away from striking out.

[110]I should add that if I am wrong and the respondents are right about the law relating to rule 6, and were I to apply the law as the respondents have argued I should, I don’t think my overall decision would be any different. If the claimants have to demonstrate that they took reasonable care to ensure that rule 9 was complied with in relation to every irregular claim form, I agree they have not done this; but even so, and even if this is a particularly important factor, it would still not be proportionate to strike these claims out. Costs

[111]Rule 6 states that where there has been non-compliance with a rule, such as rule 9, “the Tribunal may take such action as it considers just”. Other than striking out claims, the only action the respondents have suggested I take in relation to the claimants non-compliance with rule 9 is to make a costs order.

[112]No specific costs application has been prepared and there is no costs schedule. During submissions, Mr Martin QC told me that, in light of the Court of Appeal’s decision on costs, the only costs being sought at this stage are the costs of this hearing and of preparing for it, or a proportion of them. He also confirmed that the basis upon which the respondents were seeking those costs was that the claimants had breached rule 9 and that this hearing would never have needed to take place had that rule been complied with.

[113]The relevant part of rule 6 that relates to costs is: A failure to comply with any provision of these Rules … does not of itself render void the proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include … – …. (d) awarding costs in accordance with rules 74 to 84.

[114]As I noted earlier in these Reasons, rule 6 does not itself empower an ET to strike claims out. For similar reasons to those given, above, in relation to striking-out, I don’t think rule 6 itself gives the ET a power to award costs either. It refers to the possibility of awarding costs, “in accordance with rules 74 to 84”. It must follow that one can only award costs ‘under’ rule 6 if the conditions for awarding costs in rules 74 to 84 are satisfied.

[115]The formulation “in accordance with” in the part of rule 6 relating to striking-out causes the respondents no particular difficulties. This is because the rule referred to in that part of rule 6 – rule 37 – itself contains an express power to strike claims out where there has been non-compliance with one of the Rules: rule 37(1)(c).

[116]Rules 74 to 84 contain no similar power to award costs for breaching rules. In the costs rules, the nearest equivalent to rule 37(1)(c) is the first half of rule 76(2): “A Tribunal may … make [a costs order] where a party has been in breach of any order or practice direction …”. In the 2004 Rules, the ET’s powers to award costs roughly mirrored its strike-out powers. It seems that, for whatever reason, when an express power to strike out for breaches of the Rules was added to the ET’s armoury in 2013, no new power to award costs was created to mirror it.

[117]What this means is that if a respondent wants its costs caused by a claimant’s breach of one of the 2013 Rules, it has to argue that the claimant’s breach was unreasonable conduct, or otherwise engages a discretion to award costs under rules 74 to 84.

[118]Reminding myself, from the transcript, of Mr Martin QC’s oral submissions about costs, he said that we were not concerned with an application under rule 76, and that any such application “is for later”. He also said that we were solely concerned with rule 6. The problem with this is that rule 6, if it empowers the ET to do anything in relation to costs, permits the ET only to award costs “in accordance with rules 74 to 84”.

[119]In fairness to Mr Martin QC, this point about the relationship between rule 6(d) and rules 74 to 84 was not discussed during the hearing. It did not occur to me until afterwards. I shall assume in the respondents’ favour that the costs application is made on the only conceivable basis it could validly be being made: on the basis that the breaches of rule 9 constituted unreasonable conduct.

[120]Consistent with my decisions on other issues, there was no unreasonable conduct here. The claimants interpreted rule 9 wrongly, but I repeat the observations I made earlier in these Reasons about not being satisfied that there was negligence, and about rejecting any argument to the effect that the claimants’ case on rule 9 was always hopeless.

[121]Perhaps more importantly, I reject the notion that the claimants breaches of rule 9 in any meaningful sense caused this hearing to take place. Again, I repeat another part of this decision: paragraph 106.6 above.

[122]In submissions on costs, Mr Short QC commented that if I decided, as I have done, not to strike out claims, then what the respondents would really be seeking would be their costs of a failed application. His point is well made. Given that the Court of Appeal did not award them their costs when they won, it would be rather strange for me to award the respondents their costs when, overall, they have lost.

[123]In summary on costs, I do not think I have any discretion to award costs in the absence of any unreasonable conduct or similar. Even if I am wrong on this, I would not make a costs order in the respondents’ favour in relation to this hearing because: it is not the claimants’ fault that this hearing has taken place; if I had to say who ‘won’ this hearing, I would say the claimants. Signed by: v EMPLOYMENT TRIBUNALS Claimants: Mrs A Ahmed & others Respondents:(1) Sainsbury’s Supermarkets Limited

(2) Lloyds Pharmacy Limited PRELIMNARY HEARING Heard at: Midlands (West) (in public; via CVP) On: 18 December 2020 Before: Employment Judge Camp Appearances For the claimants: Mr A Short QC & Mr B Williams QC For the respondents: Mr D Martin QC

[124]The particular facts that strengthen Mr Smyth’s case are that he continued to perform his Team Leader role while he was completing his management training, and he did not start that training until after his claim was presented. This means that when his claim form was presented, whatever his job title at the time, there was only one job role in respect of which he could make his claim – that of Team Leader.

[125]With Mr Smyth, as with all of the claimants affected by the amendment issue, the correct question is not what their job title was when they presented their claim form but what job role or roles their claim form relates to; and – absent special circumstances that don’t arise in relation to any of the test claimants – that is almost bound to include the job role they were performing when they presented their claim forms (or, in the case of a claimant whose employment had ended, the role they were performing when it ended), whatever their official job title at the time. Mr N Scholes

[126]Mr Scholes made his claim on a multiple claim form, presented on 18 August 2016, in which his job title was given as Team Leader and his dates of employment were given as 28 October 2012 to the “present”. The respondents no longer object to that job title in relation to the period from 28 October 2012. The potential problem arises from the fact that Mr Scholes’s employment with Sainsbury’s in fact began on 4 October 2010, and that between then and 28 October 2012, he was doing a different job that I shall refer to as “Commercial / Backdoor”, a title I understand to be acceptable to both sides, albeit the respondents’ preferred title is different. The respondents’ case is that Mr Scholes cannot add that job title to the register and pursue a claim in respect of the period before 28 October 2012 without making a substantive amendment to his claim.

[127]The evidence before me is silent as to why incorrect dates of employment were given for Mr Scholes in his claim form. If I had to make a decision as to whether or not to give him permission to amend, that might be important. But what was going on in Mr Scholes’s head is irrelevant to how his claim form should be construed.

[128]The fact that Mr Scholes gave a single job title in his claim form and now wishes to add another one is not significant. I have already explained in connection with other lead claimants why I reject the respondents’ submissions about changing job titles. What potentially puts Mr Scholes’s case in a different category from that of the other lead claimants is the argument: that the claim set out in his claim form is made from 2012; that what he wants to do is make it from 2010. If that argument were correct, that might well constitute a substantial change for which permission to amend would be required.

[129]Putting myself in Sainsbury’s shoes at the time the claim form was presented, with its knowledge of Mr Scholes:129.1 I would note that he had got his employment dates wrong, and was therefore not saying, “I was employed from 2010 but make my claim only for the period from 28 October 2012”. Certainly, I would not assume that that was what he was saying;

129.2 one reason I would not assume that that was what he was saying is that my starting assumption with Mr Scholes would be that he would want to maximise his claim. As with the other lead claimants, why would Mr Scholes not want to make the fullest possible claim he could?;

129.3 taking this into account, I would think (in the absence of evidence to the contrary) the most likely scenario to be that Mr Scholes was claiming for the full 6 year period and had just made a mistake with his dates;

129.4 I would then note the part of the Details of Claim beginning “In addition to the job titles provided …”. For reasons already given in relation to other lead claimants, this would turn that scenario from the most likely one to a highly probable one.

[130]In fairness to the respondents, their arguments are not as weak in relation to Mr Scholes as to the other lead claimants. On the face of his claim form, the only place where a claim relating to work done before 28 October 2012 can be found is in the “In addition to the job titles provided … that form part of a stable working relationship with the Respondent” paragraph. It is conceivable that in his case, a reasonable person with Sainsbury’s knowledge might genuinely need to doublecheck, just to make sure, that he [Mr Scholes]: had indeed made a mistake with his dates; did not accept there was a break in the stable working relationship on that date; was not meaning to cut off his claim.

[131]Checking that kind of thing is, it seems to me, part of what the register is for. I have already mentioned that the register can be used to provide further particulars of claims and responses. The register process involves the provision of schedules of information, then counterschedules, then replies to the counterschedules, and so on. This can involve, and in Mr Scholes’s case did involve, the respondents asking questions and the claimants giving answers, in the following way:131.1 the first iteration of the register after Mr Scholes’s claim form was presented simply mirrored what was in his claim form, as one would expect. It took the case no further because one couldn’t know whether the dates in it were given by mistake, duplicating a mistake in the claim form, or given wilfully;

131.2 when Sainsbury’s replied to it, and first highlighted the fact that Mr Scholes was employed from 2010 and not 2012, they were effectively asking him a question along these lines, “Now you have been reminded that your employment started before 28 October 2012, can you confirm whether your claim goes back to the start of your employment or only goes back to that date?” or (a rather different question, but getting at the same thing) “Is your case that the job you held before 28 October 2012 “formed part of a stable working relationship with the Respondent” in accordance with the paragraph beginning “In addition to the job titles” in the Details of Claim?”;

131.3 it is Mr Scholes’s response to Sainsbury’s reminding him that he was employed by them from 2010 that was critical. If that response, in the form of the next iteration of the register produced on his behalf, was to accept Sainsbury’s dates of employment and, more importantly, to seek to take his claim back to 2010, then he had answered the questions posed and confirmed that (as would objectively – see above – have seemed highly probable), “In addition to the job title” Team Leader, his “claim relates to” the Commercial / Backdoor job that he “held in the past 6 years” and that, on his case, formed “part of a stable working relationship with the Respondent”. This would not be Mr Scholes changing his claim but merely him confirming what the claim form means;

131.4 if, on the other hand, his response had been to adopt Sainsbury’s dates of employment but to maintain a claim only from 28 October 2012, then he would have been telling Sainsbury’s and the Tribunal that his claim form should be construed as only making a claim in respect of work done from that date. And having given such a response and limited his claim in that way, I don’t think he would have been able subsequently to backtrack from the concession he had made without the Tribunal’s permission.

[132]Although I am not entirely sure of precisely what each relevant iteration of the register stated about Mr Scholes, despite the efforts of the parties’ legal teams to explain this to me, my understanding is that as soon as Sainsbury’s suggested dates of employment (and another job role) going back to 2010, Mr Scholes sought to adopt that suggestion and to make his claim from then.

[133]In summary: Mr Scholes’s claim form is properly to be construed as always having contained claims in respect of all jobs he held with Sainsbury’s in the 6 years before he presented his claim form; by adding and/or changing job titles in the register in relation to that period he is not changing his claim and he does not need the Tribunal’s permission to do it. Other issues

[134]During the hearing I said that my intention was to deal with all of the issues in the List of Issues come what may. The plan was to limit the need for remission in the event of a successful appeal against my decision. However, having decided that none of the lead claimants needs permission to amend, I have been unable to come up with a satisfactory basis for making a decision as to whether I would grant them permission to amend if I were wrong about them not needing it. The difficulty is that: to make a coherent decision as to whether to grant permission, I would have to be able to see and follow the path that might have led me to the conclusion that they needed permission; and I am, unfortunately, unable to do so. AMENDMENT ISSUES: SUMMARY & CONCLUSIONS

[135]The lead claimants’ individual cases are dealt with as follows: Ms Froggatt – paragraphs 86 to 98 above; Ms Minter – paragraphs 99 to 101 above; Mrs Vaughan – paragraphs 102 to 111 above; Mr Wiltshire – paragraphs 112 to 117 above; Mr Whiteway – paragraphs 118 to 120 above; Mr Smyth – paragraphs 121 to 125 above; Mr Scholes – paragraphs 126 to 133 above.

[136]None of the lead claimants, to each of whom one or more of issues 3.1.1, 3.1.2, and 3.1.3 in the List of Issues (see paragraphs 67 and 77 above) applies, needs permission to amend in the applicable scenario. They can make the relevant changes and additions to job titles in the register without amending anything of substance in their claim forms. It is job roles and not job titles that are important; and their claim forms have always incorporated claims relating to all of the periods of work in all of job roles they wish to claim about. Signed by Lead Case Number: 1302374/2015 Multiple Cases - 10291 and 8614 EMPLOYMENT TRIBUNALS Claimants: Mrs A Ahmed & others Respondents:(1) Sainsbury’s Supermarkets Limited

(2) Diamond DCO Two Limited, in voluntary liquidation (formerly Lloyds Pharmacy Limited) STAGE 2 EQUAL VALUE HEARING Heard at: Birmingham On: 20 (reading day), 21, 22, 25 to 27 March, 8 to 12, 15 to 18 April, 12 (reading day), 15 to 17 July 2024 (plus Tribunal decision-making in private on various dates between June 2024 & February 2025) Before: Employment Judge Camp; Mr E Stanley; Mrs N Gill Appearances For the Claimants represented by Leigh Day: Mr A Short KC; Mr S Margo, counsel For the Claimants represented by Thompsons Solicitors: Mr C Kennedy, counsel (March & April 2024); Mr S Brittenden KC (July 2024) For the Respondents: Mr D Stilitz KC; Mr J Milford KC; Mr M Lee, counsel Independent experts: Kay Gilbert; Simon Tingle (not present for the whole hearing)

[1]Sainsbury’s stores across Britain. They are claiming that their work was and is of equal value to that of better paid men working in Sainsbury’s distribution centres.

[2]This was a stage 2 equal value hearing under the Employment Tribunals (Equal Value) Rules of Procedure. Under those Rules, a stage 2 hearing is for the Tribunal to “make a determination of facts on which the parties cannot agree which relate to the question”. The “question” is: “whether the claimant’s work is of equal value to that of the comparator”. We shall call this the “equal value question”.

[3]At previous preliminary hearings, it was agreed and/or ordered that we – the Tribunal – would make the “determination of facts” in relation to six Lead Claimants and five Comparators. These are the eleven people named in the Judgment, above. We are making that determination over a period of time everyone has been referring to as the “relevant period”, which is from 27 April 2009 to 16 March 2020. In general, we will therefore be using the past tense when discussing the Lead Claimants and the Comparators, even though they were all still working for Sainsbury’s when this hearing took place.

[4]Each of the Lead Claimants worked in a different store and had a different job role: Linda Davis, Sales Assistant; Amanda Solts, Counters Assistant; Kate Elliott, Customer Service Assistant (“CSA”); Jayne Adams, Local Customer Service Assistant (“LCSA”); Joanne Mortin, General Assistant (“GA”) (Days); Ruth Randall, GA (Nights).

[5]All of the Comparators were Warehouse Colleagues. Each of them worked in one of two distribution centres: Krzysztof Ozog, Noel Crowdy and Leonard Butcher in the Rye Park Distribution Centre in Hoddesdon, Hertfordshire; Ian Barnes and Mark Lewis in the Hams Hall Distribution Centre in Coleshill, West Midlands.

[6]The bulk of our decision consists of the contents of the far right-hand column, headed “TRIBUNAL'S FINDINGS RE. [name of Lead Claimant or Comparator]”, in tables that run over several hundred pages from page Error! Bookmark not defined. below. We shall sometimes refer to this as “our column” in the “attached tables”. The tables were created by the parties with that column blank. They were provided to us: on 14 June 2024 in relation to the 1 There are also male claimants making so-called ‘piggy-back’ claims. 2 of 548 Lead Claimants; on 16 September 2024 in relation to the Comparators. They contained most of both sides’ submissions, although the parties produced conventional separate skeleton arguments as well. For convenience sake, we have not changed anything in any column of the tables other than our column and have included the tables in full.

[7]The purpose of the Tribunal making the “determination of facts” that it is making is to enable the independent experts to prepare reports on the equal value question, for use at a final hearing / stage 3 equal value hearing. The way they are going to do that, as is normal in Tribunal cases of this kind, is by evaluating the job roles of the Lead Claimants and the Comparators, by reference to extremely detailed job descriptions, and comparing the two, by reference to various ‘factors’ the experts have chosen.

[8]Job descriptions of this kind have been prepared for each of the Lead Claimants and each of the Comparators. Much of the job descriptions is agreed, but a significant amount is disputed, particularly in relation to the Lead Claimants. The tables contain: both sides’ proposed wording for all paragraphs in dispute in the job descriptions; our decision as to what the wording should be (or, in some instances, a decision that the paragraph in question should be deleted completely); and reasons for that decision. We have retained in this Reserved Judgment and Reasons what the parties wrote in the tables partly because our reasoning often involves us incorporating parts of the Claimants’ or the Respondents’ submissions, e.g. “We agree with [Cs / Rs]”.

[9]Other abbreviations we have used are: “JD” for job description; “JH” for job holder, i.e. the Lead Claimant or Comparator whose job description we are dealing with; “[initials of Lead Claimant or Comparator]”, i.e. “KE” for Kate Elliott, to refer to a particular Lead Claimant or Comparator. Generally, we have in our column in the attached tables used the abbreviations the parties have themselves used in them and in the job descriptions. The evidence

[10]The hearing was split into two parts. The first part, in March and April 2024, concerned the Lead Claimants. The second part, in July 2024, concerned the Comparators. We had witness evidence from over 50 witnesses, the majority of whom, including all of the witnesses during the Comparators part of the hearing, gave evidence for Sainsbury’s. Most witnesses gave oral evidence, were cross-examined, and asked questions by the Tribunal. This included all of the Lead Claimants and all bar one of the Comparators. (Mr Lewis was apparently too unwell to give oral evidence, even by video). The independent experts also posed some questions to witnesses.

[11]We were greatly assisted by the fact that we received a complete transcript of the day’s hearing every evening, provided by official law reporters, at Sainsbury’s expense. Typically, these are referred to in the attached tables in the following way: “T[day of transcript]/[page number]/[line number, if applicable]”. 3 of 548

[12]There were also well over 10,000 pages of documents, split into numerous ‘bundles’, as well as written submissions and a bundle of authorities.

[13]We did have two ‘official’ reading days and we did as much reading as we could as we went along. Given the quantity of statements and documentation, though, it was impossible to read everything and we were heavily reliant on the parties referring us to the crucial parts of the evidence during cross-examination and in submissions.

[14]We recognise the importance of the proceedings to the parties and the fact that it will cost Sainsbury’s an enormous sum of money in the medium to long term if it loses. Nevertheless, we were disappointed by the parties’ apparent inability to find more common ground than they did in relation to the job descriptions. The attached tables alone totalled over 400 A3-size pages before we added anything to them. We felt that the number of disputed items was less a reflection of the complexity, importance and/or contents of each job holder’s role than of the parties’ inability to compromise over wording. Had the parties taken more account of rule 22 and the overriding objective, the hearing and our decisionmaking process would have been much shorter.

[15]That is the main reason why this Reserved Judgment and Reasons is being sent out getting on for a year after the start of the hearing. It has been a mammoth task for the three of us to go through each of the disputes put before us, read or re-read the relevant parts of the evidence, and make a unanimous reasoned decision; and for the Employment Judge then to write all of those decisions up.

[16]The last thing of note in terms of evidence and other material we were asked to consider is that on 25 and 26 April 2024, at Sainsbury’s (unopposed) request, we went on site visits to the Rye Park and Hams Hall distribution centres and to the Maypole Superstore in Birmingham and the Solihull Haslucks local store. (None of the Lead Claimants had worked at either store). As we emphasised to the parties’ representatives at the time of the site visits, the site visits were not part of the hearing and what we were shown and told during them was not part of the evidence. Instead, their sole purpose was to help us get a better understanding of the evidence properly put before us during the hearing. The visit to the Rye Park Distribution Centre was useful in this respect, the other visits much less so, not least because of changes Sainsbury’s has made since the relevant period. Witness credibility

[17]Points are made about individual witness’s credibility on particular issues in the Reasons sections in our column in the attached tables.

[18]We don’t doubt that every witness who attended the hearing gave evidence honestly and to the best of their ability. However, there is an unavoidable issue about how reliable the evidence of any witness is in this case. The problem is 2 Of the 2013 Rules of Procedure, which is now rule 3 in The Employment Tribunal Procedure Rules 2024. 4 of 548 particularly acute in relation to the Lead Claimants and to Sainsbury’s witnesses who gave evidence about what supposedly happened during parts of the relevant period, many years ago.

[19]The problem arises from a combination of the following:19.1 in paragraph 58.2 of the Respondents’ Skeleton Argument, it is stated that, “for the most part, the Lead Claimants’ JDs do not suggest that their work varied over the relevant period”. That is not, we think, entirely accurate; but, in any event, everyone now seems to agree that what each Lead Claimant did changed. For example, at different times: there were changes to shift patterns and working hours; each Lead Claimant stopped doing certain tasks and started doing others; and did more of a certain task and less of another; or did it more or less frequently; and did certain tasks differently;

19.2 as we have already mentioned, all of the Lead Claimants were still employed in Sainsbury’s stores when they gave their evidence. There has been some change to some of their work in the four years between the end of the relevant period and this hearing;

19.3 if there had been no changes over time, the Lead Claimants would not have had this credibility problem because, in that scenario, all they would have to do would be to describe the work they were doing in 2024. As it is, all witnesses, including the Lead Claimants, had to remember how things were in 2020 at best; and, at worst, as long ago as 2009. The fact that the preparation of witness evidence (including relevant parts of job descriptions) no doubt began in 2022 or 2023 does not significantly improve the situation;

19.4 everyone has fallible memory, particularly in relation to things that happened years ago. A number of witnesses expressed a confidence in their own powers of recall that was unwarranted. It was unwarranted not because they struck us as unusually forgetful, but because they are human beings;

19.5 the potential for the witnesses to misremember things was increased by the fact that nearly all of them continue to work for Sainsbury’s and that there are very few examples of a factual dispute we have to resolve where, in the final analysis, anyone’s evidence in relation to it was to the effect that what a Lead Claimant did was exactly the same all the way from 2009 to 2024;

19.6 when the Lead Claimants gave their evidence in 2024 about what they were doing in their work 4 to 15 years previously, it is inevitable that they will have mixed up, for example, what they have been doing only relatively recently with what they were doing towards the start of the relevant period. It is similarly inevitable that Sainsbury’s witnesses will have mixed up what practices were followed when they worked with a Lead Claimant in a particular store with those followed in other stores at other times. 5 of 548

[20]We are therefore unconvinced when, for example3, one of the Lead Claimants tells us with conviction that between two dates in the mid-2010s she encountered a particular situation once a month rather than once a quarter; and we are equally unconvinced when one of Sainsbury’s witnesses, a manager who perhaps saw the Lead Claimant a dozen times a day, with equal conviction tells us that it was at most twice a year.

[21]In the above circumstances, in relation to matters in dispute we give little weight to the evidence of every witness on points of detail where the evidence was not substantially corroborated by contemporaneous documentation. Many, probably most, of the factual disputes we have been asked to resolve concern points of detail; and there is little contemporaneous documentation that substantially corroborates a witness on a relevant point.

[22]We have, even so, done our best to make findings of fact to resolve disputes between the parties on the basis of the unavoidably unreliable evidence we have. The decisions we have made on these points have often been based on what we see as the inherent probabilities of the situation and, to a more limited extent, on documentary evidence. But there are some disputed parts of job descriptions where we have felt unable to be as precise in our findings as the parties would like us to be, because the evidence is insufficient to prove the fact the dispute concerns on the balance of probabilities with that degree of precision.

[23]There is a further valid general witness credibility point, which applies just to the Lead Claimants.

[24]The Lead Claimants’ witness statements all include something along these lines, in an introductory section (this specific wording comes from JM’s witness statement): “I have read and agree with my Job Description relating to the disputes in this claim in relation to my role of General Assistant (Days). … The paragraph numbers referenced [in this statement] correspond to paragraphs in my job description which contain disputed wording. The paragraph references should not be viewed as an exhaustive list. Where the statement does not expressly mention a paragraph in dispute, I rely on the facts as set out in my job description.” We shall call these words and their equivalents the “general words of incorporation”.

[25]We do not recall it being discussed, but it became reasonably clear during the part of the hearing dealing with the Lead Claimants that neither side was going to cross-examine on every single matter in dispute on the face of the job descriptions. Presumably this was wholly or mainly because it would otherwise have been impossible to get the hearing finished within the allocated time, or (given the quantity of disputes) within any further period of time that might reasonably have been allocated.

[26]For each of the Lead Claimants, there were disputed paragraphs of her job description where the only evidence to support the Claimants’ proposed wording was the general words of incorporation. Respondents’ leading and 3 This is illustrative – the specific situation did not arise. 6 of 548 junior counsel did not, in the main, cross-examine the Lead Claimants on the contents of those paragraphs.

[27]In relation to things the Lead Claimants dealt with in terms in their witness statements, we have on the whole adopted the normal approach of accepting the evidence where it was not challenged (and where there was nothing to the contrary in other substantially unchallenged evidence).4 However, we have been more cautious about, and given less weight to, unchallenged evidence of the Lead Claimants that consisted just of the general words of incorporation; although we have still on the whole accepted it unless there was a good reason to do otherwise.

[28]We followed this more cautious approach not just because it was, as mentioned above, impracticable for everything to be cross-examined on. In addition, where we have needed to look closely at these parts of the evidence, it has often proved to be the case that what the Claimants are suggesting:28.1 is contradicted or undermined by other evidence, e.g. JM JD 3.2.385;

28.2 is just not plausible, e.g. JM JD 2.7.9;

28.3 consists of a proposed part of one Lead Claimant’s job description that purports to record personal experience (rather than, e.g., just describing a manual task which both Lead Claimants did, where similar wording would be positively desirable), but seems to be identical or almost identical to part of another Lead Claimant’s job description, suggesting that it comes from what one Lead Claimant has said and has simply been copied across, e.g. KE JD 2.17.10 versus JA JD 2.8.11. Consistency & semantics

[29]At the start of these Reasons, we reminded ourselves that a stage 2 hearing is for the Tribunal to determine facts. Many of the disputes between the parties in the attached tables are less about facts than about wording / semantics.

[30]Possibly, we could have refused to adjudicate on purely semantic disputes. However:30.1 neither side suggested we adopt this approach across the board, although the Claimants in particular attacked some of Sainsbury’s objections to proposed wording on the basis that they were just semantics6; See Phipson on Evidence 20th Ed., Chapter 12, Section 1

(i)

(ii) (paragraph 12-12). 5 Meaning paragraph 3.2.38 of Joanne Mortin’s job description. 6 See also: paragraph 53.3 of the Respondents’ Skeleton Argument, concerning “paragraphs [of the JDs] that do not appear, on analysis, to contain any factual dispute at all … that … do not fall to be determined by the Tribunal at stage 2”; Sainsbury’s initial submission – see below – that we should in effect ignore part 3 of all Lead Claimants’ job descriptions. 7 of 548

30.2 had we adopted this approach, the proceedings would probably have ground to a halt, given the parties’ inability to agree about so much. To put it another way: if we didn’t make a decision, how were these disputes about wording going to be resolved in practice?;

30.3 disputes about wording are usually to some extent disputes about facts, and using different wording to describe a particular thing almost always gives rise to some change in meaning.

[31]Accordingly, where we have been presented with a dispute we have made a decision about it, even where the dispute is wholly semantic and/or is one that seems to us insignificant and very unlikely to make a difference to the job evaluation exercise that is to be undertaken as part of stage 3. In relation to semantic disputes, we have chosen our preferred wording largely, but not always, based on either or both sides’ suggestions. (Where we have agreed with one side or the other in principle, we have not uncritically adopted their wording). In relation to this, we agree with Sainsbury’s submission to the effect that the default should not be to prefer the Claimants’ proposed wording for the Lead Claimants’ job descriptions, any more than Sainsbury’s proposed wording should be the default for the Comparators’ job descriptions.

[32]We recognise the importance of consistency in our approach to particular job descriptions, to different job descriptions, and to the Lead Claimants’ versus the Comparators’ job descriptions. We have endeavoured to be consistent, but perfect consistency has not been possible. This has in part been because of inconsistency in the parties’ own approaches, particularly as between different Lead Claimants’ job descriptions. There are numerous examples of the parties proposing different wording for the same task in different job descriptions, different wording that is not adequately explained by the two Lead Claimants doing different jobs and working in different stores, e.g. compare what is said in KE’s and JM’s job descriptions about their work on the tills.

[33]Another reason for seeming inconsistencies in our decisions about the wording of job descriptions is that the parties have in places agreed wording and elsewhere one side has objected to the same wording and we have upheld their objections. Our general approach has been to leave agreed wording alone, in accordance with our obligation under the Rules to determine “facts on which the parties cannot agree”. We have on a handful of occasions altered wording the parties have agreed, but only where:33.1 part of the paragraph in which that wording appears is in dispute; and

33.2 the change is purely semantic and does not change any relevant facts or is to correct an obvious mistake; and/or

33.3 what we have changed struck us as particularly problematic.

[34]Inconsistencies we are aware of include:34.1 our approach where there is proposed wording in a job description involving the job holder estimating that something happened with a 8 of 548 particular frequency. This is by itself not useful information, because the estimate could be 100 percent accurate or wildly inaccurate, and our inclination has therefore been to remove such wording. Nevertheless, the parties have in places included these kinds of estimates in agreed parts of job descriptions, e.g. ML JD 98;

34.2 the parties have agreed wording such as “The Job Holder remembers” or “The Job Holder commented” which, for similar reasons (i.e. how accurate is the job holders recollection / comment?), we think is unhelpful, e.g. ML JD 1340 & IB JD 521;

34.3 in principle, we don’t think that a particular job holder’s subjective feelings belong in the job description, e.g. one individual feeling cold or finding a task difficult (or easy) or tiring or stressful is not an objectively verifiable fact about the environment in which they were working or the task they were undertaking. However, there are places where wording of that kind has been agreed (e.g. ML JD 1337) or where we have in our decision about wording reflected unchallenged evidence about how one of the Lead Claimants or Comparators felt, leaving it to the experts to take a view as to how relevant those subjective feelings are to the equal value question (e.g. AS JD 3.6.35);

34.4 much the same goes for findings we have been asked to make to the effect that a Lead Claimant did a task in a very particular way, e.g. JM JD 3.6.5, “Prior to verbal communication, the JH observes individual body language and utilises listening skills to analyse whether to offer customer assistance. ... she adapts conversational techniques depending on the customer. The JH gauges a customer’s receptiveness to small talk or exchanging pleasantries and adapts accordingly …”. Where Sainsbury’s has objected, we have in general upheld those objections. We have done so on broadly two bases. First, the evidence is insufficient to satisfy us on the balance of probabilities that in practice the Lead Claimant did this throughout the relevant period whenever she did the task in question – the most we can realistically say is that she endeavoured to do so. Secondly, in many instances, the finding we are being asked to make is one to the effect that the Lead Claimant did her job well (e.g. JA JD 3.2.6; the same could be said for JM JD 3.6.5 just quoted – some General Assistants will be better than others at deciding when a customer would appreciate an offer of assistance or a conversation). The value of a job cannot depend on how well it was performed; what we are making findings about is what the Lead Claimants’ and Comparators’ jobs entailed and not how good they were at them. If it were otherwise then two individuals doing the same job in the same store at the same time might have the value of their work assessed differently, depending on, e.g., how good they are at interacting with customers). There is a third, related point, which is that a job holder doing a particular task in a particular way does not automatically make that way of doing it part of their jobs for the purposes of a job evaluation exercise – see paragraph 51 below. However, there are numerous examples of agreed wording in job descriptions that fall foul of these kinds of objections, e.g. LD JD 9 of 548 3.11.2 includes agreed wording suggesting LD ensured “all tasks [were] completed to standard”.

[35]A side issue is that there are parts of the job descriptions where one side says the wording has been agreed but where it is not entirely clear that the other side is of the same view. Although we are definitely not encouraging reconsideration applications, one situation where reconsideration would be the best option is where we have in our column of the tables written that something is agreed when it isn’t. In such a situation – and in any other situation where we have made an obvious mistake – we will not apply the 14 day time limit for making reconsideration applications strictly.

[36]No doubt we are guilty of other inconsistencies of approach. Although we have endeavoured to keep these to a minimum, they are in practice unavoidable given the number of disputes we have been asked to resolve and the length of the documents in which those disputes are set out. We are, though, confident that, whatever inconsistencies there may be as between, in particular, the job descriptions of different Lead Claimants, there is no inconsistency on point of principle as between, on the one hand, the job descriptions of the Lead Claimants and, on the other, those of the Comparators. The purpose of job descriptions

[37]There is a further important issue related to what was discussed in the previous section of these Reasons, namely the fact that the purpose of the job descriptions is to form the factual backbone of a decision on the equal value question which will in practice be determinative of that question in relation to all Claimants doing the same jobs as the Lead Claimants.

[38]Many of the matters in dispute in the job descriptions seem to us most unlikely to make a difference to the value of the jobs. And if they do make a significant difference, then that potentially bodes ill for the rest of the proceedings, because it may well mean that a Lead Claimant will not be representative of most other Claimants doing the same job as them.

[39]To illustrate what we mean: in relation to most of the Lead Claimants there is a dispute about what proportion of their time they spent doing certain tasks and/or how often they did them. For example, in relation to LD (Sales Assistant Lead Claimant, who worked in clothing), there is a dispute about how often she helped out in General Merchandise: paragraph 1.3.2 of her job description. If whether it was once a month or a few times a year is important, given that in all probability every other Sales Assistant Claimant will not have worked outside her core area of responsibility with exactly the same frequency that LD did, and given that there would in all probability be similar disputes about frequency in relation to every other Sales Assistant Claimant, detailed findings on this issue for each of those Claimants would need to be made. Much the same would apply to numerous other parts of LD’s job description and to those of the other Lead Claimants. For example: in JA JD 1.2.5 there is a dispute about whether and to what extent JA (LCSA Lead Claimant) took all of the breaks to which she was entitled and different LCSAs are bound to be slightly different in this respect; job descriptions refer to personal experience of incidents of violence 10 of 548 (e.g. JA JD 3.9.51; JM JD 2.13.9) and if that is important – i.e. is at all likely to affect job evaluations – then, potentially, findings about that are going to need to be made for all Claimants and/or for all Claimants’ stores.

[40]If all the many small differences the parties have asked us to resolve matter, in the sense that they will affect the outcome of stage 3:40.1 the Lead Claimants’ job descriptions and the experts’ reports produced on the back of them will apply only to the Lead Claimants themselves and they will not be Lead Claimants in any meaningful sense;

40.2 every Claimant will potentially require their own stage 2 hearing, expert’s report, and stage 3 hearing.

[41]We are firmly of the view that this is not the true position. If it were the true position, it would be impossible to find anyone suitable to be a Lead Claimant because no Claimant would ever be sufficiently representative of the others in her job role; and in practice equal pay litigation of this kind would never conclude, because there would need to be thousands of stage 2 hearings, experts’ reports, and stage 3 hearings.

[42]It must follow that the parties have been arguing about, and asking us to adjudicate upon, things that don’t matter. That is a very unsatisfactory state of affairs and we trust that it won’t happen again in these proceedings. In particular, we would like to make clear that the Tribunal will be vigilant to prevent either side creating arguments of this kind for tactical reasons. Demands

[43]Very shortly before this hearing started, it was suggested on Sainsbury’s behalf that all of the Lead Claimants’ job descriptions should be substantially redrafted, with the contents of their “Demands” sections being for the most part removed completely and in some small part put into the other two sections of the job descriptions. This was a surprising and impractical suggestion to be making at the eleventh hour and thankfully was in the end not pursued. Nevertheless, given that the issue was raised and discussed at length, we think we ought to say something about it.

[44]The independent experts indicated that they would like the job descriptions to include a section on “Demands”. Presumably this was because they thought it would help them when they came to prepare their reports. The draft job descriptions for both Lead Claimants and Comparators were prepared on that basis. A great deal of work was evidently carried out drafting the Demands sections of the job descriptions and debating and trying to agree them. Taking the draft job description of LD (Sales Assistant Lead Claimant) as an example, it has three sections: Section 1 – Introduction and Overview; Section 2 – Tasks; Section 3 – Demands. The Demands section took up 50 out of 94 pages of her draft job description. It has the following main headings: Knowledge and Understanding; Responsibility for Company Resources; Responsibility for Customer Services; Physical Skill; Cognitive Skill; Communication Skill; Mental Effort; Physical Effort; Environmental Demands. Those headings are 11 of 548 understood to reflect the independent experts’ provisional proposed ‘factor plan’.

[45]As it happens, we have come to agree with Sainsbury’s that, with the benefit of hindsight, it would – from the Tribunal’s point of view at least – perhaps have been better had the Demands sections of the job descriptions not been there. The reason we say this is that there being Demands sections seems to have encouraged the Claimants in particular to an extent to draft those sections with a view not to neutrally describing the tasks job holders did but to suggesting that (in the Claimants’ case) the tasks the Lead Claimants did were demanding. It has also led to the Lead Claimants’ job descriptions being unnecessarily long and repetitive, with essentially the same information often being contained once in section 2 and multiple times in section 3, with (using the Claimants’ proposed wording) a slightly different emphasis each time. However, when Sainsbury’s got around to making its suggestion that the Demands sections should be done away with, what might once have been a reasonable and legitimate concern to raise had become unhelpful and unconstructive.

[46]We have therefore – ultimately without objection from Sainsbury’s – retained the Demands sections in the job descriptions and resolved all of the disputes in those sections identified in the attached tables.

[47]In doing so, we have recognised that the extent to which something is demanding is not a fact that we should be finding as part of stage 2, but is instead what is going to be looked at by the experts and during stage 3. For example, were we to have endorsed a Lead Claimant’s job description that said, “this is mentally demanding work” and a Comparator’s job description that said, “this is not mentally demanding work”, we would obviously be trespassing on the experts’ domain and doing something that properly belongs to stage 3 of the equal value process.

[48]We also recognise:48.1 that what knowledge and understanding and physical skills are required to do a job, what mental demands the job makes on the job holder, etc. are potentially relevant issues of fact that might be in dispute and that, if and to the extent they are, we are duty-bound to resolve them (and we have done so);

48.2 that although the Tribunal is ultimately going to have to decide the equal value question, Employment Judges and non-legal Employment Tribunal members do not ourselves have particular expertise on that question, any more than a judge deciding whether medical treatment fell below an acceptable standard in a clinical negligence case (however experienced they may be in dealing with such cases) has particular expertise in standards of medical treatment. That is why we have the independent experts. They asked for the Demands sections and will presumably find them useful. They also know better than we do what facts are and are not likely to be relevant to the equal value question; 12 of 548

48.3 that different experts may well take a different view as to what is useful and relevant, as well as to issues such as the importance of particular factors or ‘sub-factors’ in relation to particular roles. If the independent experts are, or may be, of the view that something is relevant then we have needed to deal with it. If a party’s expert takes the view that it isn’t relevant, then no doubt they will say so in their report and the Tribunal will, if necessary, have to decide who is right at stage 3.

[49]Lastly in relation to “demands”, there are disputes arising on the Lead Claimants’ job descriptions that are in reality about how mentally or physically or otherwise demanding a particular task is. As above, that is in principle a matter for the experts and stage 3. Almost invariably, that is how we have dealt with it. However, in one or two instances (e.g. JA JD 3.9.12):49.1 the suggestion being made by the Claimants that something was in some particular respect sufficiently demanding that it might conceivably affect the value of the job is so implausible that there are no reasonable prospects of the Tribunal accepting it at stage 3;

49.2 we have reflected this as part of our decision. Legal points

[50]In addition to those we have already directly or indirectly mentioned, a number of legal points are raised in the skeleton arguments. We haven’t detected any real disagreement between the parties as to the law. In our column in the attached tables we are making findings of fact rather than making a decision by applying the law to facts we have already found. However, there is one legal issue we flag up that we have had to think about.

[51]We note, and adopt, what is said from paragraph 36 of the Respondents’ Skeleton Argument and from paragraph 20 of the Skeleton on behalf of Leigh Day Claimants, referring in particular to: Shields v E Coomes (Holdings) Ltd

[1978] ICR 1159

, CA; Potter v North Cumbria Acute Hospitals NHS Trust

[2008] ICR 910

; Beal v Avery Homes Ltd

[2019] EWHC 1415 (QB)

, especially at paragraph 32 of this decision of Lavender J. What we have had to decide is what the Lead Claimants and Comparators did as part of their jobs, which is not necessarily the same as, e.g., what their contracts said or what they were told in training. Even what they actually did is not always determinative. In general, although still not in every case, something will be part of their jobs in this sense if they were in practice required or expected to do it, even if only infrequently. Miscellaneous points

[52]In general in relation to the Lead Claimants’ job descriptions, there is an overreliance by the Claimants on training materials. These tend to be abstract and/or aspirational and are often not reflective of what the Lead Claimants did in practice, nor of what was in reality expected of them throughout the relevant 13 of 548

[53]The draft job descriptions provided to us are generally written in the present tense. We have endeavoured to put the parts of them we have looked at into the past tense. This is to reflect the fact that we are dealing with the jobs as they were in the past, during the relevant period. It seems to us odd to write that a job holder ‘does’ something when, for example, they haven’t done it since a date in the 2010s. We note that the job descriptions, particularly those of the Comparators, are anyway to an extent internally inconsistent in the tenses used, sometimes within the same paragraph.

[54]We appreciate that turning the whole of all of the job descriptions into the past tense would be a substantial undertaking and we are not expecting the parties to do that, although of course they can if they want to. We are sure it won’t create insurmountable difficulties for the experts if they don’t do that.

[55]Finally, in the wording we have chosen for disputed paragraphs of some of the job descriptions, we have in places cross-referred to other paragraphs of the same job description. When doing so, we have used the paragraph numbers shown in the attached tables. It is, though, going to be necessary for the parties to check when incorporating our decision into the final versions of the job descriptions that the paragraph numbers are right – some of them will probably have been changed by decisions we have made to delete paragraphs.

[61](10/28-29) in which Mr Meakes explains that individuals not working at the right seem to be from any evidence referred to in their pace on Inbound would be spoken to (and see also Meakes paras. 63-67 (10/29-30); submissions, nor from KO’s statement. McDougall para. 18 (10/39); Butcher paras. 9-13 (10/78-80); and Ozog paras. 11-13 (10/99-100). In oral evidence, both management and the comparators told the Tribunal that managers would know how long a job should take ({16/69} and {17/12}) and that an individual working slowly or not pulling their weight would be spoken to ({16/69} and {17/28}). Cs also propose adding a final sentence: The Job Holder stated that he could not work faster on Loading for health and safety reasons. Clearly the JH could not work faster than was safely possible (and the same is true of essentially any task in any job). But the proposed wording implies that he was always already working as fast as was safely possible and that a manager would never speak to someone. To the contrary, see Meakes para. 67 10/30 and para. 72 10/31; Ozog para. 13 10/100; and Butcher para. 25 10/83. Clearly there might be scope for working more efficiently without hindering safety. In recognition of the fact that some loads take longer to deal with than others, e.g. because the number of pallets per load varies and because some load require adjustments to expiry dates and/or re-loading of pallets onto the lorry, there was no formal target for the Job Holder when dealing with unloading/receipts. However, the Job Holder was aware that Team Managers periodically walked the depot floor, watching the Job Holder and his colleagues' pace of work. The Job Holder was aware that, if the Team Manager considered that the Job Holder was not working at the required pace, this could result in a conversation where the Team Manager would question the reasons for the Job Holder's pace, although the Job Holder was never expected to work faster than was safely possible. 164.1 166.1 where the Job Holder was made aware told by a driver that their duty limit (daily Cs dispute that pressure on the JH arose from his being made aware that a lorry driver’s where the Job Holder was told by a driver that their duty limit limit for driving time and associated duties) was about to expire (which happened duty limit was about to expire. (daily limit for driving time and associated duties) was about about once every four months) – the Job Holder understood that what the driver told them would not necessarily be true; to expire (which happened about once every four months) – In evidence, the JH said that, whilst he did not recognise the term “duty limit”, he knew about limits on drivers’ driving time, and told the Tribunal that drivers would sometimes the Job Holder understood that what the driver told them The frequency and the fact that the JH was not sure the driver was being truthful is tell him when their time was about to run out (Ozog para. 20 10/102). Mr McDougall would not necessarily be true; taken from para 20 of Mr Ozog’s statement [10/102]. See also Mr Meakes’ evidence also confirms that warehouse colleagues would be made aware of time constraints on at T15/111/2 – 22. Reasons: Cs’ wording accords with KO’s own evidence in para drivers (McDougall para. 97 10/54). The evidence clearly supports Rs’ position. Even if 20 of his statement. the drivers sometimes exaggerated the position, that does not mean that what they told colleagues did not put pressure on them. where the Job Holder was made aware that their duty limit (daily limit for driving time and associated duties) was about to expire; 476 of 548 Number number Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. KRZYSZTOF OZOG 188.4 190.4 In respect of stock which he receives, the Job Holder was responsible for ensuring The dispute again concerns the extent of the manager’s involvement in a decision to In respect of stock which he received, the Job Holder was that damaged stock or stock with short expiry date was not accepted into the depot. return pallets of damaged goods. See Rs’ comments on para. 82.3. responsible for ensuring that damaged stock or stock with a In respect of damaged stock, if there were only a few damaged cases, it is the Job Holder’s decision as to whether the pallet should be accepted into the warehouse. short expiry date was not accepted into the depot. In respect Anything more, the job holder will ask the team leader what to do and once the of damaged stock, if only some cases were damaged, it was In respect of stock which he receives, the Job Holder was responsible for ensuring that team leader has understood the issue the team leader makes the decision. If he did the Job Holder's decision as to whether they should be damaged stock or stock with a short expiry date was not accepted into the depot. In accept such stock, the stock may not have been capable of being sold which could have resulted in a ﬁnancial cost to Sainsbury’s. accepted into the warehouse. If he thought one or more respect of damaged stock, he used his judgment and discretion when deciding what whole pallets should be rejected, he would discuss this with stock should be accepted and whether to send back a whole pallet or individual cases See the submissions for para 82.3 above. from a pallet. If he intended to send back whole pallets, he would usually ask a team his team leader / manager (if they were around) and they leader, and the team leader and the Job Holder would then discuss the situation and would jointly make the decision, although the team leader / make the decision together (although the Team Manager would take the ultimate manager could override the Job Holder’s views. If he did decision if they did not agree following discussion). If he did accept such stock, the stock accept such stock, the stock might not have been capable of might not have been capable of being sold which could have resulted in a financial cost being sold, which could have resulted in a financial cost to to Sainsbury’s. Reasons: See 82.3 / 84.3 557.1 559.1 knowledge of the types of products that were heavier and created a ﬂat base, and The dispute concerns what the JH needs to know about the products in order to stack knowledge of the types of products that were heavier and which products did not, so he could pick and stack accordingly. This required an them suitably when working on Batch Pick. created a stable base, and which products did not, so he awareness of the approximate weight of products and of whether the packaging Mr Ozog explained the position in his evidence (Ozog para. 27 10/104). He needed to was suitable or too "ﬂimsy" to form a base without collapsing. could pick and stack accordingly. This required product type understand the weights and packaging of different types of product to stack effectively, recognition and awareness of approximate product weight See para 27 of Mr Ozog’s statement [10/104]. as explained therein. See, to similar effect, Mr McDougall’s evidence in relation to and of whether the packaging was suitable or too "flimsy" to stacking in EPS (McDougall paras. 80-81 10/51-52). In cross-examination, Mr Ozog was form a base without collapsing. asked about batch pick and explained that it was also necessary to know the right way Reasons: Appears to be agreed. up to stack the product {17/15}. knowledge of the types of products that were heavier and created a stable base, and which products did not, so he could pick and stack accordingly. This required product type recognition and awareness of approximate product weight and of whether the packaging was suitable or too "flimsy" to form a base without collapsing. 618 620 The pick rate target in DPS was around 298– 337 cases per hour during the Relevant The paragraph concerns the target pick rates in DPS. The pick rate target in DPS was around 298 – 337 cases per Period. The pick rate target varied slightly, up or down, from year to year. In addition, the pick rate target varied from aisle to aisle depending on the goods hour during the Relevant Period. The pick rate target varied picked in the aisle in question (to take into account whether they were light goods slightly, up or down, from year to year. In addition, the pick The pick rate target in DPS was around 298 – 337 cases per hour during the Relevant or heavy goods). A piece of paper was pinned up at the end of each aisle to notify rate target varied from aisle to aisle depending on the goods Period. The pick rate target varied slightly, up or down, from year to year. In addition, the the warehouse colleagues of the target for that aisle. As the Job Holder is not picked in the aisle in question (to take into account whether pick rate target varied from aisle to aisle depending on the goods picked in the aisle in normally based in DPS, he is given 15% leeway in respect of the usual pick rate target of 298 – 337 cases per hour. There are no natural breaks when the Job Holder they were light goods or heavy goods). A piece of paper was question (to take into account whether they were light goods or heavy goods). A piece of is waiting for products to come through (“asset waiting time”) as well as time spent pinned up at the end of each aisle to notify the warehouse paper was pinned up at the end of each aisle to notify the warehouse colleagues of the transferring between workstations, which can total about 2 hours including the JH’s target for that aisle. As the Job Holder is not normally based in DPS, he is given 15% colleagues of the target for that aisle. As the Job Holder was break time across a full shift. If the Job Holder does not meet the target, a Team leeway in respect of the usual pick rate target of 298 – 337 cases per hour. There are no not normally based in DPS, he was given 15% leeway in Manager speaks to him. Warehouse colleagues who continue to underperform are natural breaks. If the Job Holder does not meet the target, a Team Manager speaks to performance managed as detailed in paragraphs 9 – 11-12 above. As set out at respect of the usual pick rate target of 298 - 337 cases per him. Warehouse colleagues who continue to underperform are performance-managed paragraph 12, very few, if any, of the JH’s warehouse colleagues were dismissed for hour. There were no natural breaks. However, there were as detailed in paragraphs 9 - 11 above. poor performance (as opposed to conduct issues) in the Relevant Period and if the times when the Job Holder would not be picking, for example Job Holder was covering in DPS for a short period (e.g. 30 minutes) that reduces the The wording is factually accurate in accordance with the evidence before the Tribunal. time spent walking between different workstations and time 477 of 548 Number number Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. KRZYSZTOF OZOG As to the pick rate for DPS and the variation to it for those transferred into the area, scruƟny of his pick rate such that a manager may speak to him if he was working spent waiting for products to come through. If the Job Holder see Lock 14-27 10/6-9 and Meakes paras. 52-54 10/27-28. The position in respect of too slowly but there would be no more formal performance management. did not meet the target, a Team Manager spoke to him. Warehouse colleagues who continued to underperform were As to the communication of target pick rates and discussions about falling short of In respect of natural breaks see paras 17.5 and 17.6 of Mr Meakes’ statement [10/16] performance-managed as detailed in paragraphs [11 – 12] them with managers, in addition to Rs’ comments on para. 10 above (and the and his evidence at T15/56 – T15/58/1. The records are at [4/303]. Two hours is above. references to the oral evidence therein), see for example: Butcher paras. 30-31 (10/84- typical. Reasons: Cs’ additional wording suggests that asset waiting 85), paras. 40-41 (10/88-89), para. 46 (10/89); Meakes para. 4 (10/14), para. 14 time and walking time and transfer time were natural times (10/14), paras. 29-30 (10/20), para. 36 (10/23), para. 45 (10/25); McDougall paras. 18- See the submissions for KO10 / para 12 above in respect of short periods of work for breaks, which, manifestly, they weren’t. It is, though, 21 (10/39-40), paras. 23-24 (10/40); Crowdy paras. 11-13 (10/114-115), para. 37 and the low chance of dismissal for poor performance. (10/121); and Ozog para. 31 (10/106), para. 44 (10/109). In relation to DPS in legitimate to highlight the fact that the work was not particular, see Meakes paras. 15 to 31 10/15-20, as well as oral evidence consistent constant picking and we have done that. What we cannot do with Rs’ position at {16/42-43}, {16/96}, {17/7-8} and {17/30}. on the evidence – which consists of one day’s figures from (seemingly) outside the relevant period for dozens of And the JH himself gave evidence supportive of the wording proposed by Rs (Ozog paras. 29-32 10/105-106 and the references to the documents therein) (see also different people – is make a finding as to what was normal or Crowdy paras. 8-13 10/114-115 and Butcher paras. 29-33 10/84-85). Orally, the JH told typical for KO throughout the relevant period in terms of time the Tribunal that he could be challenged and told to do better next time even after spent not picking, which is what Cs are effectively asking us working on DPS for relatively short periods, though he might also have a good to do. Cs have not referred us to any other evidence on explanation. {17/7-8}. which we could base such a finding. Cs could potentially have In so far as there is a dispute as to whether the paper printouts were typically put up, cross-examined KO using [bundle 4 / p.310 et seq] about the evidence is again clear: for example, Butcher para. 31 (10/85), para. 40 (10/88), what was usual for him, but did not do so. In any event, para. 46 (10/89); Lock para. 24 (10/8); Meakes paras. 22-23 (10/18-19), para. 41 including KO’s break times alongside e.g. asset waiting time (10/23), para. 46 (10/26); and McDougall para. 14 (10/39). This was not challenged (as Cs do in their wording) would be potentially misleading. during oral evidence. As to the final sentence, there is already a reference to NB – Cs suggest adding that the JH has not worked a full shift since 2020, but it is paragraph 10/12 of the JD and there is no need to repeat the unclear why they do so, given the relevant period ended in March 2020. information contained in it. See also the reasons for the decision on that paragraph. Rs’ wording set out above should be preferred. 658 660 Where some items in a case are damaged and there is no leakage, the Job Holder The dispute concerns whether or not the JH uses numeracy skills in order to estimate Where some items in a case were damaged and there was no will still pick the case into the tote provided that approximately 75% of the stock in whether 75% of the stock in a case is not damaged. leakage, the Job Holder would still pick the case into the tote the pack is undamaged. The Job Holder will estimate or use basic numeracy skills to determine whether 75% of the items are undamaged. provided that approximately 75% of the stock in the pack was The position is explained by Mr McDougall at paras. 40-42. Mr Crowdy gives an explanation of it in practice at paras. 23-26 (10/117-118) and see also his oral evidence undamaged. The Job Holder estimated whether at {16/147}. 75% was a guideline (see Mr McDougall at para 41 of his statement [10/44]) and so approximately 75% of the items were undamaged and used the calculation was basic and did not need to be exact. numeracy skills to do so. Rs’ proposed wording reflects that whether the JH counts each item or estimates (as may vary from case to case), that uses a numeracy skill (in that it is difficult to see how Reasons: We have kept “numeracy skills” because it is agreed. else an estimate is made). Assessing whether the skills involved were basic or otherwise Rs’ final proposed wording: is an evaluative exercise. Where some items in a case are damaged and there is no leakage, the Job Holder will still pick the case into the tote provided that approximately 75% of the stock in the pack is undamaged. The Job Holder estimates whether approximately 75% of the items are undamaged and uses numeracy skills to do so. 667 669 How to use the informaƟon displayed as a grid layout on the PC screen at the Cs’ previously proposed the following wording: How to use the information displayed as a grid layout on the workstaƟon to plan the most eﬃcient his preferred picking route in terms of how to achieve maximum eﬃciency, in order to achieve his pick rate targets and to PC screen at the workstation to plan an efficient picking prevent injury/faƟgue; 478 of 548 Number number Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. KRZYSZTOF OZOG How to use the informaƟon in displayed as a grid layout on the PC screen at the route, in order to achieve his pick rate targets and to prevent This text is consistent with the explanation given by Mr Ozog in evidence that there workstaƟon to plan the most eﬃcient picking route in order to achieve his pick rate injury/fatigue; were normally 5-8 locations and everyone had their “own way of doing things”: see targets and to prevent injury/faƟgue; T16/17/9 – T15/18/24. Reasons: KO did not need to know how to plan the most When Rs noƟﬁed Cs that their wording was agreed, Cs stated that their posiƟon had objectively efficient picking route – something that would be changed, and their previously suggested wording was no longer available for acceptance. almost impossible to know, but he did need to know how to Rs remain willing to agree Cs’ originally proposed wording, and understand the dispute plan an efficient route. Cs’ wording suggests he might relates to the words “the most eﬃcient…”. idiosyncratically pick a route at random. The JH’s evidence to the Tribunal was that he sought to pick products eﬃciently and he explained how he did so (Ozog para. 36 10/107). In oral evidence Mr Ozog explained how diﬀerent colleagues developed their own strategy for deciding picking routes in DPS {17/18-19} (see also Mr McDougall’s evidence was that there was no set order, {16/100- 101} and Mr Crowdy’s evidence bout planning routes (Crowdy paras. 19-20 10/116 and {16/153})). It is unclear on what basis this evidence is said to justify Cs’ change in position or on what basis they invite the Tribunal to reject Mr Ozog’s evidence. Rs’ ﬁnal proposed wording (mirroring the wording previously suggested by Cs): "How to use the informaƟon in displayed as a grid layout on the PC screen at the workstaƟon to plan the most eﬃcient picking route, in order to achieve his pick rate targets and to prevent injury/faƟgue;" 679 681 Identifying and judging whether product cases could be sent to store, despite Cs dispute the wording in yellow: Deciding whether product cases could be sent to store, missing or damaged products, including using the 75% rule in paragraph (657); despite missing or damaged products, including using the Identifying and judging whether product cases could be sent to store, despite missing or damaged products, including using the 75% rule in paragraph 657. 75% rule in paragraph ([657]); Linguistic challenge – maintained only if challenges to similar language in claimant JDs are maintained. Reasons: There should be consistency with Lead Claimants’ duplication between judge and identify in this context. Whether to send damaged job descriptions, e.g. GA Nights / Ruth Randall 1.3.9, 2.5.20 & cases to store, including applying the 75% rule, involved an element of judgment (see 3.15.8. Cf. Our reasons for LB399 in Mr Butcher’s JD. Rs’ comments on para. 658 above). In those circumstances, Rs’ wording is to be preferred as follows: products, including using the 75% rule in paragraph 657. 703.2 705.2 The Job Holder was aware that there was an expectation that he would pick a This paragraph concerns awareness of pick rates in DPS. The Job Holder was aware there was an expectation that he certain number of cases per hour. The number varied slightly each year, but the Job Holder's gross pick rate target (i.e. target for actual cases picked per hour) was in would pick a certain number of cases per hour. The number See Rs’ comments on para. 618, which support Rs’ proposed wording in this paragraph. the region of 336 298 – 337 cases per hour each year in the Relevant Period. As the varied slightly each year, but the gross pick rate target (i.e. Targets were not limited to entire shifts, as shown by the evidence referred to therein. Job Holder was not normally based in DPS, he was given 15% leeway of the usual target for actual cases picked per hour) was in the region of In so far as Cs take issue with the target being a challenging one to meet, and which target. As set out at paragraph 12 above, if the Job Holder was covering in DPS for 298 – 337 cases per hour each year in the Relevant Period. As required the JH to work at a consistent pace, see Lock paras. 28-30 10/9 -10; Meakes a short period (e.g. 30 minutes) that reduced the scruƟny of his pick rate. This was a challenging target and required the Job Holder to pick at a consistently fast pace. the Job Holder was not normally based in DPS, he was given para. 23 10/19; Ozog para. 32 10/106; Butcher para. 30 10/84-85, para. 33 10/85; and 15% leeway of the usual target. This required the Job Holder Crowdy paras. 10-12 10/114. Mr Crowdy described having to “power walk” to meet his There should be no references to a “challenging rate”. This is entirely subjective. target and “almost running” to get off the PIP {16/149} and {16/155}. The JH and Mr to pick at a consistent pace. Even if an individual Job Holder found it challenging to work at this speed such a Butcher both gave examples of not meeting the even reduced targets, and the JH said subjective comment is not relevant. A job is not more valuable because an individual Reasons: Adding “If the Job Holder was covering in DPS for a he was told to do better next time {17/7-8} and {17/30}. As Mr Lock explained, to be employee finds it difficult, nor less valuable because an individual (Mr Crowdy’s super short period (e.g. 30 minutes) he would not be expected to met it was necessary to work at a consistent pace and not waste time {16/26-27}. See picker) finds it easy. In fact, Mr Ozog’s evidence was that if there were no problems pick at the same rate as a full time DPS colleague.”, as we did also Mr McDougall’s evidence about the number of people he had on PIPs at any time or faults he could hit the target: see T16/6/18 – T16/7/5. in para 12, is unnecessary here. We agree with Cs about 479 of 548 Number number Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. KRZYSZTOF OZOG {16/113-114}. The description of the targets as challenging is clearly supported by the “challenging”. (As an aside, we note that Cs used that word in evidence. a comparable context in some of the Lead Claimants’ JDs, e.g. NB – Cs suggest adding that the JH has not worked a full shift since 2020, but it is Amanda Solts 3.6.34). Whether or not KO, subjectively, found unclear why they do so, given the relevant period ended in March 2020. it difficult to pick at a particular rate does not translate into a finding of objective fact we could make that might conceivably be relevant to the equal value question. To put it The Job Holder was aware that there was an expectation that he would pick a certain in general terms, how good or bad someone is at their job number of cases per hour. The number varied slightly each year, but the gross pick rate cannot affect its value; what matters is what the job entails. target (i.e. target for actual cases picked per hour) was in the region of 298 – 337 cases per hour each year in the Relevant Period. As the Job Holder was not normally based in DPS, he was given 15% leeway of the usual target. This was a challenging target and required the Job Holder to pick at a consistent pace. 743 745 The pick rate target in EPS was around 163 – 188 cases per hour during the The only dispute on this paragraph is the wording highlighted in yellow, which Cs The pick rate target in EPS was around 163 – 188 cases per Relevant Period. The pick rate target varied slightly, up or down, from year to proposed to add: hour during the Relevant Period. The pick rate target varied year. In addiƟon, the pick rate target varied from aisle to aisle depending on the goods picked in the aisle in quesƟon (to take into account whether they were light slightly, up or down, from year to year. In addition, the pick The pick rate target in EPS was around 163 – 188 cases per hour during the Relevant goods or heavy goods). A piece of paper was pinned up at the end of each aisle to Period. The pick rate target varied slightly, up or down, from year to year. In addition, rate target varied from aisle to aisle depending on the goods noƟfy the warehouse colleagues of the target for that aisle. As the Job Holder was the pick rate target varied from aisle to aisle depending on the goods picked in the aisle picked in the aisle in question (to take into account whether not normally based in EPS, he was given 15% leeway in respect of the usual pick in question (to take into account whether they were light goods or heavy goods). A they were light goods or heavy goods). A piece of paper was target. The Job Holder someƟmes found it diﬃcult to reach the target if, for piece of paper was pinned up at the end of each aisle to notify the warehouse example, he was picking heavier items. The Job Holder was someƟmes spoken to pinned up at the end of each aisle to notify the warehouse colleagues of the target for that aisle. As the Job Holder was not normally based in EPS, by the manager if he didn’t hit the target but was never given any coaching and colleagues of the target for that aisle. As the Job Holder was he was given 15% leeway in respect of the usual pick target. The Job Holder found it was not subject to any formal performance management. not normally based in EPS, he was given 15% leeway in difficult to reach the target. No further acƟon would be taken as a result. respect of the usual pick target. The Job Holder found it It is unclear by what is meant by “would be”, which seems to imply such action would Mr Ozog did not always ﬁnd it diﬃcult to reach the target – whether or not he hit difficult to reach the target. The JH worked on EPS on an ad never be taken. the target depending on the nature of the pick: see the transcript of the interview hoc basis, and was spoken to, but not subjected to formal with Mr Ozog at [7/521] – see also Rs’ transcript at [7/459-460]. As to the pick rate for EPS and the variation to it for those transferred into the area, action, as a result of not meeting a target. see Lock 14-27 10/6-9 and Meakes paras. 52-54 10/27-28. The position in respect of Reasons: This is an example of Cs’ unfortunate tendency in closing submissions to raise a dispute about something they As to the communication of target pick rates and discussions about falling short of had, prior to the hearing, agreed, such that Rs did not know it them with managers, see Rs’ comments on paras. 10 and 618 above. In relation to EPS was in dispute and therefore did not make submissions about in particular, see Meakes paras. 32-41 10/20-23 (and Butcher paras. 39-42 10/87-88 it (and, possibly, prepared witness statements on the and Crowdy paras. 37-39 10/121-122 and Mr Butcher’s evidence at {17/31-32}). assumption that it was not in dispute). In relation to this, it is If Cs simply mean no action was taken against the JH, it can be included that no formal particularly unfortunate – and rather unfair on Rs – because action was taken, but this needs to reflect accurately and consistently the evidence at what Cs rely on is the interview transcript, which they must Ozog para. 37-38 10/107. Mr Ozog said he sometimes met the target and sometimes have had available to them when they agreed “The Job did not {17/10} and both parties' interview notes with Mr Ozog record that he was Holder found it difficult to reach the target” and proposed spoken to by managers but not subjected to coaching or formal action [7/484; 7/459- “No further action would be taken as a result”. In the 460]. circumstances, the evidence would have to be very clear Rs’ propose instead of the highlighted wording above: indeed before we would be persuaded to allow Cs to go back The JH worked on EPS on an ad hoc basis, and was spoken to, but not subjected to on their agreement and to introduce additional wording not formal action, as a result of not meeting a target. previously proposed. In fact, the gist of the transcript is that KO (speaking without an interpreter, in non-fluent English) sometimes hit the target in EPS. He did not say or suggest that he sometimes found it easy, or not-difficult, to hit it. 480 of 548 Number number Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. KRZYSZTOF OZOG We only allow anything at all about how easy KO found it to reach the target because it is agreed – cf. “challenging” in para 703.2/705.2. 859.1 869.1 The Job Holder was responsible for handling stock items correctly in keeping with At para. 68.2 (10/73), Mr Hart confirms, having liaised with the manufacturer, that the The Job Holder was responsible for handling stock items his training throughout the shift so as not to drop products which could have caused highest point of the cab in EPS is 14.5 metres from the ground. Rs’ propose amending correctly in keeping with his training throughout the shift so damage to them which in turn had a financial impact on Sainsbury's. If product the JD to ensure it is factually accurate in this regard. cases are not dealt with correctly, it may result in the packaging breaking open and as not to drop products which could have caused damage to individual products falling out. For example, the bottom of a box could fall out. If There is no other extant dispute in respect of this paragraph. them which in turn had a financial impact on Sainsbury's. If that happens in EPS, smaller sized products will fall through the gap between the product cases were not dealt with correctly, it might have Rs’ final proposed wording: racking and the EPM (20 - 25 cm gap), fall from height (up to 14.5 9 metres) and not be retrievable.” resulted in the packaging breaking open and individual products falling out. For example, the bottom of a box could training throughout the shift so as not to drop products which could have caused Items would not fall from the top of the top ﬂoor to the boƩom of the ground ﬂoor. fall out. If that happened in EPS, smaller sized products would damage to them which in turn had a financial impact on Sainsbury's. If product cases See Mr Crowdy’s evidence about falling products at T15/172/22 – T15/173/6. fall through the gap between the racking and the EPM (20 - are not dealt with correctly, it may result in the packaging breaking open and individual 25 cm gap), fall from height and not be retrievable. The products falling out. For example, the bottom of a box could fall out. If that happens in overall height of the racking, from ground level to the top of EPS, smaller sized products will fall through the gap between the racking and the EPM (20 - 25 cm gap), fall from height (up to approx 14.5 metres) and not be retrievable. the racking was 17.15 m. Just under 9 m from the top of the racking and just over 8 m from the ground floor was a Mezzanine floor made from corrugated steel mesh. Liquids from a broken container could fall all the way from top to bottom (i.e. 17 m approx) and items could fall from the top to the Mezzanine floor (approx. 9 m), break / bust and spill their contents from there onto the ground floor. Reasons: Both sides’ wording and submissions are inaccurate. 14.5m from ground level is the floor of the cab, not the “highest point of the cab”: para 68.2 of Mr Hart’s statement. Our wording accurately reflects the contents of that statement and [T15/106] and [T15/172-173]. 867 869 The Job Holder describes the work as lonely and as having a negative impact on his The dispute concerns the frequency of the JH’s work in EPS. The evidence before the The Job Holder described the work as lonely and as having a mental health due to the isolation and the enclosed space. The Job Holder worked Tribunal is at Ozog paras. 37-38 10/107. Whilst the JH recognised the uncertainty in his negative impact on his mental health due to the isolation and in EPS on an ad hoc basis when there was no work to do on inbound/receipts. The estimate, there is no better evidence before the Tribunal, or which supports Cs’ Job Holder did four hour shifts and very occasionally (every few months) an eight the enclosed space. The Job Holder worked in EPS on an ad proposed wording. hour shift. The job holder could be there once a week for a few weeks or not go at hoc basis when there was no work to do on all for a few months. Rs’ final proposed wording: inbound/receipts. The Job Holder did four hour shifts and very occasionally (every few months) an eight hour shift. The The Job Holder describes the work as lonely and as having a negative impact on his The wording in yellow clarifies the frequency and length of shifts in EPS on the basis job holder could be there once a week for a few weeks, and mental health due to the isolation and the enclosed space. The JH worked in EPS on an of paras 37 and 38 of Mr Ozog’s statement and his evidence at T16/20/21 – ad hoc basis. He might have worked there weekly for a few weeks, and then not at all then not at all for two months. T16/21/2 for two months. Reasons: It is unclear whether there is still a dispute here. Cs’ wording accurately reflects the evidence. The first sentence is another example of us allowing wording because it has been 481 of 548 Number number Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. KRZYSZTOF OZOG agreed which we would probably not have permitted had it been in dispute. Cf. 705.2 / 703.2. 911 913 When the pallet is received at the workstation, the Job Holder is responsible for Rs agree to delete references to the Pallet Return Form. It is unclear, however, why Cs When the pallet was received at the workstation, the Job checking that the products are acceptable in DPS. For example, the system may not have deleted the whole paragraph, including that the JH checks products are acceptable Holder was responsible for checking that the products were recognise the TUC, or the pallet may have been stored in the EPS area and have had in DPS when a pallet is received. items fall onto the pallet so that it is covered in damaged items. In the event of a acceptable in DPS. problem, the Job Holder is required to complete a Pallet Return Form (see Appendix KO8), indicating what the problem is and asks a Team Manager to authorise it Reasons: Neither side’s submissions refer to evidence other When the pallet is received at the workstation, the Job Holder is responsible for before it is sent away. than in relation to the Pallet Return Form. All we have been checking that the products are acceptable in DPS. For example, the system may not able to find in Mr Ozog’s evidence that is potentially relevant recognise the TUC, or the pallet may have been stored in the EPS area and have had Mr Ozog didn’t use the Pallet Return Form – see T16/5/11-15. is the first sentence of paragraph 39 of his statement: “When items fall onto the pallet so that it is covered in damaged items. I worked in DPS and EPS, I sometimes had to deal with products that had arrived to those areas in a damaged condition.” We can infer from this that KO did check products were acceptable. We have been unable to find an evidential basis for the rest of what Rs propose. 912 914 If a full pallet needs to be sent away, the Job Holder must ensure that its height is Rs agree to delete references to the Pallet Return Form. It is unclear, however, why Cs Delete whole paragraph. below 1.2 meters. If the pallet is over height, the system will not accept it as there have deleted the whole paragraph. is a barrier at the end of the in-feed. The Job Holder is required to remove the Reasons: As for 911/913 immediately above. None of this is overheight products and put them on the next empty pallet, and again complete a mentioned in KO’s statement and he was not questioned Pallet Return Form. If a full pallet needs to be sent away, the Job Holder must ensure that its height is below about it. 1.2 meters. If the pallet is over height, the system will not accept it as there is a barrier As above, Mr Ozog did not use the pallet return form. at the end of the in-feed. The Job Holder is required to remove the overheight products and put them on the next empty pallet. 962.2 964.2 The Job Holder was aware that there was an expectation that he would repack a The Job Holder was aware that there was an expectation that The paragraph concerns the target pick rates in Repack. certain number of cases per hour. The number varied slightly each year, but the Job he would repack a certain number of cases per hour. The Rs’ final proposed wording: Holder’s gross target (i.e. target for actual cases picked/repacked per hour) was in number varied slightly each year, but the Job Holder’s gross the region of 880 cases per hour each year in the Relevant Period. This was a target (i.e. target for actual cases picked/repacked per hour) The Job Holder was aware that there was an expectation that he would repack a challenging target and required the Job Holder to pick at a consistent fast pace. was in the region of 880 cases per hour each year in the certain number of cases per hour. The number varied slight each year, but the Job Relevant Period. This required the Job Holder to pick at a Holder's gross target (i.e. target for actual cases picked/repacked per hour) was in the There should be no references to a “challenging rate”. This is entirely subjective. region of 880 cases per hour each year in the Relevant Period. This was a challenging Even if an individual Job Holder found it challenging to work at this speed such a subjective comment is not relevant. A job is not more valuable because an individual target and required the Job Holder to pick at a consistent fast pace. employee finds it difficult, nor less valuable because an individual finds it easy. In Reasons: We agree with Cs. See also 703.2/705.2 above. The wording is factually accurate and in accordance with the evidence before the fact, Mr Ozog’s evidence was that he sometimes hit the targets and sometime did Tribunal. The only dispute concerns the highlighted wording. not – it depended on the pallets he had to pick and it became easier with experience: see para 44 of Mr Ozog’s statement at [10/109] and his evidence at T16/10/25 – As to the pick rate for Repack, see Lock 14-27 10/6-9; Meakes paras. 42-46 10/23-26; T16/11/3. and Botten para. 110 10/268. As to the communication of target pick rates and discussions about falling short of them with managers, see Rs’ comments on paras. 10 and 618. In relation to Repack in particular, see Meakes paras. 42-46 10/23-26. As Mr Meakes explained, someone may be spoken to even if working there for only 30 minutes {16/67}. Cs take issue with the target being a challenging one to meet: see Lock paras. 28-30 10/9 -10; Meakes para. 23 10/19; Ozog para. 43 10/108; and Crowdy para. 46 10/123. 482 of 548 Number number Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. KRZYSZTOF OZOG In oral evidence, Mr Ozog told the Tribunal that he sometimes met the reduced target and sometimes did not {17/11}. Mr Butcher described himself as “working at pace”, recognising that that the flow of products impacted on that {17/34}. See also Mr McDougall’s evidence about the number of people he had on PIPs at any time {16/113- 114}. The evidence supports the description of the target as challenging and the yellow highlighted text should be included. 1008 1009 Following the initial training, familiarisation training is also needed if makes or Cs object to the highlighted wording: Following the initial training, familiarisation training was also models are changed. In addition, for safety reasons and due to the complexity of operating the MHE , refresher training is required for each MHE as detailed below. needed if makes or models were changed. In addition, for Following the initial training, familiarisation training is also needed if makes or models are changed. In addition, for safety reasons and due to the complexity of operating the safety reasons, refresher training was required for each MHE MHE, refresher training is required for each MHE as detailed below. The reference to the “complexity” of operating MHE is purely subjective/evaluative. as detailed below. Mr Hart’s clear evidence was that the rationale for the fresher training was for reasons Reasons: We agree with Cs. Rs want us to make a finding that of both safety and the complexity of operating the MHE, and that Rs increased the something was particularly complex and Mr Hart’s / Rs’ frequency of it for those reasons (Hart para. 35 10/67). subjective perception that it was does not establish that as a The highlighted wording should be included accordingly. matter of objective fact. 483 of 548 NOEL CROWDY – DECISION Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY NC31 0.06 Safe Working Operating Procedures (‘SWOPs’) were periodically updated, Cs dispute whether the JH was required to attend refresher training when working Safe Working Operating Procedures (‘SWOPs’) were which required refresher training by the job holder in relation to any changes processes were changed as a result of a SWOP update. They say this was only periodically updated, which required refresher training by the to working processes relevant to his work on about three occasions during the occasionally the case. relevant period. job holder in relation to any changes to working processes The cross-examination of Mr Hart about how often SWOPs were updated was not relevant to his work. This occurred on about three occasions There was only evidence of Mr Crowdy being given refresher training (rather on point. There is no extant factual dispute about that. The dispute concerns during the relevant period. than being trained on SWOPs in other circumstances) on three occasions during whether refresher training was needed in relation to any changes to working the relevant period, see Mr Hart’s evidence at T15/126. Reasons: Cs are right about Mr Hart’s evidence: [T15/127] processes following a SWOP updated. NB – the transcript for 15/7/24 was originally wrongly referred to as day 16. Mr Hart confirmed clearly in his evidence that employees were so required (Hart References to T15 are to the transcript for day 15 on 15/7/24. paras. 26-27 10/65, see also McDougall para. 26 10/41). He was also clear in his oral evidence {16/128} and {16/143}. Rs’ wording should be included accordingly. Safe Working Operating Procedures ('SWOPs') were periodically updated, which required refresher training by the job holder in relation to any changes to working processes. NC169 84 Where some items in a case are damaged and there is no leakage, the Job The dispute concerns whether or not the JH uses numeracy skills in order to estimate Where some items in a case were damaged and there was no Holder will still pick the case into the tote provided that approximately 75% of whether 75% of the stock in a case is not damaged. leakage, the Job Holder would still pick the case into the tote, the stock in the pack is undamaged. The Job Holder visually estimates whether approximately 75% of the items are undamaged and uses basic numeracy skills provided that approximately 75% of the stock in the pack was The position is explained by Mr McDougall at paras. 40-42 and by the JH at Crowdy to do so. This happens occasionally (i.e. it does not happen on every shift). paras. 25-26 (10/117-118), and see also his oral evidence at {16/147}. Mr Ozog gives undamaged. The Job Holder visually estimated whether a further explanation at Ozog paras.39-42 10/107-108. approximately 75% of the items were undamaged and used The Cs additional wording in yellow is consistent with Mr Crowdy’s evidence that he would just look to see whether there was “roughly” 75% that was not numeracy skills to do so. This did not happen on every shift. Rs’ proposed wording reflects that whether the JH counts each item or estimates (as damaged and that this was not something he had to do often with Mr Crowdy may vary from case to case), that uses a numeracy skill (in that it is difficult to see Reasons: We have kept “numeracy skills” because it is agreed. stating that it is “not every day”: see T15/146/2 – T15/148/19. how else an estimate is made). Whether the skills involved were basic or otherwise is an As to how often this happens, Mr Crowdy explained in oral evidence that it does not evaluative exercise. “visually” is accurate and unobjectionable. happen every shift {16/147-148}. That is more precise and accurate than Cs’ proposed As to frequency, “occasionally” or “not often” are vague and wording “This does not happen often”. what is meant by them would differ from person to person. We Rs’ final proposed wording: agree with Rs that it is best simply to use Mr Crowdy’s unvarnished wording. Where some items in a case are damaged and there is no leakage, the Job Holder will still pick the case into the tote provided that approximately 75% of the stock in the pack is undamaged. The Job Holder estimates whether approximately 75% of the items are undamaged and uses numeracy skills to do so. This does not happen every shift. NC221 123 Identifying and judging whether product cases could be sent to store, despite Cs dispute the wording in yellow: Deciding whether product cases could be sent to store, despite missing or damaged products, including using the 75% rule in paragraph 84. missing or damaged products, including using the 75% rule in missing or damaged products, including using the 75% rule in paragraph 84. paragraph 84. The Cs’ concern here is one of consistency with the approach taken to the the JD of the lead claimants: see the Cs’ Supplemental skeleton argument at para Reasons: There should be consistency with Lead Claimants’ job 5. duplication between judge and identify in this context. Whether to send damaged descriptions, e.g. GA Nights / Ruth Randall 1.3.9, 2.5.20 & cases to store, including applying the 75% rule, involved an element of judgment as 3.15.8. Cf. Our reasons for LB399. explained in evidence (see Rs’ comments on NC169 above and in particular Crowdy 484 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY paras. 25-26 10/117-118). In those circumstances, Rs’ wording is to be preferred as products, including using the 75% rule in paragraph 84. NC265 144.2 Physical effort, including explosive effort, when lifting stacks of empty totes The only dispute concerns the word highlighted in the following paragraph: Physical effort, including explosive effort, when lifting stacks of when infeeding totes at the DPS tote infeed spur. A stack of six totes can weighs 17.5 – 18 kg and five totes, as is recommended, weighs approximately empty totes when infeeding totes at the DPS tote infeed spur. Physical effort, including explosive effort, when lifting stacks of empty totes when 15 kg. Lifting such stacks is a continuous repetitive task throughout the shift. A stack of six totes could weighs 17.5 – 18 kg and five totes, as infeeding totes at the DPS tote infeed spur. A stack of six totes can weighs 17.5 – 18 The Job Holder is lifting stacks of totes continuously throughout the shift apart kg and five totes, as is recommended, weighs approximately 15 kg. Lifting such stacks was recommended, weighed approximately 15 kg. The Job from when he uses the truck to collect a new pallet of empty totes. is a repetitive task throughout the shift. The Job Holder is lifting stacks of totes Holder is lifting stacks of totes, a repetitive task, throughout the continuously throughout the shift apart from when he uses the truck to collect a new shift, apart from when he used the truck to collect a new pallet It is not accurate and/or adds nothing of substance to the paragraph to say that pallet of empty totes. when working on infeeding empty totes the JH is “continuously” engaged in of empty totes. lifting or that it is a “continuous” repetitive task. The JH does not spend an entire The JH’s oral evidence was that on DPS generally he was continuously working, task lifting stacks of totes. The tasks undertaken on a shift in which the JH is Reasons: For us, “continuous” means something that happens all carrying and walking {16/150}. This paragraph concerns specifically the task of engaged in that activity are set out at paras 92 – 102 of the draft JD at [8/21-22]. the time and NC did not spend his whole time lifting totes apart infeeding. The JH gave unchallenged witness evidence consistent with this wording from when collecting new pallets. (Crowdy para. 29 10/119). Rs’ wording as set out above is to be preferred. NC281 152 Using the informaƟon and images on the PC, the Job Holder used cogniƟve skill This dispute concerns the route taken by the JH to pick in DPS. Cs characterise the Using the information and images on the PC, the Job Holder to planned and organise the best picking route to achieve maximum eﬃciency exercise as simply picking the products that are close to each other, and dispute sought to plan the best picking route to achieve maximum in order to achieve his pick rate targets and to prevent injury/faƟgue by as far that the JH needed to pay attention to the PC screen. as possible limiƟng the distance walked to complete the picks (i.e. picking efficiency, in order to achieve his pick rate targets and to products that are close to each other). This also required him to pay visual Rs’ position is overly simplistic. Mr McDougall’s evidence was that there was no set prevent injury/fatigue, by as far as possible limiting the aƩenƟon to the PC screen. order, and Mr Ozog described everyone as having their own strategy (for example, distance walked to complete the picks (e.g. picking products he preferred to do two trips if items were heavy) {16/100-101} and {17/18-19}. that were close to each other). The JH took into account factors The proposed wording is consistent with Mr Crowdy’s evidence at T15/151/16 including the proximity of the products, the weight of the As well as proximity, Mr Crowdy explained how he would take the weight of the – T15/153/25. The JH knew from experience where items were and made a products into account, as well as their shape, in deciding the order in which to pick products, and the shape of the products. quick plan in his head as to what his route would be. This didn’t require him to (Crowdy paras. 19-20 10/116, which is consistent with McDougall para. 48 10/45). “organise” his route – there were normally 5-8 pick locaƟons: see Mr Reasons: As above, we wish to be broadly consistent in our In oral evidence, he explained that, for example, he would make a plan and not McDougall’s statement at para 47 [10/45]. approach to the lead claimants and the comparators. With that waste time going to a location if he knew the item would be too heavy to add to in mind, “cognitive skills” is either meaningless (in that it just what he was already carrying {16/153}. means ‘used his brain’, something required to do anything at It is unclear why Cs argue that the JH did not need to pay attention to the all) or it is inappropriately evaluative. Cf. (e.g.) Sales Assistant / information on the screen about what to pick (see also Hart para. 66 10/73). Linda Davies 3.37.1. On the evidence, we are not satisfied that Rs’ final proposed wording: in practice NC did actually “plan the best picking route … [etc]”; Using the information and images on the PC, the Job Holder used cognitive skill to all we can say is that he endeavoured to do so. We have plan the best picking route to achieve maximum efficiency in order to achieve his replaced “i.e.” with “e.g.” because there was a bit more to it pick rate targets and to prevent injury/fatigue by as far as possible limiting the than picking products that were close together. The other distance walked to complete the picks. The JH took into account factors including wording we have included from both sides is factually correct the proximity of the products, the weight of the products, and the shape of the and unobjectionable. Rs’ final sentence is unnecessary – if not products. This also required him to pay visual attention to the PC screen. evaluative, it means no more than “look at the PC screen” and that that was done is clear from the paragraph’s first sentence. NC294 154.7 Team Manager or ShiŌ Manager, who may approach the Job Holder during Cs’ previously proposed the following wording: Team Manager or Shift Manager, who would speak to the Job and/or at the end of the shiŌ if his pick rate was in the boƩom three to ﬁve for the shiŌ. The JH was unlikely to be spoken to if he missed his pick rate by a Holder if he was in the bottom three for pick rate and might 485 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY Team Manager or ShiŌ Manager, who may approach the Job Holder during and/or at small margin, i.e. 10%. is not achieving his expected pick rate In respect of speak to him if he was fourth or fifth from bottom, subject to it performance management and the low chance of poor performance the end of the shiŌ if he is not achieving his expected pick rate by more than a small being unlikely he would be be spoken to if he missed his pick resulting in dismissal see paragraph 155.3 below, margin. rate by only a small margin, i.e. 10%. When Rs noƟﬁed Cs that their wording was agreed, Cs stated that their posiƟon had In terms of underperformance the focus was upon those on the shiŌ with the Reasons: See Leonard Butcher’s JD LB36. NC gave more evidence changed, and their previously suggested wording was no longer available for lowest pick rate and the JH was unlikely to be spoken to if he missed his target on this point than Mr Butcher or Mr Ozog did. Cs’ proposed last acceptance. Rs remain willing to agree Cs’ originally proposed wording. by a small margin: See Mr Crowdy’s evidence at T15/156/2-21, Mr Lock’s evidence at T15/28/8 – T15/30/25 and Mr Meakes at T15/42/1 – 22. The traﬃc sentence does not belong in this part of the JD, which is about Rs understand Cs’ posiƟon to be that a manager might approach the JH only if his pick light system did not ﬂag up anyone within 10% of their target: see Mr Meakes at who NC had to communicate with, and the issue is adequately rate was in the boƩom three to ﬁve for the shiŌ. The Tribunal will note that the T15/50 . dealt with in NC298. language herein refers to when a manager might approach the JH – it does not state The evidence set out in the submissions in respect of NC298/para 155.3 below that the manager would deﬁnitely do so in all scenarios. demonstrates that the likelihood of underperformance ulƟmately resulƟng in a The evidence does not support the ﬁnding Cs invite the Tribunal to make, to the eﬀect dismissal was low, a maƩer that is relevant given performance management that a manager was only enƟtled to and/or would only ever approach someone who processes and the possibility of dismissal is menƟoned a number of Ɵmes in the JD. had a pick rate in the boƩom three to ﬁve (contrast Mr Meakes’ evidence that the boƩom 3 to 5 would “certainly” be spoken to {16/42-43}). There is an abundance of evidence before the Tribunal as to the regularity with which management at Rye Park speak to employees who do not meet targets/expectaƟons. For example: Crowdy paras. 11-13 (10/114-115), para. 35 (10/120), para. 37(10/121); Meakes para. 4 (10/14), para. 14 (10/14), paras. 29-30 (10/20), para. 36 (10/23), para. 45 (10/25), paras. 59-62 (10/28-29), paras. 63-67 (10/29-30), para. 79 (10/32); McDougall paras. 18-21 (10/39-40), paras. 23-24 (10/40); Butcher para. 13 (10/79-80), paras. 30-31 (10/84-85), paras. 40-41 (10/88- 89), para. 46 (10/89), para. 49 (10/90); and Ozog paras. 11-13 (10/99-100), para. 31 (10/106), para. 44 (10/109). That is consistent with the oral evidence heard by the Tribunal. Time and again both managers and the comparators gave evidence about the expectaƟon that underperformance would result in managerial intervenƟon (for example, {16/24-25}, {16/32-37}, {16/42-43}, {16/51}, {16/64}, {16/67}, {16/69}, {16/77}, {16/112}, {16/165-166} {16/172}, {16/180} {17/7-8}, and {17/28}. The overall impression was consistent with Mr Lock’s descripƟon of the depot as “an environment of performance management” {16/28-29} and with Mr McDougall’s evidence that of the 300 people for whom he was responsible, 15 to 20 would be on a PIP in any one year {16/113-114}. The JH gave evidence supportive of the wording proposed by Rs (Crowdy paras. 8-13 10/114-115). He said, for example, that if his rate was 250 against a target of 300 he would “definitely” be spoken to (Crowdy para. 11 10/114). Rs’ ﬁnal proposed wording (mirroring the wording previously suggested by Cs): Team Manager or ShiŌ Manager, who may approach the Job Holder during and/or at the end of the shiŌ if he is not achieving his expected pick rate by more than a small margin. NC296155.1 He worked as part of a continuous logistics process, where goods were The dispute concerns whether wording should be added because, as Cs contend, the He worked as part of a continuous logistics process, where JH did not know what impact his pick rate had on the depot’s performance. goods were received in Inbound at the warehouse, fed into the and/or stored, picked in DPS (or EPS), and distributed out to retail stores 24 hours per day, 7 days per week (apart from Christmas Day). The Job Holder’s automatic system, repacked and/or stored, picked in EPS (or This is addressed by the JH at Crowdy para. 7 10/113 where he explains this was duties formed part of the process required to fulfil store orders accurately and discussed during huddles (see also Butcher para. 42 10/88 and McDougall para. 31 DPS), and distributed out to retail stores 24 hours per day, 7 on time. If products were not picked accurately and in a timely manner, this 486 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY 10/42). The evidence does not support Cs’ position. This was not addressed in oral potentially impacted on the rest of the product flow chain. The Job Holder did days per week (apart from Christmas Day). The Job Holder's evidence. not know precisely what impact his pick rate had on the depot’s performance duties formed part of the process required to fulfil store orders day to day, but he was aware in a general sense of the impact of pick rates on Rs’ final proposed wording: accurately and on time. If products were not picked accurately and in a timely manner, this potentially impacted on the rest of He worked as part of a continuous logistics process, where goods were received in The word “potentially” clarifies that there would not necessarily be an impact the product flow chain. The Job Holder did not know precisely Inbound at the warehouse, fed into the automatic system, repacked and/or stored, on product flow for all instances of inaccurate picking or picking that falls below what effect the pace of the work in Inbound had on the depot’s picked in EPS (or DPS), and distributed out to retail stores 24 hours per day, 7 days the target. performance day to day, but he was aware in a general sense per week (apart from Christmas Day). The Job Holder's duties formed part of the process required to fulfil store orders accurately and on time. If products were not The remaining wording in yellow is necessary to clarify the extent of the JH’s of the impact of pick rates on product flow, e.g he knew that picked accurately and in a timely manner, this impacted on the rest of the product understanding of the impact of pick rates on the depot’s performance. working too slowly or making any mistakes could have an flow chain. impact on products going out to store on time. Reasons: There is no real factual dispute here. Cs additional wording is possibly unnecessary (how important it is will be for the experts and stage 3), but is factually accurate and we have added an example taken almost word-for-word from NC’s NC297

155.2 The Job Holder was aware that there was an expectaƟon that he would pick a The only dispute on this paragraph concerns whether it is accurate to describe the The Job Holder was aware that there was an expectation that certain number of cases per hour. The number varied slight each year, but the target pick rate on DPS as “challenging”. he would pick a certain number of cases per hour. The number Job Holder’s gross pick rate target (i.e. target for actual cases picked per hour) was in the region of 298 - 337 cases per hour each year in the Relevant Period. varied slightly each year, but the Job Holder’s gross pick rate On this, see Lock paras. 28-30 10/9 -10; Meakes para. 23 10/19; Crowdy paras. 10- This was a challenging target and required the Job Holder to pick at a 12 10/114; Butcher para. 30 10/84-85, para. 33 10/85; and Ozog para. 32 10/106 target (i.e. target for actual cases picked per hour) was in the (see also 8/375-852 to see the issue being raised with the JH). region of 298 - 337 cases per hour each year in the Relevant There should be no references to a “challenging rate”. This is entirely subjective. Period. This required the Job Holder to pick at a consistent The JH Mr Crowdy described having to “power walk” to meet his target and “almost Even if an individual Job Holder found it challenging to work at this speed, such pace. running” to get off the PIP {16/149} and {16/155}. Mr Butcher and Mr Ozog both a subjective comment is not relevant. A job is not more valuable because an gave examples of not meeting the reduced targets {17/7-8} and {17/30}. As Mr Lock individual employee finds it difficult, nor less valuable because an individual (Mr Reasons: We agree with Cs about “challenging rate”. (As an explained, to meet those targets it was necessary to work at a consistent pace and Crowdy’s super picker) finds it easy. aside, we note that Cs used that word in a comparable context not waste time {16/26-27}. See also Mr McDougall’s evidence about the number of in some of the Lead Claimants’ JDs, e.g. Amanda Solts 3.6.34). people he had on PIPs at any time {16/113-114}. The description of the targets as Whether or not NC, subjectively, found it difficult to pick at a challenging is plainly made out. particular rate does not translate into a finding of objective fact we could make that might conceivably be relevant to the equal The Job Holder was aware that there was an expectation that he would pick a value question. To put it in general terms, how good or bad certain number of cases per hour. The number varied slight each year, but the Job someone is at their job cannot affect its value; what matters is Holder’s gross pick rate target (i.e. target for actual cases picked per hour) was in what the job entails. the region of 298 – 337 cases per hour each year in the Relevant Period. This was a challenging target and required the Job Holder to pick at a consistent pace. NC298

155.3 The Job Holder was aware that Team Managers and ShiŌ Managers had access The dispute concerns pick rates in DPS. Rs’ final proposed wording is as follows: The Job Holder was aware that Team Managers and Shift to real-Ɵme data of the Job Holder’s pick rate and that this was reviewed regularly throughout the shiŌ and, if the Team Manager considered that the Managers had access to real-time data of the Job Holder’s pick The Job Holder was aware that Team Managers and Shift Managers had access to Job Holder was not working at the required pace, this could result in a rate and that this was reviewed regularly throughout the shift real-time data of the Job Holder’s pick rate and that this was reviewed regularly conversaƟon where the Team Manager would quesƟon the reasons for the Job throughout the shift and, if the Team Manager considered that the Job Holder was and, if the Team Manager considered that the Job Holder was Holder’s pace. A reasonable explanaƟon (e.g. that system faults or slower not working at the required pace, this could result in a conversation where the Team not working at the required pace, this could result in a colleagues or a need to restack had created delays) would be accepted, Manager would question the reasons for the Job Holder’s pace. A reasonable conversation where the Team Manager would question the although the Team Leader would check the accuracy of such explanaƟon. The explanation (e.g. that system faults had created delays) would be accepted, Job Holder was spoken to informally about his pick rate by Team Managers. reasons for the Job Holder’s pace. A reasonable explanation Failure to work at the required pace could result in coaching and if that was (e.g. that system faults had created delays) would be accepted, not successful in formal warnings and potenƟally terminaƟon of his 487 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY although the Team Leader would check the accuracy of such explanation. The Job employment. Very few, if any, of the JH’s warehouse colleagues were dismissed although the Team Leader would check the accuracy of any Holder was spoken to informally about his pick rate by Team Managers. for poor performance (as opposed to conduct issues) in the Relevant Period. such explanation. The Job Holder was spoken to informally The only dispute concerns the example. Cs wish to add a further example of “an about his pick rate by Team Managers. aisle with heavy goods”. In respect of an explanaƟon relaƟng to the need to restack: see Mr Meakes at Reasons: There is no need for additional examples. So far as para 20 [10/18]. That example is not supported by the evidence, or at least not in such general concerns dismissals, Cs are right about the raw numbers, but terms. The evidence before the Tribunal is that the rate already varied by aisle to we think it would be potentially misleading to include what Cs In respect of the evidence that there were no dismissals purely for poor take this into account (e.g. Lock paras. 19-20 10/7-8). Mr Crowdy said that if he said performance over the RP and that the likelihood of a dismissal for not propose. Cs seem to be wanting to imply that because he was having to pick heavy items, a manager would respond by asking him to work performing to target was therefore very low: see the evidence of Mr Lock at practically no one was dismissed purely for poor performance, quicker (Crowdy para. 11 10/114). This is consistent with the evidence of Mr T15/20/14 – T15/21/7 and Mr Meakes at T15/47/1 – T15/48/5. AddiƟonally, the performance management was not in practice as onerous as Rs Rs have disclosed no documentary evidence to support the conclusion that there Meakes, who told the Tribunal that picking heavy items was not generally seen as a were any dismissals purely for poor performance over the RP. suggest. However, the low level of dismissals could be down to good excuse (Meakes para. 20 10/18). Mr Crowdy also told the Tribunal in oral a number of things, including: efficient recruitment practices – evidence that weight was not generally considered a good explanation as others on The reference to the low chance of a dismissal for poor performance is relevant recruiting as employees those who had proved their metal as the line in DPS were picking the same products {16/157}. given the reference both in this paragraph and elsewhere in the JD to agency workers; effective performance management; those performance management processes. Rs’ proposed wording set out above is to be preferred. who realised they were not capable of meeting performance targets ‘jumping before they were pushed’; consistent poor performance being due in part to conduct issues, and it being simpler to dismiss for misconduct than for poor performance. How much it was due to such things is unquantifiable. Accordingly, the bare fact that practically no one was dismissed purely for poor performance is not useful or meaningful. We have therefore decided it is best to keep this part of the JD as agreed by the parties prior to closing submissions, i.e. without Cs’ wording about dismissals. NC365 183 The DPS area is someƟmes hot in the summer and someƟmes cold in the The dispute concerns temperature in DPS. The JH’s evidence of his personal The DPS area was hot in the summer and cold in the winter. winter. Generally, the temperatures will range between 6 – 26 degrees. experience of this is at Crowdy para. 66 10/128 (see also Butcher paras. 57-58 Generally, the temperatures would range between 6 - 26 (10/93); and Botten paras. 76-78 10/262). degrees. This is obvious. Summers are not always hot and the winters are not always The wording proposed by Rs has been agreed by Cs in the JDs of both Mr Butcher cold. Reasons: It would be odd to have different wording about this and Mr Ozog. It is unclear why the position would be different in relation to the JH. in this JD from that in the other Rye Park JDs. Cs have provided Rs final proposed wording: no explanation for why they agreed this wording in other JDs but will not agree it here. Rs’ wording does not imply it is The DPS area is hot in the summer and cold in the winter. Generally, the temperatures will range between 6 - 26 degrees. always hot in summer and always cold in winter. NC367 185 In the winter, the temperature is usually a few degrees, but it can drop to zero Cs object to the inclusion of Mr Crowdy’s evidence about the working environment In the winter, the temperature was usually a few degrees, but degrees and it is parƟcularly cold in the early morning when the Job Holder in DPS in the winter months (see Crowdy para. 66 10/128) (highlighted below). The it could drop to zero degrees and it was particularly cold in the starts his shiŌ at 6 am. The Job Holder moves constantly throughout his shiŌ, wording makes it clear that it reflects Mr Crowdy’s words, and that was his evidence but to keep warm, the Job Holder wears a hat, a sweatshirt, a jumper, a ﬂeece early morning when the Job Holder started his shift at 6 am. The to the Tribunal. The wording should be included. jacket, two pairs of gloves and two pairs of socks. The Job Holder stated that Job Holder moved constantly throughout his shift, but to keep his feet were sƟll “freezing” and that it felt to him that it was colder inside the Rs’ final proposed wording: warm, he wore a hat, a sweatshirt, a jumper, a fleece jacket, warehouse than outside of it in winter. two pairs of gloves and two pairs of socks. In the winter, the temperature is usually a few degrees, but it can drop to zero degrees and it is parƟcularly cold in the early morning when the Job Holder starts his The Job Holder’s personal experience of how he felt is not relevant. The fact Reasons: We agree with Cs. NC’s subjective feelings about how shiŌ at 6 am. The Job Holder moves constantly throughout his shiŌ, but to keep that an employee may ﬁnd things parƟcularly cold or, on the other hand, is not cold it was says nothing useful about how objectively cold it warm, the Job Holder wears a hat, a sweatshirt, a jumper, a ﬂeece jacket, two pairs aﬀected by cold, does not make a job more or less valuable. was. (It is commonplace for individuals’ perceptions of the of gloves and two pairs of socks. The Job Holder stated that his feet were sƟll 488 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY “freezing” and that it felt to him that it was colder inside the warehouse than temperature to differ completely). The only findings we could outside of it in winter. make about this would be on the basis of recorded data. NC381 197.1 There is a risk of cut type injuries (although the Job Holder had not cut himself), Cs contend that the risk of cut-type injuries from broken glass or sharp packaging in There was a risk of cut-type injuries from the following things, from: DPS is “minimal”. although the Job Holder did not sustain such an injury during the Relevant Period: The evidence does not support the inclusion of that qualification. Indeed, there are Mr Crowdy conﬁrmed that he had not cut himself, see T15/164-7-16 and his records of such accidents occurring (Botten para. 101.1 10/266). That is consistent Interview at 8/455-6. Reasons: It is factually correct that NC did not cut himself. How with the JH’s evidence that whilst he had not been cut because he was vigilant, glass important that fact is to the job evaluation will be for the experts could cut through the picking gloves {16/164}. There is a risk of cut type injuries from: NC466 226 Product recogniƟon as The Job Holder will need to idenƟfy the correct products The paragraph concerns what the JH needed to know about products for the The Job Holder needed to identify the correct products using a using a brief descripƟon of the item provided on the TCP screen, for example purposes of his work on the TCP (as distinct from what he needed to know when brief description of the item provided on the TCP screen (there ‘lipsƟck’ (there is no image of the item or packaging) (paragraph [214]). stacking products about which Messrs McDougall and Ozog were cross examined). was no image of the item or packaging) (paragraph [214]). As Mr McDougall explained, the JH would need to know enough about the item to There is no product recogniƟon as such. The screen provides a descripƟon. See Reasons: Referring to what had to be done as “product check if it did or did not match the description of the item that ought to be in the Mr McDougall at para 71 [10/49]. tote (McDougall para. 71 10/49). As the JH said in oral evidence, he needed to know recognition” is a little overblown. Based on the evidence what product was missing from the tote {16/164-165}. referred to, we do not know whether “lipstick” is an authentic example of a product description on the TCP screen, and the oral evidence [T15/167/6-9] suggests it isn’t and that it might Product recognition as the Job Holder will need to identify the correct products be, e.g., a particular type of lipstick. using a brief description of the item provided on the TCP screen (there is no image of the item or packaging) (paragraph [214]). NC517 254.1 He worked as part of a continuous logistics process, where goods were See Rs’ comments on NC296 above, which is a materially identical dispute. Delete whole paragraph. Rs’ final proposed wording: and/or stored, picked in DPS / EPS, and distributed out to retail stores 24 hours He worked as part of a continuous logistics process, where goods were received in appearing multiple times in the same JD. If both sides agree that Inbound at the warehouse, fed into the automatic system, repacked and/or stored, time. If tote errors were not remedied at the TCP accurately and in a timely this is necessary, the paragraph should be identical to NC296, for picked in DPS / EPS, and distributed out to retail stores 24 hours per day, 7 days per manner, this potentially impacted on the rest of the product flow chain. The the reasons given in relation to NC296. week (apart from Christmas Day). The Job Holder’s duties formed part of the process Job Holder did not know precisely what impact he had on the depot’s performance day to day, but he was aware in a general sense of the impact of required to fulfil store orders accurately and on time. If tote errors were not remedied his performance on the product flow. at the TCP accurately and in a timely manner, this impacted on the rest of the product flow chain and the depot’s ability to accurately distribute orders to store in a timely manner or until the stock was re-ordered. NC533 266.2 issues with the TCPs or the OCB, such as a fault, although this was unusual; Cs suggest issues with the TCPs or OCB were unusual. The basis for that is unclear. issues with the TCPs or the OCB, such as a fault; Rs’ final proposed wording: Reasons: The evidence referred to by Cs does not adequately See Mr Crowdy’s interview [8/461] and evidence at T15/166/25 – T15/167/2. support the finding they want the Tribunal to make. None of it issues with the TCPs or the OCB, such as a fault; relates to OCB and e.g. Mr Crowdy saying “not a lot goes wrong with TCP” or agreeing that “The automation, the machinery itself, does not break down very often” does not mean that “issues” with either TCPs or with the OCB were “unusual”. 489 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY NC664 323 Provided there is no leakage and the remaining products in the case amount The dispute is the same as that at NC169. Rs’ repeat the comments on that paragraph. Provided there is no leakage and the remaining products in the to at least 75% of the case content, the Job Holder can sƟll pick a damaged case and send it to store (removing any damaged products as above). The Job case amount to at least 75% of the case content, the Job Holder Holder esƟmates whether approximately 75% of the products in the case are can still pick a damaged case and send it to store (removing any Provided there is no leakage and the remaining products in the case amount to at undamaged and uses basic numeracy skills to do so. damaged products as above). The Job Holder estimates whether least 75% of the case content, the Job Holder can still pick a damaged case and send approximately 75% of the products in the case are undamaged it to store (removing any damaged products as above). The Job Holder estimates See above NC169 re “basic” numeracy skills. and uses numeracy skills to do so. whether approximately 75% of the products in the case are undamaged and uses numeracy skills to do so. Reasons: As for NC169. NC708 348 The process to follow to deal with the “Gap Check Cabin”error messages which Cs’ proposed wording suggests that the JH only have to know the process to deal with The process to be followed to deal with the different types may be displayed on the control panel, including “Gap Check Cabin” when the one of the EPS error messages. It is unclear why Cs adopt that position. error messages which might have been displayed on the control EPM will not move. If the correct process for Gap Check Cabin is not followed, this will aﬀect the safety of the Job Holder and any colleague working on the panel, for example the "Gap Check Cabin" when the EPM would other EPM in the same aisle, which will automaƟcally stop (paragraphs 341 – not move. If the correct process for Gap Check Cabin was not The process to follow to deal with the different types error messages which may be 343); followed, this would affect the safety of the Job Holder and any displayed on the control panel, including "Gap Check Cabin" when the EPM will not The EPM automatically stops if there is a Gap Check Error, see Mr Crowdy’s colleague working on the other EPM in the same aisle, which move. If the correct process for Gap Check Cabin is not followed, this will affect the evidence at T15/167/16-22. No other error messages were referred to. would automatically stop (paragraphs 341 - 343); safety of the Job Holder and any colleague working on the other EPM in the same aisle, which will automatically stop (paragraphs 341 - 343); Reasons: Mr Crowdy did not refer to other error messages because he was not asked about them. We think it is inherently improbable that “Gap Check Cabin” was the only error message. NC715 355 Identifying and judging whether individual stock items could be sent to store, Cs dispute the wording in yellow: Deciding whether individual stock items could be sent to store, using the 75% rule in paragraph 323; using the 75% rule in paragraph 323; missing or damaged products, including using the 75% rule in paragraph 323. Linguistic challenge – maintained only if challenges to similar language in Reasons: As for NC221. claimant JDs are maintained. duplication between judge and identify in this context. Whether to send damaged cases to store, including applying the 75% rule, involved an element of judgment as explained in evidence (see Rs’ comments on NC169 above and in particular Crowdy paras. 25-26 10/117-118). In those circumstances, Rs’ wording is to be preferred as products, including using the 75% rule in paragraph 323. NC765

383.1 He worked as part of a continuous logistics process, where goods were See Rs’ comments on NC296 above, which is a materially identical dispute. Delete whole paragraph. Rs’ final proposed wording: and/or stored, picked in EPS (or DPS), and distributed out to retail stores 24 Reasons: As for NC517. hours per day, 7 days per week (apart from Christmas Day). The Job Holder’s He worked as part of a continuous logistics process, where goods were received in duties formed part of the process required to fulfil store orders accurately and Inbound at the warehouse, fed into the automatic system, repacked and/or stored, on time. If products were not picked accurately and in a timely manner, this picked in EPS (or DPS), and distributed out to retail stores 24 hours per day, 7 days potentially impacted on the rest of the product flow chain. The Job Holder did per week (apart from Christmas Day). The Job Holder's duties formed part of the not know precisely what impact his pick rate had on the depot’s performance day to day, but he was aware in a general sense of the impact of pick rates on process required to fulfil store orders accurately and on time. If products were not picked accurately and in a timely manner, this impacted on the rest of the product flow chain. 490 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY NC766

383.2 The Job Holder was aware that there was an expectation that he would pick a The only dispute on this paragraph concerns whether it is accurate to describe the The Job Holder was aware there was an expectation that he certain number of cases per hour. The number varied slightly each year, but target pick rate on EPS as “challenging”. would pick a certain number of cases per hour. The number the gross pick rate target in EPS (i.e. target for actual cases picked per hour) was in the region of 163 – 188 cases per hour each year in the Relevant Period. varied slightly each year, but the gross pick rate target in EPS On this, see Lock paras. 28-30 10/9 -10 (and his oral evidence at {16/26-27}; Meakes As the Job Holder was based in DPS, he was given a 15% leeway on the normal para. 23, para. 35-39 10/22-23; and Crowdy para. 37 10/121. Mr Crowdy said that (i.e. target for actual cases picked per hour) was in the region target, but this was still a challenging target and required the Job Holder to even with the reduced targets, these were not too lenient. The job was hard and of 163 – 188 cases per hour each year in the Relevant Period. pick at a consistent pace. He estimates that he picked at a rate of 150 to 160 horrible, and was hard work throughout the shift {16/171-172}. As the Job Holder was based in DPS, he was given a 15% cases per hour which was considered sufficient, given that he was a DPS based colleague. leeway on the normal target. This required the Job Holder to See also Mr McDougall’s evidence about the number of people he had on PIPs at any time {16/113-114}. pick at a consistent pace. He estimates that he picked at a rate There should be no references to a “challenging rate”. This is entirely of 150 to 160 cases per hour, which was considered sufficient, The evidence supports a finding that meeting the targets was challenging. subjective. Even if an individual Job Holder found it challenging to work at this given that he was a DPS based colleague. Rs’ final proposed wording: speed, such a subjective comment is not relevant. A job is not more valuable Reasons: As for NC297. because an individual employee finds it difficult, nor less valuable because an The Job Holder was aware that there was an expectation that he would pick a individual (Mr Crowdy’s super picker) finds it easy. certain number of cases per hour. The number varied slightly each year, but the gross pick rate target in EPS (i.e. target for actual cases picked per hour) was in the region of 163 – 188 cases per hour each year in the Relevant Period. As the Job Holder was based in DPS, he was given a 15% leeway on the normal target, but this was still a challenging target and required the Job Holder to pick at a consistent pace. He estimates that he picked at a rate of 150 to 160 cases per hour which was considered sufficient, given that he was a DPS based colleague. NC777 390 The Job Holder had to remember and apply the correct manual handling Cs dispute that applying the correct manual handling techniques was made more The Job Holder had to remember and apply the correct manual techniques when picking from the pick locaƟon and when stacking and difficult for the JH by him having the pressure of meeting an expected hourly pick handling techniques when picking from the pick location and restacking a roll cage, to prevent injury. This was made more diﬃcult by the rate. pressure of the expected hourly pick rate, and also by the increased faƟgue when stacking and restacking a roll cage, to prevent injury. This towards the end of a shiŌ. The JH’s evidence is at Crowdy para. 38 10/121 (see also Butcher para. 44 10/89, and was made more difficult by the expected hourly pick rate, and further Botten paras. 71-73 10/261 to the effect that this was acknowledged within also by the increased fatigue towards the end of a shift. The words “the pressure of” add nothing other than a subjecƟve overlay upon Rs, and also 4/145 where the pressure to maintain pick rates is referred to in the the facts themselves. Reasons: We agree with Cs. NC’s evidence at para 38 of his manual handling risk assessment. Mr Ozog’s oral evidence was that some people did statement is no more than that, in general terms, “I did feel the not lift properly because of the pressure to meet the target {17/21-22}. pressure of the pick rate”. when picking from the pick location and when stacking and restacking a roll cage, to prevent injury. This was made more difficult by the pressure of the expected hourly pick rate, and also by increased faƟgue towards the end of a shiŌ. NC788 400.1 dealing with spillages, fallen products (where products fall into the crane from The only dispute concerns the highlighted words which Cs wish to add: dealing with spillages, fallen products (where products fall the roll cages, or from above through the gap between the EPM or the racking, although this is not something the Job Holder ever experienced, save for a bag into the crane from the roll cages, or from above through the dealing with spillages, fallen products (where products fall into the crane from the of flour bursting on the mesh) or other hazards such as a sudden stop of the gap between the EPM or the racking) or a sudden stop of the roll cages, or from above through the gap between the EPM or the racking, although EPM; this is not something the Job Holder ever experienced) or a sudden stop of the EPM; EPM; In oral evidence Mr Crowdy told the Tribunal he had been covered in flour dropped Reasons: Mr Crowdy’s oral evidence at [T15/173/1-11] was an See Mr Crowdy’s witness statement at para 41 [10/122] and evidence at from above in EPS {16/173}. There is no reason to reject that evidence. example. He did not say and suggest that it was the only T15/173. incident he ever experienced. Rs’ wording should be preferred, with the highlighted part above omitted. 491 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY dealing with spillages, fallen products (where products fall into the crane from the roll cages, or from above through the gap between the EPM or the racking) or a sudden stop of the EPM; NC799 405.1 The Job Holder was responsible for handling stock items correctly in keeping At para. 68.2 (10/73), Mr Hart confirms, having liaised with the manufacturer, that The Job Holder was responsible for handling stock items with his training throughout the shiŌ so as not to drop products which could the highest point of the cab in EPS is 14.5 metres from the ground. correctly in keeping with his training throughout the shift so as have caused damage to them which in turn had a ﬁnancial impact on Sainsbury’s. If product cases are not dealt with correctly, it may result in the not to drop products which could have caused damage to them There is no other extant dispute in respect of this paragraph. packaging breaking open and individual products falling out. For example, the which in turn had a financial impact on Sainsbury's. If product Rs’ final proposed wording: boƩom of a box could fall out. If that happens in EPS, smaller sized products cases were not dealt with correctly, it might have resulted in will fall through the gap between the racking and the EPM (20 – 25 cm gap), fall from height (approximately 9 14.5 metres) and not be retrievable (this did the packaging breaking open and individual products falling training throughout the shift so as not to drop products which could have caused not happen to the Job Holder). out. For example, the bottom of a box could fall out. If that damage to them which in turn had a financial impact on Sainsbury’s. If product cases happened in EPS, smaller sized products would fall through the are not dealt with correctly, it may result in the packaging breaking open and Items would not fall from the top of the top ﬂoor to the boƩom of the ground gap between the racking and the EPM (20 - 25 cm gap), fall from individual products falling out. For example, the bottom of a box could fall out. If that ﬂoor. T15/172. height and not be retrievable. The overall height of the racking, happens in EPS, smaller sized products will fall through the gap between the racking from ground level to the top of the racking was 17.15 m. Just and the EPM (20 – 25 cm gap), fall from height (up to approximately 14.5 metres) and not be retrievable (this did not happen to the Job Holder). under 9 m from the top of the racking and just over 8 m from the ground floor was a Mezzanine floor made from corrugated steel mesh. Liquids from a broken container could fall all the way from top to bottom (i.e. 17 m approx) and items could fall from the top to the Mezzanine floor (approx. 9 m), break / bust and spill their contents from there onto the ground floor. Reasons: Both sides’ wording and submissions are inaccurate. 14.5m from ground level is the floor of the cab, not the “highest point of the cab”: para 68.2 of Mr Hart’s statement. Our wording accurately reflects the contents of that statement and [T15/106] and [T15/172-173]. NC826 408 In summer, the temperature in the EPM is someƟmes hot and can reach a Cs object to the inclusion of Mr Crowdy’s evidence about the working environment In summer, the temperature in the EPM was could be in the 30s. temperature in the 30s. The Job Holder is sƟll required to wear a hard plasƟc in EPS in the summer months (see Crowdy para. 66 10/128) (highlighted below). The The Job Holder was still required to wear a hard plastic hat in hat in the heat. Wearing a hard had in the heat was described as “horrible” by wording makes it clear that it reflects Mr Crowdy’s words, and that was his evidence the Job Holder. There is a fan in the EPM, but it is located above the job holders the heat. There was a fan in the EPM, but it is located above the to the Tribunal. The wording should be included. head and the Job Holder does not recognise any noƟceable beneﬁt from it. job holders head and the Job Holder did not recognise any On how frequently it is hot, see Rs’ comments on NC365 above and Crowdy para. noticeable benefit from it.

[66]Again, the same wording as to temperature (save for the highlighted part below) These suggesƟons limit the entry to factual maƩers rather than generalisaƟons Reasons: As to the first sentence, see NC365. As to the has been agreed in the JDs of both Mr Ozog and Mr Butcher and it is unclear why or comment. contentious sentence, we agree with Cs. Cf. NC367. the position would differ in respect of the JH. In summer, the temperature in the EPM is hot can reach a temperature in the 30s. The Job Holder is still required to wear a hard plastic hat in the heat. Wearing a hard had in the heat was described as "horrible" by the Job Holder. There is a fan in the EPM, but it is located above the job holders head and the Job Holder does not recognise any noticeable benefit from it. 492 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY NC827 409 In winter, the temperature in the EPM is someƟmes cold and broadly reﬂects Cs object to the inclusion of Mr Crowdy’s evidence about the working environment In winter, the temperature in the EPM was cold and broadly outside temperature. It is an ambient depot with no heaƟng. The Job Holder in EPS in the winter months (see Crowdy para. 66 10/128) (highlighted below). The reflected the outside temperature. It was an ambient depot wears a hat, a sweat shirt, a jumper, a ﬂeece jacket, two pairs of gloves and wording makes it clear that it reflects Mr Crowdy’s words, and that was his evidence two pairs of socks. The Job Holder stated that his feet were sƟll “freezing” and with no heating. The Job Holder wore a hat, a sweat shirt, a to the Tribunal. The wording should be included. that it felt to him that it was colder inside the warehouse than outside of it in jumper, a fleece jacket, two pairs of gloves and two pairs of winter. On how frequently it is cold, see Rs’ comments on NC365 above and Crowdy para. socks. 66. Again, the same wording as to temperature (save for the highlighted part below) These suggesƟons limit the entry to factual maƩers rather than generalisaƟons Reasons: See NC365 and NC367. has been agreed in the JDs of both Mr Ozog and Mr Butcher and it is unclear why or comment. the position would differ in respect of the JH. In winter, the temperature in the EPM is cold and broadly reﬂects outside temperature. It is an ambient depot with no heaƟng. The Job Holder wears a hat, a sweat shirt, a jumper, a ﬂeece jacket, two pairs of gloves and two pairs of socks. The Job Holder stated that his feet were still "freezing" and that it felt to him that it was colder inside the warehouse than outside of it in winter. NC828 410 The EPS area has no natural light and is not very well lit. This relates to a description of the working environment in EPS that has been agreed The EPS area has no natural light. in relation to Mr Ozog. It is unclear why the position ought to be different in relation “Not very well lit” is comment and subjective. It was not so poorly lit that the Reasons: We agree with Cs as to “Not very well lit”. The fact that to the JH. respondents considered it needed improving for safety or any other reason. some people thought the EPS area looked like a high security prison is not a finding of fact that means anything of substance The EPS area has no natural light and is not very well lit. The EPS area is referred to in terms of what “environmental demands” working there might as "the green mile" as it has a similar look to a high security prison. place on NC. NC831 413 The work was carried out at variable heights. The Job Holder reported that Rs are prepared to agree Cs’ proposed wording in this paragraph, save that there is The work was carried out at variable heights. The maximum some colleagues are scared of heights and did not want to work in EPS. The a dispute as to height of the upper area of EPS, as to which see Rs’ comments on fall height when climbing down the ladder is approximately maximum fall height when climbing down the ladder is approximately 4.5 NC799. metres due to the pick location lay-out, but the total height from the floor in 4.5 metres due to the pick location lay-out. When leaning out the downstairs area of EPS to the highest point of an EPM in the upper area of Rs’ final proposed wording: of the EPM there was an uninterrupted view down to the EPS is 14.5 metres but there is a mezzanine floor. When leaning out of the EPM, Mezzanine level and the ground floor was visible through the The work was carried out at variable heights. The maximum fall height when there is an uninterrupted view from top to bottom and items can fall from the top EPMs and/or racking to the floor in the downstairs aisle below. wire mesh floor of the Mezzanine level. climbing down the ladder is approximately 4.5 metres due to the pick location layout, but the total height from the floor in the downstairs area of EPS to the highest Reasons: See NC799. There is no need to repeat the point of an EPM in the upper area of EPS is approximately 14.5 metres. When See NC799 in relation to the mezzanine floor. information contained in that paragraph. leaning out of the EPM, there is an uninterrupted view from top to bottom and The fact that some other people may not have wanted to do this job is not items can fall from the top EPMs and/or racking to the floor in the downstairs aisle relevant. below. NC852 425.2.1 The Job Holder lifts on average around 5 tonnes per shift at a frequency of The disputes concern what results in breaks from lifting when working on EPS, and The Job Holder lifted on average around 5 tonnes per shift at a around 163 – 188 cases per hour, where cases can weigh up to 20 kg, the whether the pick rate increases the challenge to the JH of applying the correct frequency of around 163 – 188 cases per hour, where cases average is 3.99 kg and the average is 1.1. kg. The Job Holder is picking manual handling techniques. throughout the shift, apart from during break times. There are no In addition could weigh up to 20 kg, the average was 3.99 kg and the to break times, natural breaks from lifting other than occur when the crane Mr Crowdy described the circumstances in which these occur (Crowdy para. 39 10/- smallest was 1.1. kg. The Job Holder was picking throughout the moves from one pick slot to another, or when the Job Holder transfers from 121-122). Otherwise, employees in EPS are expected to pick continuously shift, apart from during break times. In addition to break times, one EPM to another (by walking between the two EPM locations) or when (McDougall paras. 78-79 10/51). Mr Butcher explained in his oral evidence that breaks from lifting occurred when the crane moved from one there is a fault and the Job Holder climbs down the ladder. It is not unusual for when the crane is moving he had to be standing holding both “dead man’s” handles these natural breaks (not including break times) to total 3 or 4 hours of a full pick slot to another (when the Job Holder was standing holding {17/51} and {17/57} and see also Mr Crowdy’s oral evidence on the nature of the shift. There is an expected pick rate of around 176 cases per hour increases both "dead man's handles), when there was a fault and the Job work at {16/171}. the pressure on the Job Holder and increases the risk of not challenge of Holder climbed down the ladder, or when the Job Holder 493 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY Rs’ proposed wording reflects that there are no natural breaks other than in certain applying the correct manual handling skills and correct manual handling skills transferred from one EPM to another (by walking between the specific instances as articulated in the evidence. must be applied. Some products to be picked may be bulky or unwieldy. two EPM locations). There was an expected pick rate of around On the impact of the pick rate targets on manual handling, see Rs’ comments on 176 cases per hour and correct manual handling skills had to be The time spent moving from one slot to another (transport time) and from NC777. The Tribunal will note that this part of the wording is not disputed in applied. Some products to be picked were bulky or unwieldy. moving from one crane to another (transfer time) appear at 4/310. These relation to Mr Butcher. periods of non-working time (added to break times, fault times, idle times and Reasons: We are unsure why this is not the same as, and why Rs’ final proposed wording: system waiting times) make it misleading to suggest that the Job Holder is the parties are not adopting exactly the same approach as to, almost always lifting. Mr Butcher’s JD (LB15541). Be that as it may, if something isn’t The Job Holder lifts on average around 5 tonnes per shift at a frequency of around 163 – 188 cases per hour, where cases can weigh up to 20 kg, the average is 3.99 kg agreed, it isn’t agreed and: we don’t think “natural breaks” is and the smallest is 1.1. kg. The Job Holder is picking throughout the shift, apart from the right phrase; the fact that there were breaks from lifting during break times. There are no natural breaks from lifting, other than when the needs to be reflected; we cannot on the evidence – which crane moves from one pick slot to another (when the Job Holder is required to consists of one day’s figures from (seemingly) outside the stand holding both “dead man’s” handles), or when there is a fault and the Job relevant period for dozens of different people – make a finding Holder climbs down the ladder, or when the Job Holder transfers from one EPM to as to what was normal or typical for NC throughout the relevant another (by walking between the two EPM locations). An expected pick rate of period in terms of time spent not lifting, which is what Cs are around 176 cases per hour increases the pressure on the Job Holder and increases effectively asking us to do. Cs have not referred us to any other the challenge of applying the correct manual handling skills. Some products to be evidence on which we could base such a finding. Cs could picked may be bulky or unwieldy. potentially have cross-examined NC using [4/310 et seq] about what was usual for him, but did not do so. As to the penultimate sentence, NC’s evidence around para 38 of his statement is no more than that, in general terms, “I did feel the pressure of the pick rate”. The evidence does not satisfy us that as a matter of objective fact, the pick rate increased “the pressure on the Job Holder” and “the challenge of applying the correct manual handling skills”. NC856 425.4 There is a low risk as the Job Holder wears gloves of cut type injuries from: Cs contend that the risk of cut-type injuries from broken glass or sharp packaging in There is a risk of cut-type injuries (including Cuts From Broken EPS is “low” because the JH wore gloves. Product, which was rated as a medium low risk in Sainsbury’s The likelihood of risk was assessed as low (see the risk assessment at 4/221) with The evidence does not support the inclusion of that qualification. Indeed, there are 2007 general risk assessment) from: an overall risk of L2. No reportable injuries at RP identified. records of such accidents occurring (Botten para. 108.1 10/267). Mr Crowdy also gave Reasons: the risk assessment does not cover all cut-type injuries evidence that he experienced cuts on EPS, and that the gloves did not protect him and it would be wrong to say – as Cs’ wording suggests – that it from sharp items (Crowdy para. 52 10/125). As Mr Botten explained, the gloves were was rated as any particular risk because (“as”) NC wore gloves. designed for grip, not protection (Botten para. 158 10/277). This was consistent with Gloves were provided to mitigate such risk as there was; they Mr Crowdy’s oral evidence to the Tribunal {16/164}. were not the reason for the rating. There is a risk of cut-type injuries from: NC942 468 How to conduct the pre-use check of the Repack workstation (436) by The dispute concerns the completion of the pre-use checks in Repack. How to conduct the pre-use check of the Repack workstation completing the check list, also requiring knowledge to be able to identify the various problems or faults that could be present (for example, debris on the (436), and entering the results of those checks on a tick box As can be seen at 8/203, there were boxes to tick, but also space for the JH to make workstation, or the water bucket not emptied, or lights not working), in order form which also has room for the Job Holder to briefly describe comments. See Rs’ comments on NC273 above. It was not simply a check list. The to judge and decide on whether it was appropriate and safe to work from that examples given by Cs (if necessary at all) also seek to oversimplify the process. any faults he may identify. This also required knowledge to be workstation; able to identify the various problems or faults that could be present (for example, is the fan in good working order, is the scanner in good working order, is the keyboard in good working 494 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY How to conduct the pre-use check of the Repack workstation (436), and entering the order), in order to decide on whether it was appropriate and This involved a pre-use checklist. A copy of the paper version (since automated) results of those checks on a tick box form which also has room for the Job Holder to safe to work from that workstation; is at 9/238. No judgement was required: if a unit was faulty it would not be used. briefly describe any faults he may identify. This also required knowledge to be able to See Mr Crowdy at T15/137/14 – T15/ 139/14. Reasons: We agree with Rs, except in relation to “judge”, as to identify the various problems or faults that could be present (for example, is the fan which we seek consistency of approach with the Lead Claimants’ in good working order, is the scanner in good working order, is the keyboard in good working order), in order to judge and decide on whether it was appropriate and safe job descriptions, e.g. GA Nights / Ruth Randall paras 1.3.9, 2.5.20 to work from that workstation; & 3.15.8. See also Leonard Butcher JD at LB399. We note that 9/238 and T15/137-139 relates to LLOP and other trucks, not the Repack workstation – something Cs recognise in their submissions on NC1190. NC963 486 IdenƟfying and judging whether product cases could be sent to store, despite Cs dispute the wording in yellow: Deciding whether product cases could be sent to store, despite missing or damaged products, including using the 75% rule; missing or damaged products, using the 75% rule and Linguistic challenge – maintained only if challenges to similar language in considering the condition of the remaining items, e.g. checking missing or damaged products, including using the 75% rule. claimant JDs are maintained. whether there were spillages or broken glass. duplication between judge and identify in this context. Whether to send damaged Reasons: As to “judging”, see NC942. As to “including”, our cases to store, including applying the 75% rule, involved an element of judgment as wording reproduces information from para 26 of NC’s explained in evidence (see Rs’ comments on NC169, NC221, and NC715 above). In statement which shows what needed to be done in addition to those circumstances, Rs’ wording is to be preferred as follows: applying the 75% rule. products, including using the 75% rule. NC965 488 The process to follow for waste disposal (i.e. throw rubbish in the rubbish chute The paragraph concerns the waste disposal process in Repack (not EPS, on which the The process to follow for waste disposal ([442; 454]); and order a new bin when full) (442; 454); JH was cross examined at {16/175-176}). Rs’ proposed wording specifically cross Reasons: We agree with Rs. Cs wording is an over-simplification. references the agreed description of the waste disposal in the JD. As is agreed in those See Mr Crowdy at T15/176. paragraphs, there is more to the process than just throwing rubbish in a chute. However, Rs’ proposed wording avoids the need for any dispute on this paragraph in any case. The process to follow for waste disposal (442; 454); NC1008507.1 He worked as part of a continuous logistics process, where goods were See Rs’ comments on NC296 above, which is a materially identical dispute. Delete whole paragraph. Rs’ final proposed wording: and/or stored, picked in DPS / EPS, and distributed out to retail stores 24 hours He worked as part of a continuous logistics process, where goods were received in appearing multiple times in the same JD. If both sides agree that Inbound at the warehouse, fed into the automatic system, repacked and/or stored, time. If products were not repacked accurately and in a timely manner, this this is helpful, the paragraph should be identical to NC296, for picked in DPS / EPS, and distributed out to retail stores 24 hours per day, 7 days per potentially impacted on the ability to pick the products and the rest of the the reasons given in relation to NC296. week (apart from Christmas Day). The Job Holder's duties formed part of the process product flow chain. The Job Holder did not know precisely what impact his performance had on the depot’s performance day to day, but he was aware in required to fulfil store orders accurately and on time. If products were not repacked a general sense of the impact of performance on product flow. accurately and in a timely manner, this impacted on the ability to pick the products and the rest of the product flow chain. 495 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY NC1009

507.2 The Job Holder was aware that there was an expectaƟon that he would repack The only dispute on this paragraph concerns whether it is accurate to describe the The Job Holder was aware there was an expectation that he a certain number of cases per hour. The number varied slight each year, but the target rate on repack as “challenging”. would repack a certain number of cases per hour. The number Job Holder’s gross target (i.e. target for actual cases picked/repacked per hour) was in the region of 880 cases per hour each year in the Relevant Period. This varied slight each year, but the Job Holder’s gross target (i.e. On this, see Lock paras. 28-30 10/9 -10; Crowdy para. 46 10/123-124; Meakes para. was a challenging target and required the Job Holder to pick at a consistent 23 10/19; and Ozog para. 43 10/108. In oral evidence Mr Ozog told the Tribunal that target for actual cases picked/repacked per hour) was in the pace. he sometimes met the reduced target and sometimes did not {17/11}. Mr Butcher region of 880 cases per hour each year in the Relevant Period. described himself as “working at pace”, recognising that that the flow of products This required the Job Holder to pick at a consistent pace. There should be no references to a “challenging rate”. See NC297 above. impacted on that {17/34}. See also Mr McDougall’s evidence about the number of Reasons: See NC297. people he had on PIPs at any time {16/113-114}. The evidence supports the description of the target as challenging. The Job Holder was aware that there was an expectation that he would repack a certain number of cases per hour. The number varied slight each year, but the Job Holder’s gross target (i.e. target for actual cases picked/repacked per hour) was in the region of 880 cases per hour each year in the Relevant Period. This was a challenging target and required the Job Holder to pick at a consistent pace. NC1016 510 The Job Holder had to remember to conduct a visual inspecƟon of the work The only dispute on this paragraph is highlighted in yellow below: The Job Holder had to remember to conduct a visual inspecƟon staƟon to ensure it was safe to operate. The Job Holder was required to concentrate and maintain visual aƩenƟon for approximately two minutes to of the work staƟon to ensure it was safe to operate. He had to The Job Holder had to remember to conduct a visual inspecƟon of the work staƟon to ensure that all checks were completed properly. The Job Holder had to idenƟfy pay aƩenƟon for approximately two minutes to ensure that all ensure it was safe to operate. The Job Holder was required to concentrate and use his judgment as to whether there was a fault. maintain visual aƩenƟon for approximately two minutes to ensure that all checks were checks were completed properly. He had to decide whether completed properly. The Job Holder had to use his judgment as to whether there was there was a fault. This was a two minute exercise intended to idenƟfy whether, for example, the Ea fault. Reasons: Broadly, we agree with Cs. As to “concentrate and stop buƩon was free from damage and workstaƟon was clear of debris and the It is diﬃcult to understand how Cs suggest the task of inspecƟng the workstaƟon could maintain visual aƩenƟon”, this is largely a semanƟc dispute. Our lights were working, see the example at [8/155] and Mr Crowdy’s evidence at be done without concentraƟng upon it. Rs’ wording is to be preferred as set out in T15/97 – 98. It required no judgement. wording is a fair descripƟon of what was involved in italics above with the highlighted word included. straighƞorward English. As to “judg[e]ment”, see NC942. NC1019 513 The Job Holder had to concentrate and pay aƩenƟon when carrying out a pick Cs again suggest that the JH did not concentrate when picking products in repack. See The Job Holder had to pay attention when carrying out a pick from a “normal” pallet to ensure pick accuracy in terms of quanƟty. If he did Rs’ comments on NC1018 above. from a “normal” pallet to ensure pick accuracy in terms of not do so, the tote was likely to be overheight or overweight, it would not be accepted by the system and would require the Job Holder to pull it back and quantity. If he did not do so, the tote was likely to be overheight recƟfy the problem. This aﬀected his pick rate. or overweight, it would not be accepted by the system and The Job Holder had to concentrate and pay attention when carrying out a pick from would require the Job Holder to pull it back and rectify the a "normal" pallet to ensure pick accuracy in terms of quantity. If he did not do so, the Linguistic challenge as the respondents are using two terms to describe a single matter – maintained only if challenges to similar language in claimant JDs are problem. This affected his pick rate. tote was likely to be overheight or overweight, it would not be accepted by the system maintained. and would require the Job Holder to pull it back and rectify the problem. This affected Reasons: As for NC1016. his pick rate. NC1025 519 The Job Holder had to remember and apply the correct manual handling Cs dispute that applying the correct manual handling techniques was made more The Job Holder had to remember and apply the correct manual techniques when lifting products and totes and when stacking a tote, to difficult for the JH by him having the pressure of meeting an expected hourly pick handling techniques when lifting products and totes and when prevent injury. This was made more difficult by the pressure of the expected rate. See Rs’ comments on NC777 above. hourly pick rate, and also by the increased fatigue towards the end of a shift. stacking a tote, to prevent injury. This was made more difficult Rs’ final proposed wording: by the expected hourly pick rate, and also by the increased The words “the pressure of” add nothing other than a subjecƟve overlay upon fatigue towards the end of a shift. the facts themselves. See NC777 above. when picking from the pick location and when stacking and restacking a roll cage, to Reasons: As for NC777. 496 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY prevent injury. This was made more difficult by the pressure of the expected hourly pick rate, and also by increased faƟgue towards the end of a shiŌ. NC1026 520 The Job Holder had to remember to conduct a visual inspection of the pallet The dispute concerns inspecting a pallet for broken glass before handling the The Job Holder had to conduct a visual inspection of the pallet before handling the products, to ensure there was no broken glass. This product. Clearly the JH had to concentrate whilst doing this. before handling the products, to ensure there was no broken required a short burst of concentration . Rs’ final proposed wording: glass. It is entirely artificial to describe looking in each pallet as remembering to look The Job Holder concentrated whilst conducting a visual inspection of the pallet Reasons: We agree with Cs. Rs’ wording is embellished. Rs’ in each pallet and then concentrating while looking in the pallet. before handling the products, to ensure there was no broken glass. approach here contrasts with its approach to the Lead Claimants’ JDs, in relation to which it objected to the kind of wording it is proposing here. NC1085 542.6 There is a low risk of cut type injuries (although gloves are worn) from: This paragraph concerns the risks of cut in repack. Cs wish to refer to the picking There was a risk of cut-type injuries (including Cuts From gloves worn. See Rs’ comments on NC856. See also Botten para. 111 10/268. The Broken Product, which was rated as a medium low risk in See above at NC856. The likelihood of risk was assessed as low (see the risk qualification is not material to the risk of cuts and should not be included. Sainsbury’s 2007 general risk assessment) from: assessment at 4/221) with an overall risk of L2. No reportable injuries at RP Rs’ final propose wording: identified. Reasons: See NC856. There is a risk of cut type injuries from: NC1190 593.3 how to conduct the pre-use visual check of the LLOP (using a check list), also Cs dispute the wording in yellow: how to conduct the pre-use visual check of the LLOP, also requiring knowledge to be able to idenƟfy the various problems or faults that could be present, in order to judge and decide on whether the truck was safe requiring knowledge to be able to identify the various problems how to conduct the pre-use tick box visual check of the LLOP, also requiring to use and to comply with relevant SWOPs; or faults that could be present, in order to decide on whether knowledge to be able to identify the various problems or faults that could be present, in order to judge and decide on whether the truck was safe to use and to the truck was safe to use and to comply with relevant SWOPs; comply with relevant SWOPs; This involved a pre-use checklist. A copy of the paper version (since Reasons: “using a check list” adds nothing of substance, except automated) is at 9/238. No judgement was required: if a LLOP was faulty it In line with Rs’ submissions on the Lead Claimants, they recognise a degree of in so far as Cs seek to suggest that the pre-use visual check of would not be used. See Mr Crowdy at T15/137 – 138. duplication between judge and decide in this context. If the Tribunal accepts Rs’ the LLOP was a pure tick-box exercise, which we don’t think it submissions on the approach to the Lead Claimants, Rs’ accept the deletion of was. See also NC942. As to “judge”, also see NC942. “judge and” from this paragraph will follow, decide being the more accurate descriptor. NC1269

622.1 He worked as part of a continuous logistics process, where goods were See Rs’ comments on NC296 above, which is a materially identical dispute. Delete whole paragraph. Rs’ final proposed wording: and/or stored, picked in DPS / EPS, and distributed out to retail stores 24 hours He worked as part of a continuous logistics process, where goods were received in appearing multiple times in the same JD. If both sides agree that Inbound at the warehouse, fed into the automatic system, repacked and/or stored, time. If cages were not marshalled accurately and in a timely manner, this this is helpful, the paragraph should be identical to NC296, for picked, and distributed out to retail stores 24 hours per day, 7 days per week (apart potentially impacted on the depot’s ability to deliver store orders in a timely the reasons given in relation to NC296. from Christmas Day). The Job Holder's duties formed part of the process required to manner or until the stock was reordered The Job Holder did not know precisely what impact his performance had on the depot’s performance day to day, but fulfil store orders accurately and on time. If cages were not marshalled accurately and he was aware in a general sense of the impact on product flow. in a timely manner, this impacted on the depot's ability to deliver store orders in a timely manner or at all. NC1270

622.2 The Job Holder was aware that there was an expectaƟon that he would The only dispute concerns whether the expectation in marshalling was challenging. The Job Holder was aware there was an expectation that he marshal a certain number of DUs per hour and that this was required whilst sƟll ensuring he was working safely. The number varied slightly each year, but would marshall a certain number of DUs per hour whilst still As to whether the expectation was challenging, this is supported by the evidence was in the region of 32-35 DUs per hour each year in the Relevant Period. This ensuring he was working safely. The number varied slightly before the Tribunal. The JH addressed it himself (Crowdy paras. 54-55 10/125, see was a challenging expectaƟon and required the Job Holder to work at a also Butcher paras. 48-49 10/90). Mr Crowdy gave oral evidence that you would each year, but was in the region of 32-35 DUs per hour each 497 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY definitely be spoken to if you had not marshalled enough, and that there was not year in the Relevant Period. This required the Job Holder to much leeway even though it was not his main work area {16/180}. Mr Meakes gave work at a consistent pace. There should be no references to challenging targets for the reasons set out evidence to similar effect from a management perspective (Meakes paras. 71-73 above. The records do not suggest that this work was carried out at a Reasons: As for NC297. 10/31). Messrs Meakes and Lock confirmed that colleagues would be spoken to consistent pace. See 4/330 about their rate of work whilst logged in to marshalling {16/32-37}, {16/72}, {16/74- 75}, and {16/77}. The Job Holder was aware that there was an expectation that he would marshall a certain number of DUs per hour whilst still ensuring he was working safely. The number varied slightly each year, but was in the region of 32-35 DUs per hour each year in the Relevant Period. This was a challenging expectation and required the Job Holder to work at a consistent pace. NC1282 625 The Job Holder had to concentrate, pay visual aƩenƟon to, and follow the Rs are willing to agree Cs’ proposed wording, save that it is factually accurate to state, The Job Holder had to pay attention to, and follow the instrucƟons on the scan gun to ensure he marshalled cages to the correct as Rs propose, that taking DUs to the wrong marshalling lane impacts upon the JH’s instructions on, the scan gun to ensure he marshalled cages to marshalling lanes. This required the Job Holder to maintain focus when looking ability to reach the marshalling expectation. It is self-evident that it will take longer if at the scan gun and the marshalling lanes. If the Job Holder made a mistake the correct marshalling lanes. This required him to maintain time is spent going to the wrong lane, but in any case, Mr Meakes confirmed this in and marshalled roll cages into the incorrect marshalling lane, there was a risk focus when looking at the scan gun and the marshalling lanes. his evidence (Meakes para. 72 10/31). The JH also referred to time being wasted in that products were sent to the incorrect store and that would be traced back If he made a mistake and marshalled roll cages into the this regard in his oral evidence {16/181-182}. to him. However, the scan gun should alert the Job Holder to the fact that the cage is in the wrong marshalling lane when he scans the barcode on the incorrect marshalling lane, the scan gun should have alerted Rs’ final proposed wording: marshalling lane. Going to the wrong marshalling lane, and parƟcularly him to the fact that the cage was in the wrong marshalling lane dropping oﬀ a DU there, aﬀected the Job Holder’s ability to reach the expected The Job Holder had to pay visual attention to, and follow, the instructions on the scan when he scanned the barcode on the marshalling lane. shiŌ target. gun to ensure he marshalled cages to the correct marshalling lanes. This required the Reasons: As to “concentrate and pay visual attention to”, see Job Holder to maintain focus when looking at the scan gun and the marshalling lanes. Mr Crowdy accepted that a DU could not realisƟcally be put into the wrong lane: NC1016. As to wrong lanes, we agree with Cs. At [T15/181-182], If the Job Holder made a mistake and Marshalled roll cages into the incorrect see T15/181/5-25 as you have to scan the cages and would be told “Wrong NC was insistent that going to the wrong lane didn’t happen in marshalling lane, the scan gun should alert the Job Holder to the fact that the cage is Lane”. practice and the reference to something slowing him down in the wrong marshalling lane when he scans the barcode on the marshalling lane. Going to the wrong marshalling lane, and particularly dropping off a DU there, cannot have been “Going to the wrong marshalling lane … and … affected the Job Holder’s ability to reach the expected shift target. dropping off a DU there”, as suggested by Rs. NC1325 643 When carrying out marshalling duƟes, the temperature is someƟmes hot in Cs object to the inclusion of Mr Crowdy’s evidence about the working environment When carrying out marshalling duties, the temperature was hot summer and very someƟmes cold in the winter. The Job Holder wears a hat, a in the winter months (see Crowdy para. 66 10/128) (highlighted below). The in summer and cold in the winter. The Job Holder wore a hat, a sweatshirt, a jumper, a ﬂeece jacket, two pairs of gloves and two pairs of socks wording makes it clear that it reflects Mr Crowdy’s words, and that was his evidence in winter. The Job Holder stated that his feet were sƟll “freezing” and that it sweatshirt, a jumper, a fleece jacket, two pairs of gloves and to the Tribunal. The wording should be included. felt to him that it was colder inside the warehouse than outside of it in two pairs of socks in winter. It was not possible for the Job winter. It was not possible for the Job Holder to warm up because he was On how frequently it is hot and cold, see Rs’ comments on NC365 above and Holder to warm up because he was standing still on the LLOP standing sƟll on the LLOP for the majority of the day and not moving around. Crowdy para. 66. Again, the same wording as to temperature (save for the for the majority of the day and not moving around. The LLOP The LLOP is an open vehicle and there is therefore a breeze hiƫng the Job highlighted part below) has been agreed in the JD of Mr Butcher and it is unclear Holder when the LLOP is driven (at speeds of no more than 12km per was an open vehicle and there was therefore a breeze hitting why the position would differ in respect of the JH. hour). AddiƟonally, the dock doors where the lorries back up to for loading the Job Holder when the LLOP was driven (at speeds of no more were open on-and-oﬀ during the day, which brought in cold and wind. On some Rs’ final proposed wording: than 12km per hour). Additionally, the dock doors where the days some dock the doors remained open all day, as roll cages were stored outside and brought into the warehouse through the dock doors, bringing in lorries backed up to for loading were open on-and-off during When carrying out marshalling duƟes, the temperature is oŌen warm or hot in cold weather. the day, which brought in cold and wind. On some days some summer and cool or cold in the winter. The Job Holder wears a hat, a sweat shirt, a jumper, a ﬂeece jacket, two pairs of gloves and two pairs of socks in winter. The Job dock the doors remained open all day, as roll cages were stored These suggesƟons limit the entry to factual maƩers rather than generalisaƟons outside and brought into the warehouse through the dock Holder stated that his feet were sƟll “freezing” and that it felt to him that it was colder or comment. inside the warehouse than outside of it in winter. It was not possible for the Job doors, bringing in cold weather. Holder to warm up because he was standing sƟll on the LLOP for the majority of the Reasons: See NC365 and NC367. day and not moving around. The LLOP is an open vehicle and there is therefore a 498 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. NOEL CROWDY breeze hiƫng the Job Holder when the LLOP is driven (at speeds of no more than 12km per hour). AddiƟonally, the dock doors where the lorries back up to for loading were open on-and-oﬀ during the day, which brought in cold and wind. On some days, some dock the doors remained open all day, as roll cages were stored outside and brought into the warehouse through the dock doors, bringing in cold weather. NC1361 664 Following the initial training, familiarisation training is also needed if makes Cs object to the highlighted wording: Following the initial training, familiarisation training was also or models are changed. In addition, for safety reasons and due to the complexity of operating the MHE, refresher training is required for each MHE needed if makes or models changed. In addition, for safety Following the initial training, familiarisation training is also needed if makes or as detailed below. reasons, refresher training was required for each MHE as models are changed. In addition, for safety reasons and due to the complexity of operating the MHE, refresher training is required for each MHE as detailed below. detailed below. Evaluative. Mr Hart’s clear evidence is that the rationale for the fresher training was for reasons Reasons: We agree with Cs. Rs want us to make a finding that of both safety and the complexity of operating the MHE, and that Rs increased the something was particularly complex and Mr Hart’s / Rs’ frequency of it for those reasons (Hart para. 35 10/67). subjective perception that it was does not establish that as a The highlighted wording should be included accordingly. matter of objective fact. 499 of 548 LEONARD BUTCHER – DECISION LB36 10.00 10 The Job Holder's performance rate as against targets and/or expectaƟons The dispute relates solely to whether the highlighted word below should be “can” or The Job Holder's performance rate as against targets can be viewed by management at any Ɵme, and if it falls short a Team “will” (Rs’ position is "will" and Cs’ position is "can"): and/or expectations could be viewed by management Leader will usually speak to the Job Holder if he is in the boƩom three to ﬁve for the shiŌ. The Job Holder was unlikely to be spoken to if he missed at any time, and if it fell short a Team Leader would The Job Holder's performance rate as against targets and/or expectaƟons can be viewed his pick rate by a small margin, i.e. 10%. In DPS, EPS and Repack the Job by management at any Ɵme, and if it falls short a Team Leader will/can speak to the Job speak to the Job Holder if he was in the bottom three, Holder’s target was 15% less than the usual target because he did not Holder. Managers usually check performance ﬁgures of warehouse colleagues in DPS, and might speak to him if he was fourth or fifth from normally work in those areas (see paragraphs 592.2, 632 and 850). Repack, EPS and Marshalling every hour and will alert the warehouse colleague if his bottom. Managers usually checked performance Managers usually check performance ﬁgures of warehouse colleagues in pick rate or marshalling rate is low and raise enquiries with the Job Holder about the DPS, Repack, EPS and Marshalling every hour and will alert the warehouse figures of warehouse colleagues (including the Job reason for that. In DPS, Repack and Marshalling such conversaƟons take place in person. colleague if his pick rate or marshalling rate is low and raise enquiries with Holder) in DPS, Repack, EPS and Marshalling every If the warehouse colleague is in an EPS crane, the Team Manager will usually ring the the Job Holder about the reason for that. In DPS, Repack and Marshalling hour and would alert the warehouse colleague if his such conversaƟons take place in person. If the warehouse colleague is in an warehouse colleague in the crane to have the conversaƟon. Such conversaƟons take EPS crane, the Team Manager will usually ring the warehouse colleague in pick rate or marshalling rate was low and raise place daily if required and can lead to the commencement of a formal capability the crane to have the conversaƟon. Such conversaƟons take place daily if enquiries with them about the reason for that. In DPS, process. In addiƟon, the boƩom performers over a rolling six-week reward cycle are required and can lead to the commencement of a formal capability process. Repack and Marshalling such conversations took required to aƩend four meeƟngs with a Team Manager to help coach and develop their Very few, if any, of the Job Holder’s warehouse colleagues were dismissed levels of performance. place in person. If the warehouse colleague was in an for poor performance (as opposed to conduct issues) in the Relevant Period. In addiƟon, the boƩom performers over a rolling six-week reward cycle are EPS crane, the Team Manager would usually ring them There is an abundance of evidence before the Tribunal as to the regularity with which required to aƩend four meeƟngs with a Team Manager to help coach and in the crane to have the conversation. Such management at Rye Park speak to employees who do not meet targets/expectaƟons. develop their levels of performance. The Job Holder did not aƩend any conversations took place daily if required and could For example: Butcher para. 13 (10/79-80), paras. 30-31 (10/84-85), paras. 40-41 (10/88- coaching meeƟngs and was not aware that it was a possibility for “boƩom performers”. lead to the commencement of a formal capability 89), para. 46 (10/89), para. 49 (10/90); Meakes para. 4 (10/14), para. 14 (10/14), paras. 29-30 (10/20), para. 36 (10/23), para. 45 (10/25), paras. 59-62 (10/28-29), paras. 63-67 process. In addition, the bottom performers over a (10/29-30), para. 79 (10/32); McDougall paras. 18-21 (10/39-40), paras. 23-24 (10/40); rolling six-week reward cycle were required to attend It is not accurate to say the Job Holder will usually be spoken to simply if the Crowdy paras. 11-13 (10/114-115), para. 35 (10/120), para. 37 (10/121); and Ozog four meetings with a Team Manager to help coach and rate falls short - the focus was upon those on the shiŌ with the lowest pick paras. 11-13 (10/99-100), para. 31 (10/106), para. 44 (10/109). develop their levels of performance. The JH was never rate: see Mr Lock’s evidence at T15/28/8 – T15/30/25 and Mr Meakes at T15/42/1 – 22. The traﬃc light system did not ﬂag up anyone within 10% of one of the bottom performers, however. That is enƟrely consistent with the oral evidence heard by the Tribunal. Time and again their target: see Mr Meakes at T15/50. both managers and the comparators gave evidence about the expectaƟon that Reasons: The evidence referred to in Cs’ submissions underperformance would result in managerial intervenƟon (for example, {16/24-25}, The addiƟonal wording in yellow relaƟng to the low chance of a dismissal for concerning bottom 3 / bottom 3 to 5 is accurately {16/32-37}, {16/42-43}, {16/51}, {16/64}, {16/67}, {16/69}, {16/77}, {16/112}, {16/165- poor performance is relevant given the reference both in this paragraph and reflected in the above wording. That evidence does 166} {16/172}, {16/180} {17/7-8}, and {17/28}. The overall impression was consistent elsewhere in the JD to performance management processes. not support a finding that people would not be with Mr Lock’s descripƟon of the depot as “an environment of performance In respect of the evidence that there were no dismissals purely for poor spoken to if they missed targets by a small margin – management” {16/28-29} and with Mr McDougall’s evidence that of the 300 people for performance over the RP and that the likelihood of a dismissal for not the witnesses did not say that people would only be whom he was responsible, 15 to 20 would be on a PIP in any one year {16/113-114}. performing to target was very low – Mr Lock conﬁrmed in his evidence that spoken to if they were flagged up on the traffic light It is inaccurate to characterise this, as Cs seek to, as something that managers are he had not dismissed anyone purely for poor performance (T15/20/14 – system. Cs’ proposed sentence about targets: does enƟtled to do, but do not in fact do. In so far as Cs’ concern is that “will” implies a T15/21/7 and T15/23/1-8) and Mr Meakes conﬁrmed at T15/47/1 – T15/48/5 that he was not aware of anyone being dismissed purely for poor not belong in this part of the JD, which is not about conversaƟon is inevitable in any scenario, this can be addressed with language such as performance. Further, the Rs produced no documentary evidence of anyone what the targets were; is adequately set out that used by Mr Meakes at paragraph 14 of his statement: “will likely”. There is no being dismissed purely for poor performance. jusƟﬁcaƟon for Cs’ wording implying this is simply something that might happen. elsewhere. So far as concerns dismissals, Cs are right about the raw numbers, but we think it would be The ﬁnal sentence was understood to have been agreed by DACB in October potentially misleading to include what they propose. based on comments on the draŌ JD made at that Ɵme. In any event, there is Cs seem to be wanting to imply that because no evidence that the JH was ever coached, there was no concept of “boƩom practically no one was dismissed purely for poor performers” in inbound where the JH usually worked and he accepted in performance, performance management was not in 500 of 548 evidence that he was hardly even spoken to about targets in DPS or EPS (let practice as onerous as Rs suggest. However, the low alone being coached): see T16/29 – 32. level of dismissals could be down to a number of things, including: efficient recruitment practices – recruiting as employees those who had proved their metal as agency workers; effective performance management; those who realised they were not capable of meeting performance targets ‘jumping before they were pushed’; consistent poor performance being due in part to conduct issues, and it being simpler to dismiss for misconduct than for poor performance. How much it was due to such things is unquantifiable. Accordingly, the bare fact that practically no one was dismissed purely for poor performance is not useful or meaningful. We have therefore decided it is best to keep this part of the JD as agreed by the parties prior to closing submissions, i.e. without Cs’ wording about dismissals. As to the last sentence, we have not been directed to any evidence about LB’s lack of awareness of the possibility of coaching meetings, but we are content to highlight in the JD the fact that they were not something that ever happened to him. LB37 11.00 11 In respect of the DPS, Repack and EPS, the Job Holder and his colleagues are The dispute concerns solely how the JH would be made aware of his work rate in DPS, In respect of the DPS, Repack and EPS, the Job Holder able to view their performance figures throughout the working day. These Repack and EPS being low. Rs’ position is that the JH might check the paper copies of and his colleagues were able to view their are details of their performance against their daily pick target as a work rates placed on the wall, but that he also knew a manager would speak to him if percentage. During the Relevant Period, Team Leaders printed out paper performance figures throughout the working day. his work rate was low. copies which they typically placed on the wall around three times per shift. These were details of their performance against their All work colleagues could view the performance print-outs, which were That is again consistent with the evidence. daily pick target as a percentage. During the Relevant located in the relevant areas. Each work colleague is identified by a number. The Job Holder would sometimes check the print-out at the end of the shift Period, Team Leaders printed out paper copies which Mr Butcher explained that he would sometimes look at his targets {17/30-32}. (particularly when working in EPS), although he knew that the Team they typically placed on the wall around three times Cs’ refusal to accept wording to the effect that the JH knew a manager would speak to Manager would might speak to him if his pick rate was low. The Job Holder per shift. All work colleagues could view the him about a low work rate is not supported by the evidence. In addition to Rs’ was sometimes spoken to when working in Repack for not hitting his target performance print-outs, which were located in the comments on LB36 (and the references to the oral evidence therein), see for example: but it was rare for him to be spoken to when working in DPS (see paragraph 508 below) and he was not spoken to about not hitting targets when working relevant areas. Each work colleague was identified by Butcher paras. 30-31 (10/84-85), paras. 40-41 (10/88-89), para. 46 (10/89); Meakes in EPS (see paragraph 631 below). a number. The Job Holder would sometimes check the para. 4 (10/14), para. 14 (10/14), paras. 29-30 (10/20), para. 36 (10/23), para. 45 (10/25); McDougall paras. 18-21 (10/39-40), paras. 23-24 (10/40); Crowdy paras. 11-13 print-out at the end of the shift (particularly when See submissions for LB1121 / para 508 and for LB1322 /para 631. working in EPS), although he knew that the Team (10/114-115), para. 37 (10/121); and Ozog para. 31 (10/106), para. 44 (10/109). Manager would or might speak to him if his pick rate In so far as there is a dispute as to whether the paper printouts were typically put up, was low, in accordance with paragraph 10 above. the evidence is again clear: for example, Butcher para. 31 (10/85), para. 40 (10/88), para. 46 (10/89); Lock para. 24 (10/8); Meakes paras. 22-23 (10/18-19), para. 41 Reasons: As for LB36 above. As to Cs’ proposed last (10/23), para. 46 (10/26); and McDougall para. 14 (10/39). This was not challenged sentence, this is adequately dealt with elsewhere. during oral evidence. In respect of the DPS, Repack and EPS, the Job Holder and his colleagues are able to view their performance figures throughout the working day. These are details of their 501 of 548 performance against their daily pick target as a percentage. During the Relevant Period, Team Leaders printed out paper copies which they typically placed on the wall around three times per shift. All work colleagues could view the performance print-outs, which were located in the relevant areas. Each work colleague is identified by a number. The Job Holder would sometimes check the print-out at the end of the shift (particularly when working in EPS), although he knew that the Team Manager would speak to him if his pick rate was low. LB74 29.00 29 He is usually deployed in Inbound. There are several different types of work The dispute concerns whether the JH only moved between tasks in Inbound when told He was usually deployed in Inbound. There were in Inbound, as described in more detail below. The Job Holder may be to by a manager (as Cs argue) or whether he had autonomy to decide to do that on his several different types of work in Inbound, as directed to do just one or two types of Inbound work during a shift in own initiative if needed. Inbound, or the full range, depending on the number of staff who are described in more detail below. The Job Holder might rostered to work. The Job Holder also has a certain autonomy during his shift, The witness evidence was clear that the JH did not need to be told to move by a be directed to do just one or two types of Inbound so that he moves between tasks on his own initiative depending on where he manager. He would also assist colleagues on his own initiative (if, for example, the work during a shift in Inbound, or the full range, considers he is most needed to ensure product flow. For example, if the Job depot floor was becoming congested with pallets and so assistance was needed with depending on the number of staff who were rostered Holder is dealing with receipts and the depot floor becomes congested with infeeding). pallets, he may move to Infeeding to assist his colleagues to clear the floor to work. The Job Holder also had a certain autonomy to ensure there is sufficient space to unload additional pallets. It was equally See, for instance, the evidence and further examples at: Butcher para. 7 (10/78), paras. during his shift, so that he moved between tasks on common for a manager to ask the Job Holder to change tasks so as to ensure 14-17 (10/80); Meakes para. 57 (10/28); and McDougall paras. 85-88 (10/52-53). It is his own initiative depending on where he considered also consistent with Mr Ozog’s evidence at paras. 14-17 (10/100-101). This was he was most needed to ensure product flow. For consistent with the oral evidence of both Mr Meakes {16/70} and Mr Butcher {17/35}. See Mr Butcher’s evidence at T16/35/1-18. example, if the Job Holder was dealing with receipts Rs’ final proposed wording: and the depot floor became congested with pallets, he might move to Infeeding to assist his colleagues to He is usually deployed in Inbound. There are several different types of work in Inbound, clear the floor to ensure there was sufficient space to as described in more detail below. The Job Holder may be directed to do just one or unload additional pallets. Sometimes a manager two types of Inbound work during a shift in Inbound, or the full range, depending on the number of staff who are rostered to work. The Job Holder also has a certain would ask the Job Holder to change tasks so as to autonomy during his shift, so that he moves between tasks on his own initiative ensure product flow. depending on where he considers he is most needed to ensure product flow. For Reasons: The Q and A at [T16/35/14-18] - Q. Was example, if the Job Holder is dealing with receipts and the depot floor becomes that more common or less common or did it just congested with pallets, he may move to Infeeding to assist his colleagues to clear the depend if the manager was there? A. Sort of a bit of floor to ensure there is sufficient space to unload additional pallets. each, really, you know, sort of – yes.” (a non-“yes/no” question with three possible answers being answered “yes”) is an inadequate basis for us to make a finding that two things were “equally common”, or any other finding about relative frequency. LB355 162.2 162.2 In recognition of the fact that some loads take longer to deal with than The dispute concerns the extent to which, in unloading/receipts Team Managers In recognition of the fact that some loads took longer others, e.g. because the number of pallets per load varies and because some considered whether or not the JH as an individual, rather than just the team as a whole, to deal with than others, e.g. because the number of load require adjustments to expiry dates and/or re-loading of pallets onto were working at the required pace. the lorry, there was no formal individual target for the Job Holder when pallets per load varied and because some loads dealing with unloading/receipts. However, the Job Holder was aware that See Rs’ comments on LB94 above which address what is essentially the same point. See required adjustments to expiry dates and/or re- Team Managers periodically walked the depot floor, watching the Job Holder also Meakes paras. 56-61 (10/28-29) and para. 63, addressing unloading and receipts loading of pallets onto the lorry, there was no and his colleagues' pace of work. The Job Holder was aware that, if the Team specifically (10/63). individual target for the Job Holder when dealing with Manager considered that the Job Holder was not working at the required pace, this could result in a conversation where the Team Manager would unloading/receipts. However, the Job Holder was Rs recognise that the position is not the same as DPS, EPS etc., hence the reference in question the reasons for the Job Holder's pace. However, as long as the team Rs’ own proposed wording to there being no targets. But Cs’ objection to “if the Team aware that Team Managers periodically walked the as a whole was working quickly enough it was unlikely that any such Manager considered that the Job Holder was not working at the required pace, this depot floor, watching the Job Holder and his questions would be raised of an individual team member. If the Job Holder could result in a conversation where the Team Manager would question the reasons for was asked about his pace and if he explained the load took longer than usual colleagues' pace of work. The Job Holder was aware the Job Holder's pace” is entirely unsupported by the evidence before the Tribunal. for a reason that was not his fault (such as labels not scanning properly, or that, if the Team Manager considered that the Job having to "blind receive"), then this explanation would be accepted. Apart 502 of 548 Rs’ ﬁnal proposed wording: from when the Job Holder was new to the work, the Job Holder was rarely Holder was not working at the required pace, this questioned about his pace of work. could have resulted in a conversation where the Team In recognition of the fact that some loads take longer to deal with than others, e.g. because the number of pallets per load varies and because some load require Manager would question the reasons for the Job In respect of no individual targets see Mr Meakes’ statement at para 56 adjustments to expiry dates and/or re-loading of pallets onto the lorry, there was no [10/28]. Holder's pace. But as long as the team as a whole was target for the Job Holder when dealing with unloading/receipts. However, the Job working quickly enough it was unlikely that any such Holder was aware that Team Managers periodically walked the depot floor, watching In respect of the focus being on the speed of the team as a whole see Mr questions would be raised of an individual team Butcher’s evidence at T16/28/24 – T16/29/2. the Job Holder and his colleagues' pace of work. The Job Holder was aware that, if the member in practice. If the Job Holder explained that Team Manager considered that the Job Holder was not working at the required pace, It is obvious that a reasonable explanation would be accepted – the example the load had taken longer than usual for a reason that this could result in a conversation where the Team Manager would question the given by Mr Butcher in his statement was that he would (hypothetically) be was not his fault (such as labels not scanning properly, reasons for the Job Holder's pace. If the Job Holder explained that the load had taken spoken to if he was hanging around whilst others worked: see para 13 of his or having to "blind receive"), then this explanation longer than usual for a reason that was not his fault (such as labels not scanning statement [10/79]. would generally be accepted and no further action properly, or having to "blind receive"), then this explanation would generally be As also set out in para 13 of his statement, he was not spoken to very often taken. accepted and no further action taken. at all other than when he was new to the work [10/79-80]. Reasons: The penultimate sentence is factually accurate, based on [T16/28-29]. There is no factual dispute on the last sentence; Cs’ suggestion is unnecessarily wordy. LB399 184.4 184.4 The Job Holder was responsible for ensuring that damaged stock or stock The dispute concerns the involvement of the Team Leader in the decision to return whole In respect of stock which he received, the Job Holder with short expiry date was not accepted into the depot. In respect of pallets of goods (e.g. damaged goods, goods with short expiry dates). was responsible for ensuring that damaged stock or damaged stock, he used his judgment and discretion when deciding decided what stock should be accepted and whether to send back a whole pallet or stock with a short expiry date was not accepted into The JH (Butcher para. 20 10/81-82) gave clear evidence that he did not need to ask a individual cases from a pallet. If there were a few damaged pallets the Job manager. His oral evidence was also that he would ask a manager’s view, even about the depot. In respect of damaged stock, he usually Holder would sometimes ask his manager who would then decide what to large volumes, only if he needed to. He said he would make the decision most of the time decided what stock should be accepted and whether do. If he did accept such stock, the stock may not have been capable of being {17/36-37}. to send back one or more whole pallets or individual sold which could have resulted in a financial cost to Sainsbury’s. cases from a pallet. SomeƟmes, depending on the The proposed deletion of the phrase “judgement and discretion” is due to a item, he would ask his manager who would then In respect of stock which he receives, the Job Holder was responsible for ensuring that concern that there is a consistency of approach as between the comparator decide what to do, but most of the time he would damaged stock or stock with a short expiry date was not accepted into the depot. In and lead claimant JDs: see the Cs’ Supplemental skeleton argument. make the decision himself. If he did accept such stock, respect of damaged stock, he used his judgment and discretion when deciding what stock The remaining additional wording in yellow is consistent with Mr Butcher’s the stock might not have been capable of being sold, should be accepted and whether to send back a whole pallet or individual cases from a evidence at T16/36/21 – T16/37/14 – i.e. that he would sometimes ask his pallet. If he intended to send back whole pallets, he could ask a team leader, and the which could have resulted in a financial cost to manager what to do and themanger would then make the decision rather than team leader and the Job Holder would make the decision together. However, the JH Sainsbury’s. the decision being a joint one. This is also consistent with Mr McDougall’s usually took the decision himself. If he did accept such stock, the stock may not have evidence – see T15/109/25 – T15/111/1 – once the manager had all the facts Reasons: We agree with Cs’ that our approach to Lead been capable of being sold which could have resulted in a financial cost to Sainsbury’s. it would then be the manager’s decision to take. Claimants and Comparators should be the same so far as concerns the unnecessary and disputed use of what Rs have (in re Lead Claimants) often described as “tendentious” words and phrases, like “judg[e]ment” and “discretion”, e.g. Amanda Solts 3.5.19. As to the rest of this paragraph, our wording more accurately reflects T16/36-37 than either sides’ wording. LB433 202 202 The following wording has been agreed, save for the part highlighted: The respondents’ wording has been agreed. Apparently agreed. 503 of 548 The depot contains some high risk areas. It is semi-automated and full of moving machinery. Warehouse colleagues are not allowed to interfere with the automation and are not allowed to access the high risk areas, which can be locked and are primarily only accessed by Engineers and Fixers. The warehouse contains multiple sources of danger and hazard. A fatality (of an Engineer) has occurred in an unmanned crane aisle (to which the Job Holder did not have access) where SWOPs were not adhered to. This issue arises multiple times across all three Rye Park comparators. It is included in the List of Disputes only once, as the Tribunal’s determination on the point of principle will resolve it. Cs’ position is that this happened “away from the JH’s workplace” and so should not be included, unless similar incidents are also included in the Lead Claimants’ JDs. In fact, the incident happened in the area in which the JH’s work (within DPS). It did not happen at a different site, or even a different part of the site (in contrast to the position in relation to those who worked at Hams Hall, where Rs have agreed to remove this wording). The purported equivalence with incidents in petrol stations or other stores referenced in the Lead Claimants’ JDs is unsustainable. The highlighted wording should be included, and references to incidents in other stores should not be included in the Lead Claimants’ JDs. LB603 266.2 266.2 If pallets were not infed in a timely manner, this caused congestion on the The disputed paragraph reads: If pallets were not infed in a timely manner, this depot floor, so that no further unloading could be carried out. Where several lorries arrived at the same time, this created additional mental and physical caused congestion on the depot floor, so that no If pallets were not infed in a timely manner, this caused congestion on the depot floor, pressure to clear the floor quickly, whilst at the same time ensuring that the further unloading could be carried out. Where several so that no further unloading could be carried out. Where several lorries arrived at the Counterbalance truck was operated in a safe manner. Congestion on the same time, this created additional mental and physical pressure to clear the floor lorries arrived at the same time, this created depot floor also creates additional hazards and difficulties for all MHE drivers quickly, whilst at the same time ensuring that the Counterbalance truck was operated in additional pressure to clear the floor quickly, whilst at (and pedestrians) as there is then limited room to manoeuvre and reduced a safe manner. Congestion on the depot floor also creates additional hazards and the same time ensuring that the Counterbalance truck visibility. difficulties for all MHE drivers (and pedestrians) as there is then limited room to was operated in a safe manner. Congestion on the manoeuvre and reduced visibility. The words “mental and physical” add nothing meaningful or of substance to depot floor also creates additional hazards and Mr Butcher’s evidence explains the physical pressure of this task (Butcher para. 23 the paragraph. difficulties for all MHE drivers (and pedestrians) as 10/82). It is distinct from mental pressure. This was not addressed during oral evidence. there is then limited room to manoeuvre and reduced Rs’ wording should be preferred. visibility. LB780 356 356 The Job Holder’s responsibiliƟes in the work place under the Health & Safety This paragraph relates to the JH’s understanding of his health and safety The Job Holder’s health and safety responsibilities in At Work Act 1974 and applying this in their day to day work, including their responsibilities. Rs understand Cs’ only objection to be the reference to the specific the work place, including their duty not to endanger duty no not to endanger themselves or others by their acts or omissions, not statute that gives rise to those obligations (the Health and Safety at Work Act 1974). to recklessly interfere with anything provided in the interests of health and themselves or others by their acts or omissions, not to Whilst the statute is referenced in some SWOPs and training materials (e.g., 4/34 and safety, and to work as trained. recklessly interfere with anything provided in the 4/9/309), Rs are content to remove the speciﬁc reference to it. interests of health and safety, and to work as trained. As conﬁrmed both in his interview ([9/683] and in his evidence (T16/37/15 – T16/38/15), Mr Butcher knew the Act existed but did not have knowledge of Reasons: The only remaining difference of any what it contained. The Job Holder’s statutory health and safety responsibiliƟes in the work place, including substance is as to the word “statutory”, and we agree their duty not to endanger themselves or others by their acts or omissions, not to with Cs’ submissions in relation to this. recklessly interfere with anything provided in the interests of health and safety, and to work as trained. 504 of 548 LB803 372 372 The Job Holder had to use cognitive skills to appropriately would prioritise Cs contend that prioritising time between the PCP and the Inverter was simply a matter The Job Holder decided whether to work on the PCP his time between the PCP and the Inverter by working on the PCP to keep it of staying on the PCP unless something needed inverting (i.e. this did not require or on the Inverter, and moved between the two, clear whilst keeping an eye out for congestion around the Inverter. thought or consideration). Approximately 125 pallets arrived at the PCP each shift (250 pallets between depending on how many pallets there were waiting at the two PCPs) and he inverted an estimated 60 pallets per shift. The Job However, as Mr McDougall explained in his evidence, ensuring the PCP remained clear the PCP and how many pallets there were waiting to Holder had to have the ability to juggle and prioritise this work in a busy and whilst avoiding a build of pallets needing to be split or inverted required more than just be inverted. Approximately 125 pallets arrived at the noisy warehouse environment to ensure that the PCP was kept clear with less leaving the PCP every time a pallet needed to be split or inverted. Colleagues had to PCP each shift (250 pallets between the two PCPs) and than three queuing pallets whilst also dealing with pallets that needed monitor the workload and get through backlogs whilst keeping the PCP clear Inverting. If more than three pallets were queuing at the PCP, that would he inverted an estimated 60 pallets per shift. The Job (McDougall paras 93-94 10/53-54) (see also Meakes para. 66 10/30 and Ozog para. 22 stop pallets from going into the automated system, cause delays and Holder had to have the ability to juggle and prioritise 10/102). Thus Mr Butcher told the Tribunal that the PCP took priority when it was ultimately affect the depot’s ability to fulfil store orders in a timely manner. this work in a busy and noisy warehouse environment jammed up {17/36}. That is not the same as simply staying by the PCP and then moving to ensure that the PCP was kept clear with less than to the inverter as soon as something needed to be inverted. The JH had to decide what The wording in yellow accurately describes the task as set out at para 93 of three queuing pallets whilst also dealing with pallets to so. Mr McDougall’s statement [10/53-54]. N.B. The Job Holder only worked on that needed inverting. If more than three pallets were PCP2 – see para 34 of the JD [9/33]. The evidence clearly supports Rs’ position. queuing at the PCP, that would stop pallets from going Rs’ final proposed wording: into the automated system, cause delays and ultimately affect the depot's ability to fulfil store The Job Holder had to use cognitive skills to appropriately prioritise his time between the PCP and the Inverter. Approximately 125 pallets arrived at the PCP each shift (250 orders in a timely manner. pallets between the two PCPs) and he inverted an estimated 60 pallets per shift. The Reasons: Our first sentence accurately and fully Job Holder had to have the ability to juggle and prioritise this work in a busy and noisy reflects Mr McDougall’s substantially unchallenged warehouse environment to ensure that the PCP was kept clear with less than three evidence; Cs’ proposed wording that is highlighted queuing pallets whilst also dealing with pallets that needed Inverting. If more than does not. As above, we wish to be broadly consistent three pallets were queuing at the PCP, that would stop pallets from going into the in our approach to the Lead Claimants and the automated system, cause delays and ultimately affect the depot's ability to fulfil store orders in a timely manner. Comparators. With that in mind, “cognitive skills” in this context is either meaningless (in that it just means ‘used his brain’, something required to do anything at all) or it is inappropriately evaluative. Cf. (e.g.) Sales Assistant / Linda Davies 3.37.1. LB1052 474.3 474.3 There was no target for the Job Holder when dealing with loading empty The dispute concerns the pace of the JH’s work when loading empty pallets or sorting There was no target for the Job Holder when dealing pallets, or empty pallet sorƟng. However, the Job Holder was aware that empty pallets. The paragraph is agreed save that Cs propose adding a final sentence: with loading empty pallets, or empty pallet sorting. Team Managers periodically watched the Job Holder and his colleagues’ pace The Job Holder stated that he could not work faster on Loading for health and safety of work, The Job Holder was aware that, if the Team Manager considered However, the Job Holder was aware that Team reasons. that the Job Holder was not working at the required pace, this could result in Managers periodically watched the Job Holder and his a conversaƟon where the Team Manager would quesƟon the reasons for the See Rs’ comments on LB955. Clearly the JH could not work faster than was safely colleagues’ pace of work. The Job Holder was aware Job Holder’s pace. However, as long as the team as a whole was working possible (the same is true of essentially any task in any job). But the proposed wording that, if the Team Manager considered that the Job quickly enough it was unlikely that any such conversations would take place implies that he was always already working as fast as was safely possible and that a with an individual team member. If the Job Holder consistently worked below Holder was not working at the required pace, this manager would never speak to someone about the pace of their work. To the contrary, the expected pace rate and did not improve with support and coaching, this could result in a conversation where the Team see Meakes para. 67 10/30 and para. 72 10/31; Butcher para. 25 10/83; and Ozog para. could lead to formal acƟon. Apart from when the Job Holder was new to the Manager would question the reasons for the Job work, the Job Holder was rarely questioned about his pace of work and he 13 10/100, as well as Rs’ comments on LB36, LB94 and LB355 above. Clearly there never attended any coaching meetings. Further, very few, if any, of the Job Holder’s pace. But as long as the team as a whole was might be scope for working more efficiently without hindering safety. Holder’s warehouse colleagues were dismissed for poor performance (as working quickly enough it was unlikely that any such Rs’ final proposed wording: opposed to conduct issues) in the Relevant Period. questions would be raised of an individual team There was no target for the Job Holder when dealing with loading empty pallets, or empty member in practice. If the Job Holder consistently pallet sorƟng. However, the Job Holder was aware that Team Managers periodically See the submissions at LB36 and LB355. worked below the expected pace rate and did not watched the Job Holder and his colleagues’ pace of work. The Job Holder was aware that, improve with support and coaching, this could lead to if the Team Manager considered that the Job Holder was not working at the required formal action. However, the Job Holder’s pace, this could result in a conversaƟon where the Team Manager would quesƟon the 505 of 548 reasons for the Job Holder’s pace. If the Job Holder consistently worked below the performance was such that he never received expected pace rate and did not improve with support and coaching, this could lead to coaching or formal action. formal acƟon. There were, however, limits on how quickly the Job Holder could work for Reasons: See LB36 and LB355 above. Rs’ proposed health and safety reasons. final sentence is an unnecessary statement of the obvious. LB1097 494 494 There was very limited opportunity for the Job Holder to “chat” to colleagues The dispute concerns whether the opportunity for social interaction during a shift doing There was in practice very limited opportunity for the during his shift. The Job Holder was largely sitting enclosed in the diesel yard work was “limited” or “very limited”. Job Holder to “chat” or socially interact with Counterbalance truck but he was able to say ‘hello’ to people as they went past. colleagues when working during his shift, but he was Mr Butcher explained why there was virtually no opportunity for social interaction when doing that work (Butcher para. 61 10/93, see also McDougall para. 38 10/43). In able to say or gesture ‘hello’ to people as they went oral evidence Mr Butcher said that it was difficult to talk – he gave the example of doing The additional wording in yellow is consistent with Mr Butcher’s evidence at past. The Job Holder was largely sitting enclosed in the so to give an important message {17/39-40}. Rs’ position is to be preferred. T16/40/3 – T16/41/8. diesel Counterbalance truck but he was able to say ‘hello’ to people as they went past. Yard work gave very limited opportunity for social interaction. The Job Holder was Reasons: What Rs mean by “yard work” is not entirely largely sitting enclosed in the diesel Counterbalance truck. clear and (based on the parts of the evidence both sides refer to in submissions) this paragraph seems to be about more than what we would understand by that term. Cs seem to have accepted “very” limited, but have changed “social interaction” to “chat”. Our wording reflects the fact that, in practice, when working, LB’s social interactions with colleagues would be pretty much limited to saying or gesturing “hello”. LB1121 508 508 The pick rate target in DPS was around 298 – 337 cases per hour during the The paragraph concerns the target pick rates in DPS. The pick rate target in DPS was around 298 – 337 cases Relevant Period. The pick rate target varied slightly, up or down, from year to year. In addition, the pick rate target varied from aisle to aisle depending per hour during the Relevant Period. The pick rate on the goods picked in the aisle in question (to take into account whether target varied slightly, up or down, from year to year. The pick rate target in DPS was around 298 – 337 cases per hour during the Relevant they were light goods or heavy goods). A piece of paper was pinned up at the In addition, the pick rate target varied from aisle to Period. The pick rate target varied slightly, up or down, from year to year. In addition, end of each aisle to notify the warehouse colleagues of the target for that aisle depending on the goods picked in the aisle in the pick rate target varied from aisle to aisle depending on the goods picked in the aisle aisle. As the Job Holder is not normally based in DPS, he is given 15% leeway in respect of the usual pick rate target of 298 - 337 cases per hour. There are question (to take into account whether they were in question (to take into account whether they were light goods or heavy goods). A piece no natural breaks although there can be periods of time when the Job Holder light goods or heavy goods). A piece of paper was of paper was pinned up at the end of each aisle to notify the warehouse colleagues of is waiting for products to come through( “asset waiting time”) as well as time the target for that aisle. As the Job Holder is not normally based in DPS, he is given 15% pinned up at the end of each aisle to notify the spent transferring between workstations, which can total about 2 hours or leeway in respect of the usual pick rate target of 298 - 337 cases per hour. There are no warehouse colleagues of the target for that aisle. As more including the JH’s break time across a full shift. The Job Holder has been natural breaks. The Job Holder has been told to work faster, although this was not told to work faster, although this was not expressed by reference to the the Job Holder was not normally based in DPS, he is expressed by reference to the adjusted target rate, and mainly happened when he adjusted target rate, and mainly happened when he started working in the given 15% leeway in respect of the usual pick rate started working in the pick areas. When the Job Holder was more experienced, it was pick areas (which was before the start of the Relevant Period). When the Job target of 298 - 337 cases per hour. There were no Holder was more experienced, it was rare that he was spoken to about his rare that he was spoken to about his pick rate. The Job Holder did not memorise what natural breaks. However, there were times when the pick rate. The Job Holder did not memorise what the target rate was, but the target rate was, but could check this at the end of the aisle and on the performance could check this at the end of the aisle and on the performance sheets that Job Holder would not be picking, for example time sheets that were pinned up on the wall. He would sometimes check the print-out at the were pinned up on the wall. He would sometimes check the print-out at the spent walking between different workstations and end of the shift, although he knew that the Team Manager would speak to him if his end of the shift, although he knew that the Team Manager would speak to time spent waiting for products to come through. The pick rate was low. him if his pick rate was low. Job Holder was told to work faster, although this was The wording is factually accurate in accordance with the evidence before the Tribunal. not expressed by reference to the adjusted target rate, and mainly happened when he started working in the pick areas (which was before the start of the 506 of 548 As to the pick rate for DPS and the variation to it for those transferred into the area, see Relevant Period). When the Job Holder was more In respect of natural breaks see paras 17.5 and 17.6 of Mr Meakes’ statement Lock 14-27 10/6-9 and Meakes paras. 52-54 10/27-28. The position in respect of experienced, it was rare that he was spoken to about [10/16] and his evidence at T15/56 – T15/58/1. The records are at [4/306]. Two hours is typical. his pick rate. The Job Holder did not memorise what As to the communication of target pick rates and discussions about falling short of them the target rate was, but could check this at the end of with managers, see Rs’ comments on LB36 and LB37. In relation to DPS in particular, the aisle and on the performance sheets that were see Meakes paras. 15 to 31 10/15-20, as well as oral evidence consistent with Rs’ pinned up on the wall. He would sometimes check the position at {16/42-43}, {16/96}, {17/7-8} and {17/30}. print-out at the end of the shift, although he knew And the JH himself gave evidence supportive of the wording proposed by Rs (Butcher that the Team Manager would speak to him if his pick paras. 29-33 10/84-85) (see also Crowdy paras. 8-13 10/114-115 and Ozog paras. 29-32 rate was low. 10/105-106). Reasons: Cs’ additional wording suggests that asset waiting time and walking time and transfer time are natural times for breaks, which, manifestly, they aren’t. It is, though, legitimate to highlight the fact that the work was not constant picking and we have done that. What we cannot do on the evidence – which consists of one day’s figures from (seemingly) outside the relevant period for dozens of different people – is make a finding as to what was normal or typical for LB throughout the relevant period in terms of time spent not picking, which is what Cs are effectively asking us to do. Cs have not referred us to any other evidence on which we could base such a finding. Cs could potentially have cross-examined LB using [bundle 4 / p.310 et seq] about what was usual for him, but did not do so. In any event, including LB’s break times alongside e.g. asset waiting time (as Cs do in their wording) would be potentially misleading. Finally, we cannot see what the problem is with highlighting the undisputed fact that most of the time LB was spoken to about his pick rate was outside the LB1126 513 513 The team briefing/deployment sheet in the Inbound area informs the Job The dispute concerns how the JH was told that he would be working on DPS if that was The Job Holder would be informed at the start of the Holder at the start of the shift as to whether he is deployed in DPS for his shift at the start of his shift. Cs’ deletion implies that they do not accept that he was ever shift whether he was being moved to DPS and into and in what aisle. The Job Holder would be informed at the start of the shift placed on DPS at the start of his shift. The JH’s evidence is at Butcher para. 28 (10/84) whether he was being moved to DPS and into which aisle. Before 2018 that which aisle. Before 2018 that information was passed (see also his oral evidence at {17/41}). information was passed on in the daily briefing. He may also be placed in DPS on in the daily briefing. He might also have been during a shift if there is not sufficient work in Inbound, for example where Rs’ final proposed wording: placed in DPS during a shift if there was not sufficient there are delays on the motorway preventing lorries from getting to the warehouse. work in Inbound, for example where there were The team briefing/deployment sheet in the Inbound area informs the Job Holder at the delays on the motorway preventing lorries from start of the shift as to whether he is deployed in DPS for his shift and in what aisle. He may also be placed in DPS during a shift if there is not sufficient work in Inbound, for This para is now consistent with Mr Butcher’s evidence at para 28 of his getting to the warehouse. example where there are delays on the motorway preventing lorries from getting to the statement where he confirms that he does not recall deployment sheets Reasons: Cs’ new wording accurately reflects LB’s warehouse. [10/84]. witness evidence. 507 of 548 LB1174 547 547 Where some items in a case are damaged and there is no leakage, the Job The dispute concerns whether or not the JH uses numeracy skills in order to estimate Where some items in a case were damaged and there Holder will still pick the case into the tote provided that approximately 75% whether 75% of the stock in a case is not damaged. was no leakage, the Job Holder would still pick the of the stock in the pack is undamaged. The Job Holder estimates whether approximately 75% of the items are undamaged and uses basic numeracy case into the tote provided that approximately 75% of The position is explained by Mr McDougall at paras. 40-42. Mr Crowdy gives an skills to do so. explanation of it in practice at paras. 23-26 (10/117-118) and see also his oral evidence the stock in the pack was undamaged. The Job Holder at {16/147}. estimated whether approximately 75% of the items Because it was an approximation only basic numeracy skills were required are undamaged and used numeracy skills to do so. Rs’ proposed wording reflects that whether the JH counts each item or estimates (as may vary from case to case), that uses a numeracy skill (in that it is difficult to see how else Reasons: We have kept “numeracy skills” because it is an estimate is made). agreed. Assessing whether the skills involved were Rs’ final proposed wording: basic or otherwise is an evaluative exercise. Where some items in a case are damaged and there is no leakage, the Job Holder will still pick the case into the tote provided that approximately 75% of the stock in the pack is undamaged. The Job Holder estimates whether approximately 75% of the items are undamaged and uses numeracy skills to do so. LB1186 553 553 How to conduct the pre-use check of the DPS workstaƟon and the aisle (515), Cs dispute the wording in yellow: How to conduct the pre-use check of the DPS also requiring knowledge to be able to idenƟfy the various problems or faults that could be present, in order to judge and decide on whether it was workstation and the aisle (515), also requiring How to conduct the pre-use check of the DPS workstaƟon and the aisle (515), also appropriate and safe to pick in the aisle; knowledge to be able to identify the various problems requiring knowledge to be able to idenƟfy the various problems or faults that could be present, in order to judge and decide on whether it was appropriate and safe to pick in or faults that could be present, in order to decide on the aisle; It had been understood that the Rs had agreed to remove the reference to whether it was appropriate and safe to pick in the judgement – in any event this would not have required any judgement – if aisle; the workstaƟon was faulty then it would not be used. See by analogy Mr duplication between judge and decide in this context. Whether it was appropriate and Reasons: This is consistent with our approach to the Crowdy’s evidence in respect of the check list for MHE at T15/137/14 – T15/ safe to pick in an aisle self-evidently involves an element of judgment. In those 139/14 Lead Claimants’ job descriptions, e.g. GA Nights / circumstances, Rs’ wording is to be preferred as follows: Ruth Randall paras 1.3.9, 2.5.20 & 3.15.8. Cf. LB399 How to conduct the pre-use check of the DPS workstaƟon and the aisle (515), also requiring knowledge to be able to idenƟfy the various problems or faults that could be present, in order to judge whether it was appropriate and safe to pick in the aisle; LB1201 568 568 Identifying and judging whether product cases could be sent to store, despite Cs dispute the wording in yellow: Deciding whether product cases could be sent to missing or damaged products, including using the 75% rule in paragraph 546. store, despite missing or damaged products, including Identifying and judging whether product cases could be sent to store, despite missing or Linguistic challenge – maintained only if challenges to similar language in using the 75% rule in paragraph 546. damaged products, including using the 75% rule in paragraph 546. claimant JDs are maintained: see para 5 of the supplemental skeleton In line with Rs’ submissions on the Lead Claimants, they recognise a degree of argument. Reasons: As for LB1186. duplication between judge and identify in this context. Whether to send damaged cases to store, including applying the 75% rule, involved an element of judgment as explained in evidence (see Rs’ comments on LB1174 above). In those circumstances, Rs’ wording is to be preferred as follows: products, including using the 75% rule in paragraph 546. LB1211 578 578 The Job Holder’s responsibilities in the work place under the Health & Safety See Rs’ comments on LB780 in relaƟon to a materially idenƟcal dispute. The Job Holder’s health and safety responsibiliƟes in At Work Act 1974 and applying this in their day to day work, including their duty not to endanger themselves or others by their acts or omissions, not to the work place, including their duty not to endanger recklessly interfere with anything provided in the interests of health and themselves or others by their acts or omissions, not to The Job Holder’s statutory health and safety responsibiliƟes in the work place, including safety, and to work as trained. recklessly interfere with anything provided in the their duty not to endanger themselves or others by their acts or omissions, not to interests of health and safety, and to work as trained. See the submissions for LB780. 508 of 548 recklessly interfere with anything provided in the interests of health and safety, and to Reasons: As for LB780. work as trained. LB1250 592.2 592.2 The Job Holder was aware that there was an expectation that he would pick The paragraph, which Cs propose deleting in its entirety, records the JH’s awareness The Job Holder was aware there was an expectation a certain number of cases per hour. The number varied slight each year, but and knowledge that he was subject to pick targets whilst working on DPS. that he would pick a certain number of cases per hour. the Job Holder's gross pick rate target (i.e. target for actual cases picked per hour) was in the region of 298 - 337 336 cases per hour each year in the The number varied slightly each year, but the gross The notion (which would be required to justify the blanket deletion for which Cs Relevant Period. As the Job Holder was not normally based in DPS, he was content) that the JH had no awareness that he was subject to a pick target is not pick rate target (i.e. target for actual cases picked per given 15% leeway of the usual target. This was a challenging target and supported by the evidence. hour) was in the region of 298 - 337 cases per hour required the Job Holder to pick at a consistently fast pace. each year in the Relevant Period. As the Job Holder The evidence on which Rs rely is set out at LB1121 above. This was plainly a matter of was not normally based in DPS, he was given 15% which the JH was cognisant. Rs’ proposed wording is consistent with the evidence There should be no references to a “challenging rate”. This is entirely before the Tribunal. leeway of the usual target. This target required the subjective. Even if an individual Job Holder found it challenging to work at this speed such a subjective comment is not relevant. A job is not more Job Holder to pick at a consistent pace. In so far as Cs take issue with the target being a challenging one to meet, and which valuable because an individual employee finds it difficult, nor less valuable required the JH to work at a consistent pace, see Lock paras. 28-30 10/9 -10; Meakes Reasons: We agree with Cs about “challenging rate”. because an individual (Mr Crowdy’s super picker) finds it easy. para. 23 10/19; Butcher para. 30 10/84-85, para. 33 10/85; Crowdy paras. 10-12 (As an aside, we note that Cs used that word in a 10/114; Ozog para. 32 10/106. Mr Crowdy described having to “power walk” to meet comparable context in some of the Lead Claimants’ his target and “almost running” to get taken off the PIP {16/149} and {16/155}. Mr JDs, e.g. Amanda Solts 3.6.34). Whether or not LB, Butcher and Mr Ozog both gave examples of not meeting the even reduced targets subjectively, found it difficult to pick at a particular {17/7-8} and {17/30}. As Mr Lock explained, to be met it was necessary to work at a rate does not translate into a finding of objective fact consistent pace and not waste time {16/26-27}. See also Mr McDougall’s evidence we could make that might conceivably be relevant to about the number of people he had on PIPs at any time {16/113-114}. The description the equal value question. To put it in general terms, of the targets as challenging is clearly supported by the evidence. how good or bad someone is at their job cannot affect its value; what matters is what the job entails. The Job Holder was aware that there was an expectation that he would pick a certain number of cases per hour. The number varied slightly each year, but the gross pick rate target (i.e. target for actual cases picked per hour) was in the region of 298 - 337 cases per hour each year in the Relevant Period. As the Job Holder was not normally based in DPS, he was given 15% leeway of the usual target. This was a challenging target and required the Job Holder to pick at a consistent pace. LB1251 592.3 592.3 The Job Holder was aware that Team Managers and Shift Managers had Cs propose deleting the whole paragraph, thereby disputing that the JH knew that The Job Holder was aware that Team Managers and access to real-time data of the Job Holder’s pick rate and that this was managers had access to real time data of his pick rate and could speak to him if he was Shift Managers had access to real-time data of the Job reviewed regularly throughout the shift and, if the Team Manager not working to the required pace. considered that the Job Holder was not working at the required pace, this Holder's pick rate and that this was reviewed regularly could result in a conversation where the Team Manager would question the That is not consistent with the evidence before the Tribunal. See Rs’ comments on throughout the shift and, if the Team Manager reasons for the Job Holder’s pace. As set out at paragraph 508, in the LB36, LB37, LB1121, and LB1250. See the JH’s evidence on this specific point at Butcher considered that the Job Holder was not working at the Relevant Period it was rare for the Job Holder to be spoken to about his pick para. 31 10/85 and his oral evidence about being challenged, particularly when he required pace, this could result in a conversation started on DPS {17/30}. where the Team Manager would question the reasons Rs’ final proposed wording: This addition simply clarifies the frequency/likelihood of Mr Butcher being for the Job Holder's pace of work. spoken to about his pick rate. The Job Holder was aware that Team Managers and Shift Managers had access to real- Reasons: Cs addition is unnecessary; the relevant time data of the Job Holder's pick rate and that this was reviewed regularly throughout information is already set out at LB1121. the shift and, if the Team Manager considered that the Job Holder was not working at the required pace, this could result in a conversation where the Team Manager would question the reasons for the Job Holder's pace of work. LB1264 602.0 602 The Job Holder had to use his judgement as to how many items he could carry This paragraph addresses the JH’s decision about how many items to carry back to the The Job Holder had to use his judgement as to how back to the tote, e.g. if already carrying items and walking past another light, tote when working on DPS. Rs’ contend that the JH took into account weight, shape, and many items he could carry back to the tote, e.g. if he needed to decide whether he could safely carry further items without material, as well as considering the time and effort needed for a possible repeat journey dropping them and without negatively impacting on his manual handling 509 of 548 if he did not take all the products needed in one go. Cs portray the decision as one based technique. He had to balance this with the time and effort it took to make already carrying items and walking past another light, on weight alone. another journey, which would also affect his pick rate. In determining he needed to decide whether he could safely carry whether he could safely carry further items, he considered the items' weight, The JH explains the process at Butcher para. 37 10/86-87. That is consistent with Rs’ further items without dropping them and without shape and material. proposed wording. negatively impacting on his manual handling technique. In determining whether he could safely Rs’ final proposed wording: Mr Butcher was not balancing safety and pick rate. It is accepted that Mr carry further items, he considered the items' weight, Butcher needed to decide/determine whether he could safely carry more but The Job Holder had to use his judgment as to how many items he could safely carry back if it was not safe to do so then he simply could not take that item. shape and material. to the tote, e.g. if already carrying items and walking past another light, he needed to decide whether he could safely carry further items without dropping them and without Reasons: We agree with Cs. We allow “judgement” negatively impacting on his manual handling technique. He had to balance this with the because it is agreed. time and effort it took to make another journey, which would also affect his pick rate. In determining whether he could safely carry further items, he considered the items' weight, shape and material . LB1322 632 632 The pick rate target in EPS was around 163 – 188 cases per hour during the The paragraph concerns the target pick rates in EPS. The pick rate target in EPS was around 163 – 188 cases Relevant Period. The pick rate target varied slightly, up or down, from year to year. In addition, the pick rate target varied from aisle to aisle depending per hour during the Relevant Period. The pick rate on the goods picked in the aisle in question (to take into account whether target varied slightly, up or down, from year to year. The pick rate target in EPS was around 163 – 188 cases per hour during the Relevant they were light goods or heavy goods). A piece of paper was pinned up at the In addition, the pick rate target varied from aisle to Period. The pick rate target varied slightly, up or down, from year to year. In addition, end of each aisle to notify the warehouse colleagues of the target for that aisle depending on the goods picked in the aisle in the pick rate target varied from aisle to aisle depending on the goods picked in the aisle aisle. As the Job Holder was not normally based in EPS, he was given 15% leeway in respect of the usual pick target of 163 - 188 cases per hour. In the question (to take into account whether they were in question (to take into account whether they were light goods or heavy goods). A piece Relevant Period the Job Holder was not spoken to about falling below the light goods or heavy goods). A piece of paper was of paper was pinned up at the end of each aisle to notify the warehouse colleagues of target. the target for that aisle. As the Job Holder was not normally based in EPS, he was given pinned up at the end of each aisle to notify the 15% leeway in respect of the usual pick target of 163 - 188 cases per hour. warehouse colleagues of the target for that aisle. As See para 40 of Mr Butcher’s statement at [10/87-88]. the Job Holder was not normally based in EPS, he was The wording is factually accurate in accordance with the evidence before the Tribunal. given 15% leeway in respect of the usual pick target of As to the pick rate for EPS and the variation to it for those transferred into the area, see 163 - 188 cases per hour. In the Relevant Period the Lock 14-27 10/6-9 and Meakes paras. 52-54 10/27-28. The position in respect of Job Holder was not spoken to by managers about falling below the target. As to the communication of target pick rates and discussions about falling short of them Reasons: Cs’ additional sentence accords with LB’s with managers, see LB36 and LB37. In relation to EPS in particular, see Meakes paras. 32-41 10/20-23 and the JH’s oral evidence at {17/31-32}. statement, para 40 And the JH himself gave evidence supportive of the wording proposed by Rs (Butcher paras. 39-42 10/87-88) (see also Crowdy paras. 37-39 10/121-122) (and {16/171-172} and {17/31-32}). LB1427 697 697 Identifying and judging whether individual stock items could be sent to store, Cs dispute the wording in yellow: Deciding whether individual stock items could be sent using the 75% rule (664). to store, using the 75% rule (664). Identifying and judging whether individual stock items could be sent to store, using the 75% rule in paragraph 546. Linguistic challenge – maintained only if challenges to similar language in Reasons: Consistent with the Lead Claimants’ JDs. Cf. claimant JDs are maintained: see para 5 of the supplemental skeleton LB399. argument duplication between identify and judge in this context. Whether to send damaged cases to store by applying the 75% rule involved an element of judgment (see Rs’ comments on LB1174 above). In those circumstances, Rs’ wording is to be preferred as follows: Judging whether individual stock items could be sent to store, using the 75% rule in paragraph 546. 510 of 548 LB1476 725.1 725.1 He worked as part of a continuous logistics process, where goods were The dispute concerns whether wording should be added because, as Cs contend, the JH He worked as part of a continuous logistics process, received in Inbound at the warehouse, fed into the automatic system, did not know what impact his pick rate had on the depot’s performance. where goods were received in Inbound at the repacked and/or stored, picked in EPS (or DPS), and distributed out to retail stores 24 hours per day, 7 days per week (apart from Christmas Day). The Job warehouse, fed into the automatic system, repacked This is addressed by the JH at Butcher para. 42 (10/88) where he explains this was Holder’s duties formed part of the process required to fulfil store orders discussed during huddles (see also McDougall para. 31 10/42). The evidence does not and/or stored, picked in EPS (or DPS), and distributed accurately and on time. If products were not picked accurately and in a timely support Cs’ position. This was not addressed in oral evidence. out to retail stores 24 hours per day, 7 days per week manner, this potentially impacted on the rest of the product flow chain. The Job Holder did not know precisely what the pace of the work in Inbound had (apart from Christmas Day). The Job Holder's duties on the depot’s performance day to day, but he was aware in a general sense formed part of the process required to fulfil store He worked as part of a continuous logistics process, where goods were received in of the impact of pick rates on product flow. orders accurately and on time. If products were not Inbound at the warehouse, fed into the automatic system, repacked and/or stored, picked accurately and in a timely manner, this picked in EPS (or DPS), and distributed out to retail stores 24 hours per day, 7 days per The word “potentially” clarifies that there would not necessarily be an impact potentially impacted on the rest of the product flow week (apart from Christmas Day). The Job Holder's duties formed part of the process on product flow for all instances of a target not being met in Inbound. The chain. The Job Holder did not know precisely what the required to fulfil store orders accurately and on time. If products were not picked fact that Mr Butcher had a general rather than a specific understanding of accurately and in a timely manner, this potentially impacted on the rest of the product pace of the work in Inbound had on the depot’s the impact on product flow is set out at paras 7-8 of his statement [10/77- flow chain. performance day to day, but he was aware in a 78]. general sense of the impact of pick rates on product flow, e.g. he was aware that if he and others did not pick to expectations, this could result in products not getting to the stores on time. Reasons: There is no real factual dispute here. Cs additional wording is possibly unnecessary (how important it is being for the experts and stage 3), but is factually accurate and we have added an example taken almost word-for-word from LB’s statement. LB1488 732 732 The Job Holder had to remember and apply the correct manual handling Cs dispute that applying the correct manual handling techniques was made more difficult The Job Holder had to remember and apply the techniques when picking from the pick location and when stacking and for the JH by him having the pressure of meeting an expected hourly pick rate. correct manual handling techniques when picking restacking a roll cage, to prevent injury. This was made more difficult by the pressure of the expected hourly pick rate. from the pick location and when stacking and The JH’s evidence is that it was (Butcher para. 44 10/89). See also Botten paras. 71-73 10/261 to the effect that this was acknowledged within Rs, and also 4/145 where the restacking a roll cage, to prevent injury. pressure to maintain pick rates is referred to in the manual handling risk assessment. The Mr Butcher’ evidence at para 44 of his statement [10/89] is that the fact of a Reasons: We are not satisfied on the evidence that it point is not about balancing speed against safety (as put to the JH at {17/44} but about pick rate or the “need to meet my expectations” made it more difficult to apply was objectively “made more difficult …” etc, purely the pressure to work quickly adding to the difficulty of using the correct manual handling the preferred manual handling techniques but he then goes on to say that he that that was how LB felt; and how he felt about it does techniques. Mr Ozog’s oral evidence was that some people did not lift properly because always followed those techniques / procedures. Given the fact that Mr Butcher always followed those procedures, that he met his pick rate (that was reduced not belong in the JD. This is a similar issue to that arising of the pressure to meet the target {17/21-22}. by 15% from the standard rate) and was hardly ever spoken to be his manager in relation to “challenging rate” in LB1250. (see para 30 of his statement [10.84-85]), there is no support for it being in The Job Holder had to remember and apply the correct manual handling techniques any sense “difficult” to follow the correct procedures due to the pick rate or when picking from the pick location and when stacking and restacking a roll cage, to otherwise. prevent injury. This was made more difficult by the pressure of the expected hourly pick LB1510 747.1 747.1 The Job Holder was responsible for handling stock items correctly in keeping At para. 68.2 (10/73), Mr Hart confirms, having liaised with the manufacturer, that the The Job Holder was responsible for handling stock with his training throughout the shift so as not to drop products which could highest point of the cab in EPS is 14.5 metres from the ground. Rs’ propose amending items correctly in keeping with his training have caused damage to them which in turn had a financial impact on the JD to ensure it is factually accurate in this regard. Sainsbury's. If product cases are not dealt with correctly, it may result in the throughout the shift so as not to drop products which packaging breaking open and individual products falling out. For example, There is no other extant dispute in respect of this paragraph. could have caused damage to them which in turn had the bottom of a box could fall out. If that happens in EPS, smaller sized a financial impact on Sainsbury's. If product cases 511 of 548 Rs’ final proposed wording: products will fall through the gap between the racking and the EPM (20 - 25 were not dealt with correctly, it might have resulted cm gap), fall from height (up to approx 14.5 9 metres) and not be retrievable. in the packaging breaking open and individual training throughout the shift so as not to drop products which could have caused products falling out. For example, the bottom of a box Items would not fall from the top of the top ﬂoor to the boƩom of the ground damage to them which in turn had a financial impact on Sainsbury's. If product cases ﬂoor. See Mr Crowdy’s evidence at T15/172/14 – T15/173/6. could fall out. If that happened in EPS, smaller sized are not dealt with correctly, it may result in the packaging breaking open and individual products would fall through the gap between the products falling out. For example, the bottom of a box could fall out. If that happens in racking and the EPM (20 - 25 cm gap), fall from height EPS, smaller sized products will fall through the gap between the racking and the EPM and not be retrievable. The overall height of the (20 - 25 cm gap), fall from height (up to approx 14.5 metres) and not be retrievable. racking, from ground level to the top of the racking, was 17.15 m. Just under 9 m from the top of the racking and just over 8 m from the ground floor was a Mezzanine floor made from corrugated steel mesh. Liquids from a broken container could fall all the way from top to bottom (i.e. 17 m approx) and items could fall from the top to the Mezzanine floor (approx. 9 m), break / burst and spill their contents from there onto the ground floor. Reasons: Both sides’ wording and submissions are inaccurate. 14.5m from ground level is the floor of the cab, not the “highest point of the cab”: para 68.2 of Mr Hart’s statement. Our wording accurately reflects the contents of that statement and [T15/106] and [T15/172-173]. LB1536 755 755 The work was carried out at height. The Job Holder is not scared of heights Again, the only outstanding dispute is as to height, as to which see Rs’ comments on The work was carried out at height. The Job Holder but was nervous when he ﬁrst started working in EPS. The maximum fall LB1510. was not scared of heights but was nervous when he height when climbing down the ladder is approximately 4.5 metres due to the pick locaƟon lay-out, but the total height from the ﬂoor in the downstairs first started working in EPS. The maximum fall height area of EPS to the highest point of an EPM in the upper area of EPS is when climbing down the ladder was approximately The work was carried out at height. The Job Holder is not scared of heights but was approximately 14.5 9 metres. When leaning out of the EPM, there is an 4.5 metres due to the pick location lay-out. When nervous when he first started working in EPS. The maximum fall height when climbing uninterrupted view from top to boƩom and items can fall from the top EPMs and/or racking to the ﬂoor in the downstairs aisle below (which is the leaning out of the EPM there was an uninterrupted down the ladder is approximately 4.5 metres due to the pick location lay-out, but the mezzanine level). view down to the Mezzanine level and the ground total height from the floor in the downstairs area of EPS to the highest point of an EPM in the upper area of EPS is approximately 14.5 metres. When leaning out of the EPM, floor was visible through the wire mesh floor of the Items would not fall from the top of the top ﬂoor to the boƩom of the ground there is an uninterrupted view from top to bottom and items can fall from the top EPMs Mezzanine level. ﬂoor: see Mr Crowdy’s evidence at T15/172/14 – T15/173/6 and Mr and/or racking to the floor in the downstairs aisle below. McDougall’s evidence at T15/106. Reasons: See LB1510. There is no need to repeat the information contained in that paragraph. LB15541 767.2.1 There is a high frequency of lifting heavy products throughout the shift, apart The dispute concerns the extent to which there are natural breaks whilst working in There was a high frequency of lifting heavy products from during break times . There are no In addition to break times, natural EPS. throughout the shift, apart from during break times. breaks from lifting, other occur when the crane moves from one pick slot to another, or when the Job Holder transfers from one EPM to another (by In addition to break times, breaks from lifting Mr Crowdy described the circumstances in which these occur (Crowdy para. 39 10/- walking between the two EPM locations)or when there is a fault and the Job 121-122). Otherwise, employees in EPS are expected to pick continuously (McDougall occurred when the crane moved from one pick slot to Holder climbs down the ladder. It is not unusual for these natural breaks (not paras. 78-79 10/51). Mr Butcher explained in his oral evidence that when the crane is another (when the Job Holder was standing holding including break times) to total 3 or 4 hours of a full shift. There is an expected pick rate of around 176 cases per hour increases the pressure on the Job both "dead man's handles), when there was a fault 512 of 548 moving he had to be standing holding both "dead man's" handles {17/51} and {17/57} Holder and increases the risk of not applying the correct manual handling and the Job Holder climbed down the ladder, or when and see also Mr Crowdy’s oral evidence on the nature of the work at {16/171}. skills. Some products to be picked may be bulky or unwieldy. the Job Holder transferred from one EPM to another Rs’ proposed wording reflects that there are no natural breaks other than in certain (by walking between the two EPM locations). An The time spent moving from one slot to another (transport time) and from specific instances as articulated in the evidence. moving from one crane to another (transfer time) appear at [4/310]. These expected pick rate of around 176 cases per hour periods of non-working time (added to break times, fault times, idle times and increased the pressure on the Job Holder and system waiting times) make it misleading to suggest that the Job Holder is increased the risk of not applying the correct manual There is a high frequency of lifting heavy products throughout the shift, apart from almost always lifting. handling skills. Some products to be picked were during break times. There are no natural breaks from lifting, other when the crane The reference to transferring from one EPM to another is taken from the Rs’ bulky or unwieldy. moves from one pick slot to another (when the Job Holder is standing holding both proposed wording for Mr Crowdy’s JD at NC852. "dead man's handles), when there is a fault and the Job Holder climbs down the ladder, Reasons: As for LB1121: we don’t think “natural or when the Job Holder transfers from one EPM to another (by walking between the breaks” is the right phrase; the fact that there were two EPM locations). An expected pick rate of around 176 cases per hour increases the breaks from lifting needs to be reflected; we cannot pressure on the Job Holder and increases the risk of not applying the correct manual on the evidence – which consists of one day’s figures handling skills. Some products to be picked may be bulky or unwieldy. from (seemingly) outside the relevant period for dozens of different people – make a finding as to what was normal or typical for LB throughout the relevant period in terms of time spent not lifting, which is what Cs are effectively asking us to do. Cs have not referred us to any other evidence on which we could base such a finding. Cs could potentially have crossexamined LB using [4/310 et seq] about what was usual for him, but did not do so. LB1691 850.2 850.2 The Job Holder was aware that there was an expectation that he would The paragraph concerns the target pick rates in Repack. The Job Holder was aware that there was an repack a certain number of cases per hour. The number varied slight each year, but the Job Holder's gross target (i.e. target for actual cases expectation that he would repack a certain number of picked/repacked per hour) was in the region of 880 cases per hour each year cases per hour. The number varied slightly each year, The Job Holder was aware that there was an expectation that he would repack a certain in the Relevant Period. As the Job Holder was not normally based in Repack, but the Job Holder's gross target (i.e. target for actual number of cases per hour. The number varied slight each year, but the gross target (i.e. he was given 15% leeway in respect of the usual target. This was a cases picked/repacked per hour) was in the region of target for actual cases picked/repacked per hour) was in the region of 880 cases per challenging target and required the Job Holder to pick at a consistent fast pace. 880 cases per hour each year in the Relevant Period. hour each year in the Relevant Period. As the Job Holder was not normally based in As the Job Holder was not normally based in Repack, Repack, he was given 15% leeway in respect of the usual target. This was a challenging target and required the Job Holder to pick at a consistent fast pace. The wording is There should be no references to a “challenging rate” or “target”. This is he was given 15% leeway in respect of the usual factually accurate in accordance with the evidence before the Tribunal. entirely subjective. Even if an individual Job Holder found it challenging to target. To meet this target required the Job Holder to work at this speed such a subjective comment is not relevant. A job is not pick at a consistent pace. As to the pick rate for Repack and the variation to it for those transferred into the area, more valuable because an individual employee finds it difficult, nor less see Lock 14-27 10/6-9; Meakes paras. 42-46 10/23-26 and paras. 52-54 10/27-28; and Reasons: As for LB1250. valuable because an individual finds it easy. In any event, Mr Butcher’s Botten para. 110 10/268. The position in respect of colleagues transferring in is also evidence was that he was never told to “get a move on” in Repack i.e. he was supported by documentary evidence (4/444). As Mr Meakes explained, someone may never told he wasn’t working fast enough. This suggests that meeting the be spoken to even if working there for only 30 minutes {16/67}. target was not an issue for him: see T16/32/24 – T16/33/14. As to the communication of target pick rates and discussions about falling short of them with managers, see LB36 and LB37. In relation to Repack in particular, see Meakes paras. 42-46 10/23-26. As Mr Meakes explained, someone may be spoken to even if working there for only 30 minutes {16/67}. And the JH himself gave evidence supportive of the wording proposed by Rs (Butcher paras. 45-47 10/89-90) (see also Crowdy para. 46 10/123 and Ozog para. 43 10/108). 513 of 548 In so far as Cs take issue with the target being a challenging one to meet, and which required the JH to work at a consistent pace, see Lock paras. 28-30 10/9 -10; Meakes para. 23 10/19; Crowdy para. 46 10/123; and Ozog para. 43 10/108. In oral evidence Mr Ozog told the Tribunal that he sometimes met the reduced target and sometimes did not {17/11}. Mr Butcher described himself as “working at pace” recognising that that the flow of products impacted on that {17/34}. See also Mr McDougall’s evidence about the number of people he had on PIPs at any time {16/113-114}. The evidence supports the description of the target as challenging. LB1707 862 862 The Job Holder had to remember and apply the correct manual handling Cs dispute that applying the correct manual handling techniques was made more difficult The Job Holder had to remember and apply the techniques when lifting products and totes and when stacking a tote, to for the JH by him having the pressure of meeting an expected hourly pick rate. correct manual handling techniques when lifting prevent injury. This was made more difficult by the pressure of the expected hourly pick rate, and also by the increased fatigue towards the end of a shift. products and totes and when stacking a tote, to See Rs’ comments at LB1488 above. See further the JH’s evidence specific to repack at Butcher para. 47 10/90, which supports Rs’ position. prevent injury. There was an added expectation to See the submissions for LB1691 above. work at pace and he felt this made following manual In his interview with LD, Mr Butcher said it was not harder to remember handling techniques more difficult when he was manual handling techniques at the end of a shiŌ (see [9/701] towards the working on his own; but he nevertheless worked as when lifting products and totes and when stacking a tote, to prevent injury. This was boƩom of the page). In any event, Mr Butcher rarely did full shiŌs in Repack: trained. made more difficult by the pressure of the expected hourly pick rate, and also by the see para 776. increased fatigue towards the end of a shift. Reasons: Our wording accurately reflects LB’s statement para 47. See also the reasons for LB1488. LB1840 931.3 931.3 how to conduct the pre-use tick box visual check of the LLOP, also requiring Cs dispute the wording in yellow: how to conduct the pre-use tick box visual check of knowledge to be able to identify the various problems or faults that could be present, in order to judge and decide on whether the truck was safe to use the LLOP, also requiring knowledge to be able to how to conduct the pre-use tick box visual check of the LLOP, also requiring knowledge and to comply with relevant SWOPs; identify the various problems or faults that could be to be able to identify the various problems or faults that could be present, in order to judge and decide on whether the truck was safe to use and to comply with relevant present, in order to decide on whether the truck was SWOPs; No judgement was required: if a LLOP was faulty it would not be used. See safe to use and to comply with relevant SWOPs; Mr Crowdy’s evidence at T15/137/14 – T15/ 139/14 In line with Rs’ submissions on the Lead Claimants, they recognise a degree of Reasons: See LB399. duplication between judge and decide in this context. Assessing if the truck was safe to use clearly required an element of judgement (see Botten paras. 48-54 10/256-257 and Hart paras. 51-56 10/70-71). In those circumstances, Rs’ wording is to be preferred as how to conduct the pre-use tick box visual check of the LLOP, also requiring knowledge to be able to identify the various problems or faults that could be present, in order to judge whether the truck was safe to use and to comply with relevant SWOPs; LB1916 961.2 961.2 The Job Holder was aware that there was an expectation that he would As to the number of DUs Rs expected the JH to marshall, see Rs’ comments on LB1763. The Job Holder was aware that there was an marshall a certain number of DUs per hour and that this was required whilst still ensuring he was working safely. The number varied slightly each year, expectation that he would marshall a certain number As to whether the expectation was challenging and required work at a consistent pace, but was in the region of 32-35 DUs per hour each year in the Relevant Period. of DUs per hour and that this was required whilst still this is supported by the evidence before the Tribunal. The JH addressed it himself This was a challenging expectation and required the Job Holder to work at a (Butcher paras. 48-49 10/90, see also Crowdy paras. 54-55 10/125). Mr Crowdy gave ensuring he was working safely. The number varied oral evidence that you would definitely be spoken to if you had not marshalled enough, slightly each year, but was in the region of 32-35 DUs and that there was not much leeway {16/180}. Mr Meakes gave evidence to similar per hour each year in the Relevant Period. This There should be no references to a “challenging rate” or “expectation”. This effect from a management perspective (Meakes paras. 71-73 10/31). Messrs Meakes is entirely subjective. Even if an individual Job Holder found it challenging to required the Job Holder to work at a consistent pace. and Lock confirmed that colleagues would be spoken to about their rate of work whilst work at this speed such a subjective comment is not relevant. A job is not more valuable because an individual employee finds it difficult, nor less valuable Reasons: As for LB1250. logged in to marshalling {16/32-37}, {16/72}, {16/74-75}, and {16/77}. because an individual finds it easy. In any event, Mr Butcher did not know what Rs’ final proposed wording: the target was and does not suggest he was in fact spoken to about not meeting that target: see paras 48-49 of his statement [10/90]. 514 of 548 The Job Holder was aware that there was an expectation that he would marshall a certain number of DUs per hour and that this was required whilst still ensuring he was working safely. The number varied slightly each year, but was in the region of 32-35 DUs per hour each year in the Relevant Period. This was a challenging expectation and required the Job Holder to work at a consistent pace. LB1966 981.7 980.7 Cleaning up spills and debris on the floor on a continuous on occasional basis The dispute concerns the extent of the JH’s responsibility for cleaning up spills and Picking up debris from the floor when he saw it (about (about once a month) and very rarely cleaning up spill, to prevent slips, trips debris to prevent accidents. once a month) and, very rarely, cleaning up spills, to and falls. Mr McDougall’s evidence was that employees were told repeatedly in briefings to stop prevent slips, trips and falls. and undertake such tasks if they encountered debris (McDougall para. 29 10/41). This is See T16/48/21 – T16/49/15. Reasons: Accurately reflects [T16/48-49]. consistent with the JH’s evidence about his work in marshalling (Butcher para. 56 10/92) (note the oral evidence the JH gave related to DPS, not marshalling, at {17/48- 49}). Cleaning up spills and debris on the floor on a continuous basis, to prevent slips, trips and falls. LB2000 1003 1003 Following the initial training, familiarisation training is also needed if makes Cs object to the highlighted wording: Following the initial training, familiarisation training or models are changed. In addition, for safety reasons and due to the complexity of operating the MHE, refresher training is required for each MHE was also needed if makes or models changed. In Following the initial training, familiarisation training is also needed if makes or models as detailed below. addition, for safety reasons, refresher training was are changed. In addition, for safety reasons and due to the complexity of operating the MHE, refresher training is required for each MHE as detailed below. required for each MHE as detailed below. This is evaluative. Mr Hart’s clear evidence is that the rationale for the fresher training was for reasons of Reasons: We agree with Cs. Rs want us to make a both safety and the complexity of operating the MHE, and that Rs increased the finding that something was particularly complex and frequency of it for those reasons (Hart para. 35 10/67). Mr Hart’s / Rs’ subjective perception that it was does The highlighted wording should be included accordingly. not establish that as a matter of objective fact. Cf. LB1250. 515 of 548 Ian Barnes – Decision Cs’ proposed text is inaccurate. The JH has been spoken to about unaccounted time on a If the Job Holder was not logged into a Chute at any time, this was identifiable If the Job Holder was not logged into a Chute at any number of occasions throughout the relevant period, several of which have resulted in because he was not logged into the PkMS system. If the Job Holder was not logged time, this was identifiable because he was not logged disciplinary action, and at least three of which have led to formal verbal warnings. See the into the PkMS system, and was not otherwise on an official break (at the beginning into the PkMS system. If the Job Holder was not logged following references from bundle 6:

(i) p.405 (verbal warning on 17 December 2015);

(ii) and end of which he also had to swipe his card), that would be “unaccounted time” into the PkMS system, and was not otherwise on an p.407 (informal disciplinary action in June 2016);

(iii) p.409 (verbal warning on 4 January and the Job Holder could have faced disciplinary action for it. If the JH had a genuine official break (at the beginning and end of which he also 2017);

(iv) p.411 (verbal warning on 4 January 2018); and

(v) p. 413 (informal disciplinary reason for the unaccounted time (for example, because he had been required to clean had to swipe his card), that would be “unaccounted action on 10 April 2019). a spillage) this would be accepted by management. The Job Holder has been spoken time” and the Job Holder could have faced disciplinary to informally for such issues on about three occasions during the Relevant Period, but Rs therefore propose: action for it. If the JH had a genuine reason for the his explanations were accepted as being reasonable. The Job Holder has been the “If the Job Holder was not logged into a Chute at any time, this was identifiable because he subject of disciplinary action for such issues several times during the Relevant Period unaccounted time (for example, because he had been IB164 81 was not logged into the PkMS system. If the Job Holder was not logged into the PkMS and some have resulted in sanctions. The Job Holder has been issued with formal required to clean a spillage) this would be accepted by system, and was not otherwise on an official break (at the beginning and end of which he verbal warnings which have been documented on his personnel file. management. The Job Holder was spoken to informally also had to swipe his card), that would be “unaccounted time” and the Job Holder could have about such issues on three occasions during the faced disciplinary action for it. If the JH had a genuine reason for the unaccounted time (for Relevant Period, but his explanations were accepted as example, because he had been required to clean a spillage) this would be accepted by The JH was spoken to about unaccounted time but the evidence is that his explanations reasonable. management and the JH has never faced disciplinary action for unaccounted time. The Job were accepted as a reasonable explanation: see Mr Barnes at T/17/8 at lines 16 – 19. Holder has been the subject of disciplinary action for such issues several times during the There is no evidence of any formal investigations or sanctions for unaccounted time. Reasons: Cs are right that the disciplinary sanctions Relevant Period and some have resulted in sanctions. The Job Holder has been issued with referred to by Rs were for lateness, which Mr Collins The only sanction was imposed for lateness which is entirely different. See Collins at formal verbal warnings which have been documented on his personnel file.” said was “under a different heading completely”. T/17/115 “That’s under a different heading completely”. Cs’ proposed text about the frequency of faults is inaccurate (“rarely” is wrong), and Rs The Job Holder stood between two conveyor belts. He visibly inspected that the The Job Holder stood between two conveyor belts. He consider that it would be useful to state more precisely what faults occurred, how often, and machinery was working. If he noticed any defects or visible faults, for example a rip in visibly inspected that the machinery was working. If he how often the JH himself would come across them. The following text is consistent with the belt, he was required to report these immediately. Faults with the Chutes typically noticed any defects or visible faults, for example a rip Barnes w/s §37, pp. 210-211, Sutton w/s §§92-94, pp. 146-147, and Mr Barnes’ oral occurred around two to three times per day across the system and the Job Holder in the belt, he was required to report these evidence, day 17 pp. 5-7. Rs propose: came across faults approximately once or twice a week (and the typical number of immediately. Faults with the Chutes typically occurred faults per week grew as the automation system aged and was ultimately removed “The Job Holder stood between two conveyor belts. He visibly inspected that the machinery around two to three times per day across the system from the Chill Chamber after the Relevant Period). The most common fault was that was working. If he noticed any defects or visible faults, for example a rip in the belt, he was and the Job Holder came across faults approximately the scanner at the end of the belt did not work. Faults that also shut down the whole required to report these immediately. Faults with the Chutes typically occurred around two once or twice a week (and the typical number of faults automation system happened rarely - axle breaks occurred approximately every 2 - 3 to three times per day across the system and the Job Holder came across faults months, but sorter blockages stoppages happened more frequently than that. In per week grew as the automation system aged). The approximately once or twice a week (and the typical number of faults per week grew as the those circumstances (for faults that shut down the whole automation), it was not the most common fault was that the scanner at the end of automation system aged and was ultimately removed from the Chill Chamber after the Job Holders sole responsibility to report the fault, as it would affect all colleagues. the belt did not work. Faults that also shut down the Relevant Period). The most common fault was that the scanner at the end of the belt did not whole automation system happened rarely – axle work. Faults that also shut down the whole automation system happened rarely - axle breaks IB200 107 breaks occurred approximately every 2 - 3 months, but occurred approximately every 2 - 3 months, but shorter stoppages happened more The claimants largely agree Rs’ wording, although it should be made clear that the most frequently than that. In those circumstances (for faults that shut down the whole other faults, particularly blockages, happened more common defects to the system (rather than the JH’s scanner) were blockages rather automation), it was not the Job Holder’s sole responsibility to report the fault, as it would frequently than that. In those circumstances (for faults than anything else. See Barnes WS ¶37 [10/210] and T17/5 - 6. Rips in the belt or axle affect all colleagues.” that shut down the whole automation), it was not the breaks were rare, see Mr Barnes at T17/5 at lines 18 – 22. Job Holder’s sole responsibility to report the fault, as it would affect all colleagues. Reasons: “the typical number of faults … [etc]” is supported by Mr Sutton’s evidence. What happened after the relevant period is not relevant. Our wording for the penultimate sentence is based on IB’s written and oral evidence. 516 of 548 It is accurate to say that there was a pressure on the JH to ensure that there was not too high The blue lights may also have ﬂashed on a Chute staƟon if there were too many cases The blue lights may also have flashed on a Chute station a volume of cases (so that the blue lights were triggered) on the Chute station where he was on the conveyor belt which had not been picked. The conveyor belt would have if there were too many cases on the conveyor belt positioned. See Mr Barnes’ unchallenged evidence at w/s §29, p.208. Rs propose: stopped if that occurred. This occurred if there was a high volume of cases on the which had not been picked. The conveyor belt would Chute or the Chute had not been worked on for a period of Ɵme (the cases would have have stopped if that occurred. This occurred if there conƟnued to come down the Chutes even if a colleague was not working on them). was a high volume of cases on the Chute or the Chute “The blue lights may also have flashed on a Chute station if there were too many cases on There was a pressure ons The Job Holder had to ensure that this did not happen for had not been worked on for a period of time (the cases the conveyor belt which had not been picked. The conveyor belt would have stopped if that the Chute ends he was working on. If this did happen then it would have aﬀected the would have continued to come down the Chutes even occurred. This occurred if there was a high volume of cases on the Chute or the Chute had ﬂow of products in the automaƟon system and could have also potenƟally caused if a colleague was not working on them). The Job Holder not been worked on for a period of time (the cases would have continued to come down the further backlogs in the system (including up to the Strip StaƟon). When the Job Holder Chutes even if a colleague was not working on them). There was a pressure on the Job took a break, cases conƟnued to come down the Chute. As he had not worked on the had to ensure that this did not happen for the Chute Holder to ensure that this did not happen for the Chute ends he was working on. If this did Chute during that Ɵme, the blue light oŌen ﬂashed. When the Job Holder returned ends he was working on. If this did happen then it happen then it would have affected the flow of products in the automation system and could from his break, he worked hard to remove that backlog (unless another colleague or a would have affected the flow of products in the IB218 have also potentially caused further backlogs in the system (including up to the Strip Quad Coach had moved to that Chute to help clear the backlog during his break). 124 automation system and could have also potentially Station). When the Job Holder took a break, cases continued to come down the Chute. As he caused further backlogs in the system (including up to had not worked on the Chute during that time, the blue light often flashed. When the Job the Strip Station). When the Job Holder took a break, Holder returned from his break, he worked hard to remove that backlog (unless another The requirement upon the JH was to ensure that there was no build-up of boxes on the cases continued to come down the Chute. As he had not colleague or a Quad Coach had moved to that Chute to help clear the backlog during his Chute. That is described in detail and is not in dispute. Adding “There was a pressure on worked on the Chute during that time, the blue light break)”. the JH to …” before the requirement itself adds nothing useful. It could be said of every often flashed. When the Job Holder returned from his obligaƟon of every employee. break, he worked hard to remove that backlog (unless another colleague or a Quad Coach had moved to that Chute to help clear the backlog during his break). Mr Wilkinson’s extensive unchallenged evidence about this issue at w/s §§65-84, pp. 295- Knowledge and understanding of the products' journey in the Chill Chamber, and the Knowledge and understanding of the products' journey 299, explains why the JH needed to know about the flow of products in the Chill Chamber. need to contribute to the smooth flow of products by picking in a consistent manner, in the Chill Chamber, and the need to contribute to the See also Mr Barnes’ own unchallenged evidence about this issue at w/s §§4-6, p.202. and knowledge of the implications of failing to meet his pick target i.e. that it was smooth flow of products by picking in a consistent likely to result in an informal performance management conversation (or an informal Rs propose: manner, and knowledge of the implications of failing to performance management conversation prior to 2012) and that it could (if others meet his pick target, i.e. that it was likely to result in an “Knowledge and understanding of the products' journey in the Chill Chamber, and the need also failed to meet their targets) impact on the depot's ability to distribute those informal performance management conversation and to contribute to the smooth flow of products by picking in a consistent manner, and products to store in a timely manner or until re-ordered. that it could (depending on how others performed) knowledge of the implications of failing to meet his pick target i.e. that it was likely to result impact on the depot's ability to distribute those in an informal performance management conversation and that it could impact on the depot's ability to distribute those products to store in a timely manner or until the stock is Given that there was no performance management regime in operation at this depot products to store in a timely manner or until the stock IB267 162 reordered”. from 2012 (see Mr Sutton in his witness statement at ¶19 [10/133] and at T16/62 and is reordered. 63 and Mr Collins at T16/1002 - 103), it is misleading to describe post 2012 Reasons: This is a semantic dispute, in relation to which conversations as being “informal performance management conversations”. At present, we agree with Rs. The existence or non-existence of a the phrase is used to describe conversations which could be a precursor to formal formal performance management regime does not alter performance management as well as those which could not and it is misleading to describe both in the same way. whether an informal conversation about performance can fairly be described as a “performance management Secondly, a failure to meet targets by a single individual would not have such an impact. conversation”. Rs propose the following: Knowledge and understanding of how to pace the work on the Chute end to meet the Knowledge and understanding of how to pace the targets set at the start of the shift. This required retaining knowledge and work, the target set at the start of the shift, and how to “Knowledge and understanding of how to pace the work, the target set at the start of the understanding of the target set at the start of the shift, and how to determine determine whether he was meeting that target for the shift, and how to determine whether he was meeting that target for the shift.” whether he was meeting that target for the shift. IB270 165 shift. It is absolutely clear from undisputed evidence that the JH needed to know how to pace his work in order to meet the targets he was set at the Chute end. See e.g. Barnes w/s §22, Reasons: Although the speed at which items came p.206: down the shutes largely dictated the pace at which IB had to work, it did not dictate it completely (as per Rs’ 517 of 548 “I would choose to work at busy Chutes which meant there were lots of products to pick. If I This paragraph deals with Chute Picking. The pace of the work was fixed by the speed at submissions) and what IB had to have knowledge of was moved slowly in picking products and packing them into the cages my pick rate would go which items came down the belt, see LD interview [6/467] and Mr Barnes T17/4 at lines how to work at that pace. down. If I moved more quickly my pick rate would go up. I knew how to pace my work across 5-10. my shift so that I would hit my target. If the Chutes I was working on became quiet, I would try to move to busier Chutes. If I was trying to get a bonus by exceeding the pick target, I would pick more quickly and work on the busiest Chutes. The products came down the belt at one speed, but you could move quicker between Chutes and pick from lots of Chutes.” As best as Rs can understand, Cs dispute the text about “pacing” the work on the basis that products come down Chutes at a given speed, which cannot be increased. However, that is a straw man: (i) although the JH could not pick quicker than products came down the Chute, he could certainly pick slower; (ii) as stated in his w/s, he could and would move to busier Chutes if necessary to up his pick rate; (iii) the JH could and would pick from more than one set of Chutes and (iv) it is common sense that over the course of an 8-hour shift, the JH would need to know how most effectively to husband his energy to ensure he was working at a consistent pace to meet targets. See also in this respect Sutton w/s §82, p.144: “When working on the Chutes, warehouse colleagues had to work at a consistent pace to achieve their target. It was not sufficient to just stand and pick from a couple of chute ends at a leisurely pace; they had to work from several chute ends to be able to reach target”. The risk of damage was not “minimised” by products coming down in family groups, since (i) The possibility of damage being caused to the products by having stacked heavy items The possibility of damage being caused to the products products within family groups differed by weight as well as shape and size, even if (as Mr on top of light items (which was minimised by products coming down in family by having stacked heavy items on top of light items Barnes accepted in xx, day 17, p.13) quite a lot of products coming down in a family group groups). (which was reduced by products coming down in family would be the same; (ii) products might come down the Chute all of a sudden that were not groups). part of the family group (Mr Barnes’ evidence to that effect not being challenged in xx); and (iii) in any case, a heavier family group might follow a lighter one (Mr Barnes’ evidence to Family groups would reduce (if not enƟrely prevent) heavy items coming down on top Reasons: IB’s evidence about family groups at [T17/13- IB1742 171.5.2 that effect not being challenged in xx). See Barnes w/s at §§30-31, pp. 208-209. On that of light ones. See Mr Barnes from T17/13 at line 11 to T17/14 at line 7. 14] supports this wording. basis, Cs’ additional text regarding products coming down in family groups should not be "The possibility of damage being caused to the products by having stacked heavy items on top of light items." It is inaccurate to say that faults did not “happen often”: see IB200 above. Knowledge and understanding of the faults that could have arisen whilst working on Knowledge and understanding of the faults that could the Chute station, including the faults with the machinery (including the Chute end) have arisen whilst working on the Chute station, Mr Barnes’ oral evidence (day 17, pp.14-15) was that he needed to be able to identify the and/or the LCD display, keypad or scanner. The Job Holder required knowledge and including the faults with the machinery (including the nature of a fault to a Team Manager, although he would not need to go into detail, because understanding that he was not permitted to continue operating the Chute end if there it was “quite a regular occurrence”. Chute end) and/or the LCD display, keypad or scanner. was such a fault (which happened once or twice a week) although if the scanner at The Job Holder required knowledge and understanding In light of the evidence, Rs propose: the bottom of the belt was faulty he could use the tethered scanner to scan items. that he was not permitted to continue operating the (which did not happen often) . He also needed knowledge and understanding to “Knowledge and understanding of the faults that could have arisen whilst working on the Chute end if there was such a fault, other than a fault identify the faults and how to explain their nature (as well as possible solutions) to a Chute station, including the faults with the machinery (including the Chute end) and/or the with the scanner at the bottom of the belt, where he IB311 179 Team Manager. LCD display, keypad or scanner. The Job Holder required knowledge and understanding that could continue by using the tethered scanner to scan he was not permitted to continue operating the Chute end if there was such a fault (which items. happened once or twice a week), although if the scanner at the bottom of the belt was faulty The faults that put the chute out of operation (i.e. not faults with a scanner) did not he could use the tethered scanner to scan items. He also needed knowledge and Reasons: As to “once or twice a week”, the agreed occur once or twice a week. See IB200 above. understanding to identify the faults and how to explain their nature to a Team Manager.” wording of IB200 suggests that faults with the Chutes, There was no meaningful need for knowledge and understanding to identify the faults which occurred once or twice a week, included faults or explain their nature or possible solutions to a Team Manager. Many faults just with the scanner, which did not require IB to stop operating the chute. As to Rs’ last proposed sentence, 518 of 548 required the JH to point, see Mr Barnes T7/15 at lines 6 to 17: “Don’t really need an we agree with Cs: no particular “knowledge and explanation”. understanding” was needed in order to be able to give managers the information about faults that was given, e.g. “There is a blockage there”. Mr Sutton’s (undisputed) evidence is clear that colleagues needed to work at a consistent The pressure to pick quickly or risk of creaƟng Picking quickly enough to avoid Picking quickly enough to avoid backlogs within the pace in order to avoid backlogs within the automation system: see e.g. Sutton w/s §§85-87, backlogs within the automaƟon system which impacted other colleagues, such as automation system which impacted other colleagues, p.145. those on the Strip StaƟon who may not have been able to feed cases into the such as those on the Strip Station who might not have automaƟon system due to those backlogs. Rs propose: been able to feed cases into the automation system due IB1793 205.2.1 to those backlogs. “The pressure to pick at a consistent pace or risk creating backlogs within the automation system which impacted other colleagues, such as those on the Strip Station who may not The requirement upon the JH was to pick quickly enough to avoid backlogs. That is Reasons: We agree with Cs. have been able to feed cases into the automation system due to those backlogs.” described and is not in dispute. Adding “There was a pressure on the JH to …” before the requirement itself adds nothing useful. See IB218 above. The points made at IB164 above are equally material to this entry. The fact that all of the Job Holder’s Ɵme was monitored by the PkMS system within The fact that all of the Job Holder’s time was monitored the Chill chamber placed a signiﬁcant mental strain on him. It eﬀecƟvely meant that by the PkMS system within the Chill chamber placed a he was required to be working acƟvely at all Ɵmes (save when on an oﬃcial break). If mental strain on him. It effectively meant that he was Rs propose: the PkMS system idenƟﬁed non-working Ɵme, for which the Job Holder did not have a required to be working actively at all times (save when genuine reason (such as the fact that he had been required to clean a spillage), he “The fact that all of the Job Holder’s time was monitored by the PkMS system within the Chill on an official break). If the PkMS system identified nonmay have faced disciplinary acƟon for “unaccounted Ɵme” or for taking an unoﬃcial chamber placed a significant mental strain on him. It effectively meant that he was required working time, for which the Job Holder did not have a break. The Job Holder has been spoken to informally for such issues on about three to be working actively at all times (save when on an official break). If the PkMS system genuine reason (such as the fact that he had been occasions during the Relevant Period, but his explanations were accepted. The Job identified non-working time, for which the Job Holder did not have a genuine reason (such as required to clean a spillage), he might have faced Holder has been the subject of formal disciplinary processes for such issues several the fact that he had been required to clean a spillage), he may have faced disciplinary action times during the Relevant Period and some have resulted in sanctions. He has been disciplinary action for “unaccounted time” or for taking for “unaccounted time” or for taking an unofficial break. The Job Holder was the subject of issued with formal verbal warnings, which have been documented on his personnel an unofficial break. The Job Holder was spoken to formal disciplinary processes for such issues several times during the Relevant Period and IB395 205.3 file. informally for such issues on about three occasions some resulted in sanctions. He has been issued with formal verbal warnings, which have during the Relevant Period, but his explanations were been documented on his personnel file. The Job Holder cannot recall having faced accepted as being reasonable. disciplinary action for unaccounted time.” See IB 164 above in relation to unaccounted time etc. Reasons: “significant” either means more than de “Significant” is comment and can only refer to the effect upon the individual which is minimis, adding nothing of substance, or it is evaluative. not relevant (the job is not more valuable if someone is susceptible to such things nor We also broadly agree with Cs that “the job is not more less valuable because an employee is blasé) and should be removed. valuable if someone is susceptible to such things nor less valuable because an employee is blasé”. As to the rest, see IB164. Rs’ proposed text (which Cs propose to delete in its entirety) should be accepted. It is Analysing and calculating how to pace the work to meet the targets set at the start of Delete whole paragraph. consistent with the JH’s w/s (see Barnes w/s §22, p.206, Sutton w/s §82, pp. 144-145). See the shift. This required paying attention to the target set at the start of the shift, and Reasons: Although we did not agree with Cs in relation the points made at IB270 above. Note too that when the JH was asked whether he checked remembering how to determine whether he was meeting that target for the shift. to IB270, it is right that the pace is largely set by the the screen to see how many items he had picked, his answer was that he would “often” do that: see day 17, p.10. speed at which products came down the belt and we This paragraph deals with Chute Picking. The pace is set by the products coming down are not satisfied that IB did any ‘analysis’ or ‘calculation’ the belt. See IB270 above. as to “how to pace the work to meet the targets” at any IB396 205.4 "Analysing and calculating how to pace the work to meet the targets set at the start of the stage; what he did was “choose to work at busy Chutes” shift. This required paying attention to the target set at the start of the shift, and and “move to busier Chutes” if “the Chutes [he] was remembering how to determine whether he was meeting that target for the shift." working on became quiet”. He could see whether he was hitting ttarget from the screens at the end of the Chutes. 519 of 548 Rs’ proposed text should be accepted. Mr Barnes was absolutely categorical in his oral Paying visual attention to the LCD screen in order to pick cases and place them into Paying attention to the instructions given on the LCD evidence that he would look at the screen every time an item came down the chute, in order the correct cage. This required the Job Holder to maintain focus across the entire shift screen throughout the shift in order to pick cases and to check that he was putting it into the correct roll cage. He was asked about this several in order to follow the instructions correctly. The Job Holder was aware of the screen place them into the correct cage. times, and his answer was consistently that he would check every item: see transcript day across the shift. 17, pp. 17-18. The need to check the correct location for every single item is accurately Reasons: We agree with Cs that it is an exaggeration to IB375 205.10 characterised as requiring the maintenance of focus across the entire shift. say that IB maintained focus on the LCD screen the Items were delivered in family groups which were placed into the same cage. Although entire time. He had to look at it in relation to each item, the LCD screen was in the eyeline of the JH, it is unrealistic to suggest he was focused on but that is not the same thing. "Paying visual attention to the LCD screen in order to pick cases and place them into the it across the entire shift. See Mr Barnes’ evidence at T17/15 – 18. correct cage. This required the Job Holder to maintain focus across the entire shift in order to follow the instructions correctly." The disputed text here concerns the question whether the JH was required to use “numeracy The Job Holder was required to use basic numeracy skills when: The Job Holder was required to use numeracy skills skills” when applying the “75% rule” at the Chute station. Mr Barnes’ witness evidence (w/s when: §§9-10, pp. 203-204) states that he would need to count the products to determine how Reasons: We have kept “numeracy skills” because it is many were undamaged, and calculate whether that equated to 75% of a case. So he would Given the numbers involved, which would not involve more than 20 items (see LD need to use numeracy skills (and indeed, even if he was making an approximate estimate, he interview [6/467] and Mr Barnes’ evidence at T17/19 – 20), and the fact that it was agreed. Whether the skills involved were basic or would still need to use numeracy skills). His oral evidence was consistent with that. It was sufficient if approximately 75% of products were undamaged, the requirement was to otherwise is an evaluative assessment. IB392 205.26 suggested to him that all he needed to do was “glance” at the items in a case, without use only the most basic numeracy skills. needing to undertake any calculation to assess whether 75% were undamaged; his answer was that he would “count” and “make sure there was at least 75 per cent”. See transcript, day 17, p.19. "The Job Holder was required to use numeracy skills when:" See IB200 above for the evidence on the frequency of faults (and why use of the word issues with the automaƟon, such as a fault (rarely); issues with the automation, such as a fault (rarely); “rarely” in this context is inappropriate). Reasons: Cs are right. Part of the agreed wording of IB1801 205.28.2 Rs propose: IB200 is “Faults that also shut down the whole See above. There is no evidence that the Job Holder would deal with issues relaƟng to “issues with the automation, such as a fault (1 -2 times per week) (rarely);” automaƟon (as opposed to blockages etc) once or twice a week. It is accepted by the automation system happened rarely”. respondents (at IB200) that faults of this nature were rare. See IB200 above for the evidence on frequency of faults. The Job Holder occasionally liaised with a Quad Coach, Team Manager or ShiŌ The Job Holder spoke to a Quad Coach, Team Manager Manager and engineers where there were faults with the Chute end, the LCD display, or Shift Manager and engineers where there were faults printer, keypad, tethered scanner or a roll cage (he came across faults on average 1 – with the Chute end, the LCD display, printer, keypad, Rs propose: 2 Ɵmes per week but would not always be the one to report faults that aﬀected other tethered scanner or a roll cage. He came across faults Chutes). The Job Holder had to exercise communicaƟon skills in order to “The Job Holder occasionally liaised with a Quad Coach, Team Manager or Shift Manager and on average 1 - 2 times per week. convey informaƟon to managers and engineers about the fault in quesƟon, in order to engineers where there were faults with the Chute end, the LCD display, printer, keypad, ensure that all of the details needed to resolve the fault were passed on to them. Reasons: We don’t know why “liaised with” is being tethered scanner or a roll cage. He came across faults on average 1 - 2 times per week. The used when what seems to be meant is “spoke to”. Job Holder had to exercise communication skills in order to convey what may have been “occasionally” adds nothing, given that we have a complicated information to managers and engineers about the fault in question, in order to The fact of communicaƟon is set out in the paragraph already. The level of ensure that all of the details needed to resolve the fault were passed on to them.” frequency. It is agreed that faults affecting IB’s chute communicaƟon skills required was very modest – oŌen only requiring him to point. The (including scanner faults) occurred once or twice a IB408 206.2 ﬁnal sentence should be deleted. AlternaƟvely, it should be qualiﬁed by a reference to week (IB200), so there is no need to add “but would not “basic communicaƟon skills (someƟmes simply poinƟng) …”. See Mr Barnes at T see Mr always . [etc]”. As to Rs’ final proposed sentence, we Barnes T7/15 at lines 6 to 17: and IB311 above. It is common ground that he would not have already decided that what needed to be be responsible for reporting a fault that affected others working on Chutes, see the final sentence in IB200. communicated was limited (IB311). IB did not have to pass on sufficient information “in order to ensure that all of the details needed to reolve the fault were passed on”, something that, if true, would mean IB was expert in faults, which no one suggests he was. The extent of “communication skills” required will be for the experts 520 of 548 Mr Barnes’ evidence is that he would generally communicate with colleagues when moving When the Job Holder wheeled a loaded roll cage from the Chute end to the Chute When the Job Holder wheeled a loaded roll cage from roll cages to the Chute Marshalling lane, in order to make them aware he was passing: Marshalling lanes, he was sometimes required to communicate with colleagues (for the Chute end to the Chute Marshalling lanes, he Barnes w/s §34, p.210. C suggested in xx to Mr Barnes that there might not be many people example by saying “careful”) as he did so in order to alert them to his presence, given generally communicated with colleagues as he did so in in the way; Mr Barnes did not accept that. See transcript day 17, pp. 21-22 (“There might the risk of a collision between them and the roll cage. order to alert them to his presence, given the risk of a be…people walking from chute to chute. Or there could be a manager sometimes on the shop collision between them and the roll cage, for example floor. So it could be different people. It could be chill…it could be chute pictures and it could IB413 206.7 by saying “careful”. be managers. It could be anyone sometimes…”). In the premises, Rs propose: No-one was permanently positioned in the Marshalling lanes. If someone was walking past (or if a manager or someone else was standing in the area), he would sometimes Reasons: Rs are right about “generally” vs “sometimes”. “When the Job Holder wheeled a loaded roll cage from the Chute end to the Chute simply wait until they had gone. On other occasions he would say “careful”. This was “required” is the wrong word. Cs suggested example Marshalling lanes, he was generally required to communicate with colleagues as he did so in not done on every occasion and this and the nature of the communication should be order to alert them to his presence, given the risk of a collision between them and the roll accords with IB’s own oral evidence [T17/21]. made clear. See generally Mr Barnes’ evidence at T17/21-22. cage.” See IB200 above for evidence on the frequency of faults. Rs propose: Reporting to a Team Manager any faults or damage to the equipment and machinery, Reporting to a Team Manager any faults or damage to including the Chute conveyor (occasionally). the equipment and machinery, including the Chute “Reporting to a Team Manager any faults or damage to the equipment and machinery, conveyor (around 1 - 2 times per week). including the Chute conveyor (around 1 - 2 times per week).” IB434 208.2 See above. Although there may have been faults once or twice a week, he would not Reasons: See IB200 and IB408. The most frequent fault report them on each occasion. See IB200. would be a scanner fault, or something else affecting only IB’s Chute end, which he would report. It is clear from the evidence that working on Chutes gave very limited opportunity for social Working on chutes gave very limited opportunity for social interaction. Whilst During the course of an eight-hour shift, the Job Holder interaction. See Barnes w/s §17, p.205, and his oral evidence at transcript day 17, p.23. working on chutes during the course of an eight-hour shift, the Job Holder communicated with colleagues and other parties about communicated with colleagues and other parties about work related matters, as work-related matters, as detailed under detailed under the Communication Skills. However, given the nature of the work, the Communication Skills. However, given the nature of the Rs propose: noise levels and the requirement to work at a consistent pace, there was very limited work, the noise levels and the requirement to work at opportunity for the Comparator to have more than a quick "chat"" to colleagues “Working on chutes gave very limited opportunity for social interaction. During the course of a consistent pace, there was very limited opportunity during his shift. " an eight-hour shift, the Job Holder communicated with colleagues and other parties about for the Job Holder to "chat" to colleagues during his work related matters, as detailed under the Communication Skills. However, given the shift. IB450 210 nature of the work, the noise levels and the requirement to work at a consistent pace, there Mr Barnes accepted that you could have a brief chat with colleagues (particularly but was very limited opportunity for the Comparator to "chat" to colleagues during his shift.” Reasons: The first sentence is unnecessary – it adds not only when there was a blockage or other stoppage). See T17/23. nothing of substance to what follows. IB’s evidence (written and oral at [T17/23]) was not a clear admission that people would chat – we understood the gist of it to be that it was possible to have a quick chat, but that in practice people wouldn’t do that and that there were very limited opportunities to have any kind of chat. The need to work at a consistent pace in order to meet Chute Station targets is entirely There was also a countervailing pressure to work quickly, so as to meet the pick rate Delete entire paragraph. supported by the evidence. See IB270 above. Rs propose: for the shift. Reasons: In context in the JD, this paragraph suggests “There was also a countervailing pressure to work at a consistent pace quickly, so as to meet that the “constant demand .. to work safely” was in the pick rate for the shift.” IB468 some way in conflict with the need to achieve a 224 The speed of work at the Strip Station was dictated by the speed of pallets arriving at the platform on the belt and there is no evidence that colleagues had any difficulty particular pick rate. We do not accept it was. The fact keeping up or meeting targets in this area, see Mr Barnes’ evidence at T17/25 to T17/26 that there was a need to work at a consistent pace to line 1. See also Mr Collins at ¶¶52 – 54 [10/180]. See also Mr Sutton at T16/74 lines 12 meet pick rates is set out elsewhere in the JD. – 16. Cs’ suggested text here underplays the challenge of meeting targets on the Strip Station. The The Job Holder commented that he hit the target on strip staƟon most of the Ɵme but The Job Holder commented that he hit the target on the IB521 255 fact that a colleague can “only strip what is there” is not relevant to the question whether it that there were occasions when he did not meet the minimum target on a given shiŌ. strip station most of the time but that there were If he did not achieve the minimum strip rates, he knew it would have been more likely occasions when he did not meet the minimum target on 521 of 548 is “easy” to meet targets, and does not entail that there is no need to work at pace. See w/s that a ﬂex-up would be implemented (to allow more goods to delivered to the stores a given shift. If he did not achieve the minimum strip §43, p.212: on Ɵme), and he could have had a performance management discussion with a rates, he knew that a smaller number of goods would manager. However, on strip staƟon a Job Holder could strip what was there so that have been delivered to stores on time, it would have “The number of cases I stripped in each eight-hour shift was monitored. I had certain strip the speed of work was dictated by the speed of the belt. The Job Holder could meet rate targets that I had to meet in a shift…I understand that I said when working on the Strip been more likely that a flex-up would be implemented, target on most staƟons and could get bonus on some of them. A ﬂex-up would not be Station you could only pick what was there. That is of course true, but I did not mean that and he could have had a performance management implemented as a result of a single employee failing to meet targets. your pace of work was solely determined by what was there or that you could not pace your discussion with a manager. A flex-up would not be work to try and hit your shift target. Generally, there were enough cases available to hit the implemented as a result of a single employee failing to standard shift target. However, you could only do this if you worked at a consistent pace meet targets. The proposed amendment in red is intended to clarify the sentence. throughout your shift. If you stripped slowly, your strip rate would go down and if you worked harder your strip rate would go up…” Reasons: Neither side’s proposed wording in brackets is The speed of work and meeƟng of targets on the strip staƟon is dealt with at IB468. necessary. We agree with Rs that “The fact that a When it was suggested to him in xx that he would generally hit targets, Mr Barnes agreed, colleague can “only strip what is there” is not relevant but said (day 17, p.25): “I would hit my targets and I generally thought that other people Mr Collins made clear that ﬂex up depended upon the shiŌ target not being met, rather to the question whether it was “easy” to meet targets, would hit their targets, just because if we wasn’t to hit our targets that, you know, you would than an individual underperforming, see T16/63-64. There is no suggesƟon that a ﬂexand “does not [mean] that there is no need to work at be asked to explain that.” (Emphasis added) up would result from underperformance by a single employee, see T17/12 at line 23 to T17/13 line 2. pace”. Cs’ proposed penultimate sentence is unnecessary – we already have “The Job Holder “The Job Holder commented that he hit the target on strip station most of the time but that commented that he hit the target on strip station most there were occasions when he did not meet the minimum target on a given shift. If he did of the time”. Moreover, as Cs have submitted in not achieve the minimum strip rates, he knew that a fewer number of goods would have relation to IB395, albeit in a different context, IB’s been delivered to stores on time, it would have been more likely that a flex-up would be personal qualities cannot affect the value of the job, implemented (to avoid a fewer smaller number of goods being delivered to the stores on and the same must go for how good he was at the job. time), and he could have had a performance management discussion with a manager. We agree with Cs as to the last sentence. However, the Job Holder commented that on strip station it was generally accepted that you could only strip what was there and the Job Holder commented that you he could meet target on most stations and could get bonus on some of them.” The same points made at IB270 above with regard to pacing work at the Chute Station apply Knowledge and understanding of how to pace the work on the Strip Station to meet Knowledge and understanding of how to pace the in exactly the same way to the Strip Station. See Barnes w/s §43, p. 212; Sutton w/s §§68-73, the targets set at the start of the shift. This required retaining knowledge of the work, the target set at the start of the shift, and how to pp. 142-143. Rs’ proposed text should be accepted on that basis. Rs propose: target set at the start of the shift, and how to determine whether he was meeting determine whether he was meeting that target for the that target for the shift. IB563 "Knowledge and understanding of how to pace the work on the Strip Station to meet the shift. targets set at the start of the shift. This required retaining knowledge of the target set at the Reasons: As for IB270. start of the shift, and how to determine whether he was meeting that target for the shift." Speed of work on strip station is set by the goods on the belt. See IB468. The evidence is clear that (i) the JH had an individual target on the Strip Station; (ii) he could Knowledge and understanding of the implications if he (and others on shift) did not Knowledge and understanding of the implications if he be spoken to if he did not meet his target; (iii) if the team did not meet the target as a whole, meet the shift target was not met, including the likelihood that that would result in a did not meet his target, including that it may result in a it would be likely to lead to a flex-up being required (and an individual’s own performance flex-up, a performance management conversation, and the impact that it would performance conversation and that it may contribute to would obviously contribute to that); and (iv) if the target was not met, it would affect the have had on the depot’s ability to distribute those products to store in a timely a flex-up being required; as well as knowledge of the depot’s ability to distribute products to stores in a timely manner. See Barnes w/s §§43-45, manner or at all. implications if he and his colleagues did not meet the p.212; Sutton w/s §§68-73, pp. 142-143; Collins w/s §§52-55, p.180. See also day 17, p.12, shift target, including the likelihood that that would Barnes xx as regards the likelihood of a flex up on Chutes where the team target was missed result in a flex-up, and the impact that it would have on (and the same point applies equally to the Strip Station). The implications depended upon the shift target not being met, rather than an the depot's ability to distribute products to store in a individual underperforming, see Mr Sutton at T16/63-64 and IB521 above. timely manner or until the stock was re-ordered. IB564 264 Although an informal conversation could take place as a result of individual underperformance, there is no evidence that this was “likely” and any such Reasons: Rs’ revised wording meets Cs’ reasonable ‘Knowledge and understanding of the implications if he did not meet his target, including conversation was not a performance management conversation, see IB267 above. objections. We don’t think a single person missing that it may result in a performance conversation and that it may contribute to a flex-up being target might in reality “impact on the depot's ability to required and that it may impact on the depot's ability to distribute products to store in a distribute products to store in a timely manner”. timely manner; as well as knowledge of the implications if he and his colleagues (and others on shift) did not meet the shift target, including the likelihood that that would result in a flexup, a performance management conversation, and the impact that it would have had on the depot's ability to distribute those products to store in a timely manner or until the stock is re-ordered.” 522 of 548 Cs’ proposed text here is inaccurate, because there is no “flow” of cases. The pallets from Working under the stress and / or pressure to strip cases quickly and to position cases Keeping up with the expected pace in order to meet the which the JH takes products in the Strip Station are stationary, so that the JH himself on the conveyor belt accurately Keeping up with the flow of cases in order to meet the minimum strip target rate whilst also positioning the determines the pace of stripping. Rs propose: minimum strip target rate and position cases on the conveyor belt accurately. The cases on the conveyor belt accurately. The mental mental effort increased the busier the shift, and where the Job Holder was unable to “Working under the pressure of keeping up with the expected pace in order to meet the effort increased the busier the shift, and where the Job meet the minimum target ratings on a particular shift (rarely). minimum strip target rate whilst also positioning the cases on the conveyor belt accurately. Holder was unable to meet the minimum target ratings The mental effort increased the busier the shift, and where the Job Holder was unable to on a particular shift (rarely). meet the minimum target ratings on a particular shift (rarely)”. IB612 289.2 Reasons: We agree there wasn’t a “flow of cases” to keep up with. We are not satisfied that there was particular pressure, except in the sense that any conscientious person feels under pressure to do their job well. The expected pace was – broadly – that of a reasonable, average employee working at a reasonable It is clear from the evidence that the JH needed to assess how to pace his work in order to Analysing and calculating how to pace the stripping work to meet the targets set at Delete. meet his individual target for the Strip Station during the course of a shift. See e.g. Barnes the start of the shift. Reasons: We are not satisfied that IB did any ‘analysis’ §43, p.212. or ‘calculation’ as to “how to pace the work to meet the The speed of work and meeƟng of targets on the strip staƟon is dealt with at IB468 targets” at any stage. IB simply had to work at a IB622 289.4 “Assessing how to pace the stripping work to meet the targets set at the start of the shift.” above. reasonable pace and Cs are right (IB468) that, “there is no evidence that colleagues [still less IB] had any difficulty keeping up or meeting targets in this area”. The points made at IB395 above apply equally here. The fact that all of the Job Holder’s time was monitored by the PkMS system within The fact that all of the Job Holder’s time was monitored the Chill chamber placed a mental strain on him. It effectively meant that he was by the PkMS system within the Chill chamber placed a required to be actively working at all times (save when on an official break). If the mental strain on him. It effectively meant that he was “The fact that all of the Job Holder's time was monitored by the PkMS system within the Chill PkMS system identified non-working time, which the Job Holder did not have a required to be actively working at all times (save when chamber placed a significant mental strain on him. It effectively meant that he was required genuine reason for (such as the fact that he had been required to clean a spillage), he on an official break). If the PkMS system identified non- to be actively working at all times (save when on an official break). Where the PkMS system may have faced disciplinary action for “unaccounted time” or for taking an unofficial working time, which the Job Holder did not have a identified non-working time, the Job Holder may have faced disciplinary action for break. The Job Holder has been spoken to about such issues on three occasions during genuine reason for (such as the fact that he had been "unaccounted time" or for taking an unofficial break. The Job Holder has been the subject of the Relevant Period but on each occasion his explanation was accepted as being IB624 289.6 required to clean a spillage), he might have faced formal disciplinary processes for such issues several times during the Relevant Period and reasonable. some have resulted in sanctions. He has been issued with formal verbal warnings, which disciplinary action for “unaccounted time” or for taking have been documented on his personnel file.” an unofficial break. The Job Holder was spoken to about See above at IB164. such issues on three occasions during the Relevant Period and on each occasion his explanation was accepted as reasonable. Reasons: See IB164. Implementation of the “75% rule” on the Strip Station required the application of numeracy Exercising decision making when implementing the “75% rule”. In particular, he had Exercising decision-making when implementing the skills. See the points made at IB392 above as regards the Chute Station, which apply mutatis to judge whether products were damaged or undamaged and if damaged, whether “75% rule”. In particular, he had to judge whether mutandis in this context. See too Barnes w/s §§9-10, p.203, which explain how the rule is they were recoverable. He also had to use his basic numeracy skills when products were damaged or undamaged and if applied in the context of both Chute Picking and the Strip Station: “I would count the implementing the "75% rule" although an estimate of approximately 75% was damaged, whether they were recoverable. He also had products to determine how many were undamaged. For example, I knew that Clover butter sufficient. to use his numeracy skills when implementing the "75% came in boxes of 20 and if 15 individual packs of butter came down the Chute out of a IB613 289.20 rule" although an estimate of approximately 75% was damaged case then, as that is 75% of 20, I knew I could package them up”. sufficient. Respondents’ wording agreed, save that only “basic” numeracy skills were involved, see IB392 above. Reasons: As for IB392. We allow “judge” only because it “Exercising decision making when implementing the "75% rule". In particular, he had to is agreed. judge whether products were damaged or undamaged and if damaged, whether they were recoverable. He also had to use his numeracy skills when implementing the "75% rule" 523 of 548 although an estimate of approximately 75% was sufficient. and had to be accurate in doing so.” Rs’ reference to numeracy skills is appropriate here. See IB392 and IB613 above. The Job Holder was required to use basic numeracy skills when: The Job Holder was required to use numeracy skills when: IB628 290 Reasons: As for IB392. "The Job Holder was required to use numeracy skills when:" See above at IB392. Rs understand that Cs rely upon their note of the interview with Mr Barnes at bundle 6, If the Job Holder did not place cases on the conveyor belt correctly, those cases would If the Job Holder did not place cases on the conveyor p.473, to suggest that the JH has never been spoken to (by anyone, at any level of formality) have been sent to the No Reads station. If this occurred repeatedly, a colleague from belt correctly, those cases would have been sent to the about the way in which he has positioned cases on the conveyor belt. That is not what the JH the No Reads station or a manager may have fed that back to the Job Holder in order No Reads station. If this had occurred repeatedly, a said. As is clear from DACB’s note of the same exchange at bundle 6, p.428, the point made that he could have corrected the way he positioned cases. The Job Holder had to listen colleague from the No Reads station or a manager by Mr Barnes was that he had not been in any kind of performance-related process actively to the feedback from his colleague, and use his communication skills to deal might have fed that back to the Job Holder in order that concerning this issue. Mr Barnes was not intending to suggest he had never been spoken to with any disagreement over the adequacy of his positioning of cases. This has never he could have corrected the way he positioned cases, at all. His unchallenged evidence at w/s §47, p.213, is: happened to the Job Holder. but this did not happen in practice during the relevant “If I did not place cases on the conveyor belt correctly after they had been stripped, those period. cases could not be read by the automated system and would be sent to the No Reads station. In his interview Mr Barnes made clear that he was not spoken to in relation to If this occurred repeatedly, a colleague from the No Reads station or a jam buster, or a Reasons: We agree with Cs. And even if this happened positioning items on the belt, see the LD Interview at [6/473]. Although his statement manager might let me know that I was not placing cases on the belt correctly. I understand once during the relevant period (and we are not [¶47 at 10/213] said that he recalled being spoken to by a manager (i.e. once in ten there is a dispute about whether this happened to me. This did happen to me, and I recall satisfied it did), that would be de minimis. years) in cross examination he said that he could not recall the incident (although it was IB634 292.2 being spoken to by a manager for not placing cases on the conveyor belt correctly.” possible that such a conversation took place). In the circumstances, there is no Mr Barnes’ oral evidence was that he was “possibly” spoken to by a manager (day 17, p.29); evidence of any such conversation actually taking place and this should be reflected in but it should also be borne in mind that a manager is not the only person who would speak the JD. to the JH about the issue. In the premises, Rs’ text should be accepted. "If the Job Holder did not place cases on the conveyor belt correctly, those cases would have been sent to the No Reads station. If this occurred repeatedly, a colleague from the No Reads station or a manager may have fed that back to the Job Holder in order that he could have corrected the way he positioned cases. The Job Holder had to listen actively to the feedback from his colleague, and use his communication skills to deal with any disagreement over the adequacy of his positioning of cases." Mr Sutton’s unchallenged evidence at w/s §75 (p.143) was: “Warehouse colleagues using the The compactor. Delete. compactor all had to take collective responsibility to ensure that it did not clog up…” Reasons: We are not satisfied that in practice, IB In those circumstances, it is appropriate to add the compactor to the list of equipment at handled the compactor “correctly and with care” in This disputed reference to the compactor is said to be an example of “Handling 293.8. equipment and machinery correctly and with care to ensure that they were not order to avoid it being “damaged”. Rs propose: damaged”, see paragraph 293.8 at [6/89]. The compactor. This is not an accurate description of his use of the compactor. IB1869 293.8.4 The actual use which the Job Holder made of the compactor is agreed and set out at paragraph 258.26 [[6/77] as follows: “He, or one of his colleagues, then put that shrink wrap, cardboard and other rubbish in a compactor hatch. The compactor hatch essentially took such rubbish down a conveyor belt to be compacted. The Job Holder had to keep an eye on the compactor to make sure it did not get clogged up”. It is agreed that he did not operate the controls on the compactor, see the agreed deletion at what was paragraph 285.4.12.5 [6/84]. 524 of 548 As a result, either the reference should be entirely removed or should be qualified by adding the words “(in that he kept an eye on it to make sure it did not get clogged up)”. Mr Barnes’ witness evidence on this (w/s §18, p.205) was: There was liƩle to no scope for the Job Holder to speak with colleagues whilst on shiŌ. There was little scope for the Job Holder to speak with The Job Holder may have been based at a Strip StaƟon on his own and so would have colleagues whilst on shift. The Job Holder might have “I found working on the Strip Station to be one of the most antisocial deployments and this had no opportunity to speak to anyone whilst working. Even if a colleague was been based at a Strip Station on his own and so would was a reason I did not enjoy being deployed to this station. I would almost always be based working next to the Job Holder, given the nature of the work, the noise levels and the at the Strip Station by myself for my eight-hour shift. Evven when I did have someone working have had no opportunity to speak to anyone whilst requirement to work at a consistent pace, there was very limited opportunity for the with me, the noise levels and the need to work at a consistent pace to hit our shift targets working. Even if a colleague was working next to the Claimant to have more than a quick simply “chat” or say “hi” to colleagues during his meant I would rarely be able to chat to colleagues whilst working. We would’ve had to stop Job Holder, given the nature of the work, the noise shiŌ. working if we wanted to have a chat – that would be obvious to a Team Manager and it levels and the requirement to work at a consistent would also affect our rates.” pace, there was very limited opportunity for the Although this area was said to be noisier than Chutes (at IB540 above) Mr Barnes said His oral evidence was consistent with that – see e.g. day 17, p.31: “I didn’t like it because it that he could sƟll say “hi”, see T17/31. Claimant to "chat" to colleagues during his shift. was a bit less – it was more – less social, like more antisocial, but it was colder as well and it Reasons: Being able to say “hi” is not the same as was noisier.” having a quick chat; but it is speaking to colleagues. See also Sutton w/s §77, pp. 143-144: “It was quite noisy and colleagues were generally spaced out. One colleague would work across two Strop Stations (which are approximately 3 meters apart). So, if another colleague IB667 301 was working across the next two Stations and being on the furthest one away, there would be a distance of approximately 12 metres between them. In addition, colleagues were expected to work at a consistent pace throughout the shift”. In the circumstances, “little to no scope” to speak with colleagues, and “very limited opportunity to chat”, are appropriate descriptions. See too Mr Sutton’s oral evidence on the distance between two strip stations (which made clear that colleagues would be working 5 metres apart, and that the environment was in any event not conducive to chatting): transcript day 16, pp. 80-81. "There was liƩle to no scope for the Job Holder to speak with colleagues whilst on shiŌ. The Job Holder may have been based at a Strip StaƟon on his own and so would have had no opportunity to speak to anyone whilst working. Even if a colleague was working next to the Job Holder, given the nature of the work, the noise levels and the requirement to work at a consistent pace, there was very limited opportunity for the Claimant to simply "chat" to colleagues during his shiŌ." Mr Barnes’ evidence on marshalling, just as on Chute Picking or Strip Station, was that it was Knowledge and understanding of how to pace the work to reduce the risk of backlogs Delete. necessary to work at a consistent pace in order to reduce the possibility of backlogs of loaded roll cages developing within the Chute Marshalling lanes. Reasons: the evidence is that what IB did was work at a developing. See his w/s, §51, p.214: reasonable, consistent pace. It is an exaggeration to say “I was not set any official targets when Marshalling, but I was expected to Marshal at a This does not reflect the evidence. Mr Barnes accepted in his interview [6/498] and in that the ability to do that involves having “Knowledge consistent pace in order to reduce the possibility of backlogs developing within the Chute his evidence (see Barnes at T17/31/21 – T17/32/15) that he would work at a reasonable and understanding of how to pace the work … [etc]”. Marshalling lanes…There was a flow of products and if all my colleagues were working at a pace and would not work faster than was safe. He did not say that he would modify his consistent pace but I was not, then I would create backlogs in the system and the floor would pace to deal with a backlog (although he could be asked to prioritise a particular area). get congested in my area/zone.” IB796 387 Nothing in Mr Barnes’ oral evidence gainsaid the point that he needed to work at a consistent pace. He said that he would “work at a reasonable pace” rather than “rush or work dangerously” (see transcript day 17, p.32), but that is entirely compatible with the need to work consistently. Rs’ text (which Cs are proposing to delete in its entirety) should be accepted on that basis. "Knowledge and understanding of how to pace the work to reduce the risk of backlogs of loaded roll cages developing within the Chute Marshalling lanes." 525 of 548 It is clear from Barnes w/s §19, p.205, that this was a lonely and isolated deployment, The Job Holder considered this deployment to be a lonely and isolated deployment When he worked alone, the Job Holder would not speak whether the JH was on No Reads by himself or not. In xx (transcript day 17, p.43) the JH whether he was working on a station alone or with a colleague. This was because if to anyone. When working at the same station as a explained that it was not possible simply to speak to the person at the next station, because he was alone, he could not speak to anyone, and even if there was a colleague colleague, given the nature of the work, the noise levels it was too noisy (as well as cold). working alongside him, it was either too loud to speak to them, or the reason the and the requirement to work, there were not chats or other person was there was because it was busy, and therefore it was too busy to stop Rs propose: social conversations, but he might speak with a and speak anyway. Given the nature of the work, the noise levels and the colleague who needed assistance or exchange a very “This was a lonely and isolated deployment whether the JH was working on a station alone requirement to work, there was very limited opportunity for the Comparator to have brief greeting with them. or with a colleague. If the JH was alone, he could not speak to anyone, and even if there was more than a quick "chat"" to colleagues during his shift. " a colleague working alongside him, it was either too loud to speak to them, or the reason the Reasons: Whether IB felt lonely is not an objective fact IB954 432 other person was there was because it was busy, and therefore it was too busy to stop and about the job. To say it was “isolated” suggests that he speak anyway.” It is wrong to say that it was too noisy to speak to a colleague even if the colleague was was working without anyone anywhere near him, which on the next station (a distance described by Mr Barnes as being about the distance is not the case; or it is a statement about his subjective from the witness table to Mr Margo at the hearing). It was common ground that state of mind which does not belong in the JD. It is clear colleagues could speak to one another (for example to give information to an from the oral and written evidence that there was inexperienced colleague) even if this involved “leaning in”. It would be even easier in the event that two colleagues were at the same station or when there were gaps in the minimal social interaction in practice, whatever the work, as was sometimes the case, see below at IB1084. It is not suggested that the theoretical possibilities. Various things around this were colleagues were able to have lengthy social conversations: they are at work. See put to him in XX, but he did not agree with them. generally Mr Barnes’ evidence at T17/42 – 43. Rs’ text should be accepted. The JH has explained in his w/s at §62 (p.217) that he reported The Job Holder also had to be careful when lifting products from the feeding belt to The Job Holder also had to be careful when lifting faults at the No Reads station to a manager on at least a daily basis when he was working the metal rollers to ensure that he did not catch his hand in the machinery, which products from the feeding belt to the metal rollers to there: most commonly, that the system had become jammed - Barnes §62, p.217. See also could have resulted in an injury. The Job Holder also had to continually inspect the ensure that he did not catch his hand in the machinery, the notes of the JH’s interview with Cs’ representatives, from which it is clear that there feeding belt and metal rollers as he carried out his duties for any faults. The JH does which could have resulted in an injury. The Job Holder were a number of faults in No Reads, either with the Rumba/PkMS systems, or with the not recall there being any faults. If there were any faults, he was responsible for also had to continually inspect the feeding belt and belts. See entries 43 and 45, bundle 6, p.477. reporting those to a manager. metal rollers as he carried out his duties for any faults. IB978 44 Rs propose: If there were any faults, he was responsible for reporting those to a manager. "The Job Holder also had to be careful when lifting products from the feeding belt to the The only problems identified in relation to No Reads were blockages [Mr Barnes’ metal rollers to ensure that he did not catch his hand in the machinery, which could have statement at ¶62, 10/217), which would not involve inspecting feeding belts or rollers. Reasons: We agree with Rs. We note that IB does not resulted in an injury. The Job Holder also had to continually inspect the feeding belt and Mr Barnes’ could not recall any faults with rollers during his interview, see 6/500. seem to have been cross-examined about paragraph 62 metal rollers as he carried out his duties for any faults. If there were any faults, he was of his statement. responsible for reporting those to a manager." The evidence is overwhelming that colleagues required a longer period to become proficient The Job Holder was aﬀorded a twelve-week period when he ﬁrst started working on The Job Holder was afforded a twelve-week period in No Reads, because of the complexity and technical nature of the deployment. See e.g. No Reads. This is known as the twelve-week learning curve period. The Job Holder when he first started working on No Reads. This is Barnes w/s §§59-60, p.216; Brookes w/s §§45-48, pp. 198-199. See e.g. the unchallenged commented that that Ɵme was suﬃcient to learn the basics of No Reads, provided known as the twelve-week learning curve period. The evidence at Brookes w/s §46, p.198: that during those twelve weeks he worked on No Reads three out of ﬁve shiŌs and Job Holder commented that that time was sufficient to even then he learned more about the full operaƟon of it as his experience grew aŌer “I can confirm that a colleague who was trained in No Reads would have the benefit of the learn the basics of No Reads, provided that during those the twelve-week learning curve period. The learning process on No Reads took more usual twelve week learning curve. However, due to the complexity of the work in No Reads, it twelve weeks he worked on No Reads three out of five Ɵme than on other acƟviƟes due to its complexity. took longer to develop the skills required in this work area and the colleague would continue shifts and even then he learned more about the full to work alongside a more experienced colleague for a period of time, which could be several operation of it as his experience grew after the twelveThis is unhelpful comment. It could equally be said that other acƟviƟes required less weeks or months…” Ɵme because of their simplicity. week learning curve period. The learning process on No IB1013 473 Reads took more time than on other activities. In those circumstances, the phrase ‘due to its complexity” in Rs’ text is appropriate. Reasons: We agree with Cs. The extent to which something is complex is an evaluative judgment rather than a matter of fact. Moreover, something can take "The Job Holder was afforded a twelve-week period when he first started working on No longer to learn because (e.g.) there is a a lot of it rather Reads. This is known as the twelve-week learning curve period. The Job Holder commented than because it is complicated. that that time was sufficient to learn the basics of No Reads, provided that during those twelve weeks he worked on No Reads three out of five shifts and even then he learned more about the full operation of it as his experience grew after the twelve-week learning curve period. The learning process on No Reads took more time due to its complexity." 526 of 548 The oral evidence on this point (shadowing in No Reads) was that the JH did not have When the Job Holder eventually became experienced and proficient in the No Reads When the Job Holder eventually became experienced colleagues specifically designated to “shadow” him as such (although a shadowing system deployment, he would occasionally provide informal guidance to a less experienced and proficient in the No Reads deployment, he would was in place), but that he would help new colleagues to learn on the job by showing them colleague if they were unsure. He was not specifically asked to show another occasionally provide informal guidance to a less the ropes: transcript day 17, pp. 41-42. He said that this was necessary because it was a employer how to carry out this task. in turn had colleagues new to the No Reads experienced colleague if they asked for help. His “technically difficult job”: day 17, p.39. deployment shadow him for two to three days. The work shadowing arrangement did employer did not specifically tell him to do this. not take place in other roles, but did in No Reads because of the nature of the work it IB1014 474 was a particularly technical deployment. Reasons: This accurately reflects the oral evidence at Rs propose: [T17/41-2]. Whether “it was a technically difficult deployment” is not a matter of objective fact. “When the JH eventually became experienced and proficient in the No Reads deployment, Mr Barnes did not recall ever being asked to allow a less experienced colleague to he would assist new colleagues in learning how to do the job by showing them how to shadow him, although he may have helped employees who were inexperienced if they perform tasks on No Reads, because it was a technically difficult deployment (although he asked if to do so, see T17/42. was not designated to be shadowed).” Both Mr Barnes’ witness statement and his oral evidence support the fact that he had to The Job Holder was not permitted to move to another task during the occasions when The Job Holder was not permitted to move to another remain prepared to process cases as they arrived, so that he could not simply “switch off” if there were few or no cases / products arriving. He was required to stay at the No task during the occasions when there were few or no no case was coming down the conveyor belt. See w/s §70, p.219 . See also his oral evidence Reads station at all times, even if that meant he had little or nothing to do for periods cases / products arriving. He was required to stay at the at day 17, p.44: at a time, which was an additional mental demand. The Job Holder still however had No Reads station at all times, even if that meant he had to be prepared to process cases as they arrived, so he could not simply “switch off”. “You would get gaps, you know, in the work, but then you would have to stay there in case little or nothing to do for periods at a time, as he had to more work.- and then sometimes there’s the waiting. You don’t really still get respite because be prepared to process cases as and when they arrived. IB1084 499.3 it’s like quite – it’s a cold area to work on.” It is accepted that the Job Holder could not move when there were gaps in the work Reasons: We agree with Cs. Whether or not IB, Rs’ proposed text should be accepted on that basis, viz.: and had to be ready when work became available. That was not an additional mental subjectively, found standing at the No Reads station demand in any meaningful sense and was not described as such by Mr Barnes. "The Job Holder was not permitted to move to another task during the occasions when there waiting for cases to arrive mentally demanding and felt were few or no cases / products arriving. He was required to stay at the No Reads station at he could not simply “switch off” does not translate into all times, even if that meant he had little or nothing to do for periods at a time, which was an a finding of objective fact we could make that might additional mental demand. The Job Holder still however had to be prepared to process cases conceivably be relevant to the equal value question. as they arrived, so he could not simply "switch off"." The fact that the JH was unable to speak with colleagues without difficulty in the No Reads The mental eﬀort required to operate the No Reads staƟon was also exacerbated by As to the Job Holder’s ability to communicate with deployment is entirely consistent with the JH’s witness statement and oral evidence and its isolated nature. The Job Holder was generally able unable to communicate with a colleagues when on No Reads, see paragraph [432] appears to be uncontested. It is self-evident that the isolated nature of the work would colleague (on an ad-hoc basis), for example, if he wished to discuss a query about above. increase the mental effort required if (which appears to be accepted) it meant that the JH was processing a parƟcular product. unable to relieve himself by chatting with colleagues, and was unable to discuss queries Reasons: See IB954. Repeating the same information in without difficulty. Rs’ text should be accepted on that basis, viz.: different words, is undesirable. Referring back to a IB1064 499.10 The evidence was that he could communicate with others, for example when less previous section of the JD ensures consistency of "The mental effort required to operate the No Reads station was also exacerbated by its experienced colleagues asked him if they were doing something correctly, see above at wording and therefore meaning. isolated nature. The Job Holder was generally unable to communicate with a colleague (on an IB954 and IB1014. ad-hoc basis), for example, if he wished to discuss a query about processing a particular product. " Application of the “75% rule” required numeracy skills for the reasons at IB392 and IB613 Exercising decision making when implementing the “75% rule”. In particular, he had Exercising decision making when implementing the above, although an approximate estimate was “good enough”. to judge whether products were damaged or undamaged and if damaged, whether “75% rule”. In particular, he had to judge whether they were recoverable. He also had to use his basic numeracy skills when products were damaged or undamaged and if implementing the “75%” rule although an estimate of approximately 75% was damaged, whether they were recoverable. He also had Rs propose: sufficient. to use his numeracy skills when implementing the IB1081 499.26 “Exercising decision making when implementing the “75% rule”. In particular, he had to “75%” rule although an estimate of approximately 75% judge whether products were damaged or undamaged and if damaged, whether they were was sufficient. See above at IB392 re: basic. recoverable. He also had to use his numeracy skills when implementing the “75% rule” Reasons: See IB613 above. although an estimate of approximately 75% was sufficient and had to be accurate in doing so. “ Mr Barnes’ undisputed witness evidence at w/s §71, p.219, is: If a colleague on the Strip Station did not place cases on the conveyor belt correctly If a colleague on the Strip Station did not place cases on IB1104 503.6 (i.e. the barcode on the case was not exposed), those cases would have been sent to the conveyor belt correctly (i.e. the barcode on the case 527 of 548 “If a colleague on the Strip Station did not place cases on the conveyor belt correctly, for the No Reads station. If this occurred repeatedly, the Job Holder may have fed that was not exposed), those cases would have been sent to example if the barcode on the cases was not exposed, those cases would have been sent to back to a Quad Coach or to the colleagues on the Strip Station in order that they could the No Reads station. If this occurred repeatedly, the the No Reads station. If this occurred repeatedly, I may have fed that back to the colleague have corrected the way they positioned cases. The Job Holder had to use his Job Holder might have fed that back to a Quad Coach or on the Strip Station. I understand there is a dispute about whether this required communication skills to deal with any disagreement over the adequacy of the to the colleagues on the Strip Station in order that they communication skills. I communicated the issue to a Quad Coach and asked them to tell the colleague’s positioning of cases. could have corrected the way they positioned cases. colleague about this.” Reasons: We agree with Cs. Also, although there was On that basis, it is appropriate to include the use of the JH's communication skills. Rs The Job Holder’s role was limited to speaking to the Quad Coach. There is no evidence communication – that goes without saying – but the propose: that he would deal with any disagreements, see Mr Barnes’ witness statement at ¶71 extent of “communication skills” involved is for the “If a colleague on the Strip Station did not place cases on the conveyor belt correctly (i.e. the [10/219]. barcode on the case was not exposed), those cases would have been sent to the No Reads station. If this occurred repeatedly, the Job Holder may have fed that back to a Quad Coach in order that they could have corrected the way they positioned cases. The Job Holder had to use his communication skills to deal with any disagreement over the adequacy of the colleague’s positioning of cases.” See IB1014 above regarding shadowing. See also Mr Brookes’ unchallenged evidence at w/s The Job Holder also interacted with those colleagues who were new to No Reads by The Job Holder also interacted with those colleagues §47, p.198: providing them with advice and guidance on how to carry out the various tasks who were new to No Reads by providing them with involved in the role. The level of communicaƟon skill increased when the new starters advice and guidance on how to carry out the various “[Work shadowing] was used in No Reads because of the technical nature of the work and were actually shadowing the Job Holder. This required him to aid in the teaching of the skills required in order to identify a product. As it was difficult to try and identify certain tasks involved in the role. the procedures on the No Reads staƟon to the new starter. The Job Holder therefore products if they looked the same, it was necessary to use multiple methods to correctly had to communicate in an accessible way. The Job Holder also had to communicate a Reasons: We agree with Cs. See also IB1084 and IB1104 identify them (for example, considering the size and weight of the product). I am informed signiﬁcant amount of informaƟon to the new starter. above. there is a dispute over whether or not it is correct to say that a significant amount of information needed to be communicated to the new colleague. I confirm that there was a lot IB1106 503.8 of information for a colleague to take on board, given the volume and variety of products The new starters did not shadow the Job Holder, see IB1084 above and Mr Barnes’ that could be sent to No Reads…” evidence at T17/42. “The Job Holder also interacted with those colleagues who were new to No Reads by providing them with advice and guidance on how to carry out the various tasks involved in the role. The Job Holder had to communicate in an accessible way. The Job Holder also had to communicate a significant amount of information to the new starter.” Rs’ text about the isolated nature of the deployment in No Reads is appropriate on the There was liƩle to no scope for the Job Holder to speak with colleagues whilst on shiŌ. Delete whole paragraph. evidence: see the entry for IB954 above. In fact, the role was parƟcularly isolaƟng and had the potenƟal to make the Job Reasons: We already have two paragraphs in the job Holder feel lonely. The Job Holder was regularly required to work on his own for long Rs therefore propose: description about this (IB954 & IB1084). There is no periods at a Ɵme. There were generally no opportuniƟes for the Job Holder to chat to "There was little to no scope for the Job Holder to speak with colleagues whilst on shift. In a colleague whilst working, even when another colleague was working on a nearby need for a third. fact, the role was particularly isolating and had the potential to make the Job Holder feel No Reads staƟon (because of the noise, and because if there were two individuals lonely. The Job Holder was regularly required to work on his own for long periods at a time. (one being the Job Holder) working at the No Reads staƟon, it almost always meant There were generally no opportunities for the Job Holder to chat to a colleague whilst that it was because there was a high volume of cases to be processed at the No Reads IB1132 511 working, even when another colleague was working on a nearby No Reads station (because staƟon meaning the Job Holder and his colleague were too busy to speak to each of the noise, and because if there were two individuals (one being the Job Holder) working at other). Given the nature of the work, the noise levels and the requirement to work, the No Reads station, it almost always meant that it was because there was a high volume of there was limited opportunity for the Comparator to have more than a quick "chat"" cases to be processed at the No Reads station meaning the Job Holder and his colleague to colleagues during his shift. " were too busy to speak to each other)." See generally IB1084 above. The evidence on this is that Mr Barnes had to report an agency colleague to the Team ImplemenƟng a move even when ReporƟng a colleague who refused to move to a Delete whole paragraph. Manager, after Mr Barnes asked him to move and he refused: see Barnes w/s §78, p.221. manager (this happened on one occasion) IB1241 576.12 Reasons: Something that happened once in 10 years is This incident is also addressed in the notes of the interview with Cs’ representatives at bundle 6, p.489, where Mr Barnes explains that when the colleague refused to move, “I did 528 of 548 go to [the] manager and they sorted it out”. The relevant point here, however, is that the JH The Job Holder dealt with this on one occasion by reporƟng it to a manager who attempted to implement the move himself before speaking to the Team Manager. resolved the situaƟon. The Job Holder did not resolve the situaƟon himself. See DACB notes of LD interview at ¶70 6/478. “Attempting to implement Implementing a move even when on one occasion a colleague refused to move.” Mr Barnes’ undisputed evidence on this point at w/s §75, p.220, is that he would need to Calculating Considering the number of cases on a Chute and the number of Chute Noting the number of cases on a Chute and the number look at both the number of cases on a Chute and the number of Chute pickers available, pickers for the purposes of making a move. of Chute pickers for the purposes of making a move. when deciding whether to ask a colleague to move. See e.g. the end of §75: “Based on how Reasons: We agree with Cs. “Calculating” is an busy the Chutes were, the number of colleagues on shift and their pick rate, I had to IB1945 576.18.1 determined whether it was appropriate to ask colleagues to move.” This did not involve any calculation. The Job Holder responded to blue lights and exaggeration. We have a semantic preference for screens that “showed how many products were queuing”, see ¶75 of Mr Barnes’ “noting” over “considering”. Rs’ proposed text should be accepted on that basis, viz.: statement at [10/220]. "Calculating the number of cases on a Chute and the number of Chute pickers for the purposes of making a move." Mr Chalk’s w/s at §§37-40, p.158, explains the reasons for and impact of the Red Prairie In 2018, the Red Prairie target was reset and subsequently became measured using In 2018, the Red Prairie target was reset and reset in 2018, i.e., its purpose was to bring timings up to date so that they more accurately the PACE method of work rate assessment. This change added even more pressure on subsequently became measured using the PACE reflected the time taken to do tasks, so that colleagues were not measured against processes the Job Holder and his colleagues to hit minimum shift targets. The reset involved an method of work rate assessment. The reset involved an that they might no longer be following. Mr Chalk also explains at w/s §39 that this usually update to the frequency and timing allowance settings in the CPM which relate to the update to the frequency and timing allowance settings although not always resulted in a reduction of the time allocated, because processes had preferred operating methods for certain tasks that warehouse colleagues undertake in the CPM which related to the preferred operating become more efficient over time. Mr Chalk’s oral evidence was consistent with that position. within the distribution centres. These revisions enabled Sainsbury’s to assess the methods for certain tasks that warehouse colleagues In those circumstances, Rs consider that the following text accurately reflects the evidence performance of its warehouse colleagues against more accurate performance targets undertake within the distribution centres. These (slightly adjusted from Rs’ original proposal). Rs propose: (referred to as “settings” or “standards”). In essence, the time allocated to colleagues revisions enabled Sainsbury's to assess the to complete tasks (i.e. to complete a pick) was reduced. The targets remained CPM “In 2018, the Red Prairie target was reset and subsequently became measured using the 100 / BIS 85, i.e. “Working at a comfortable speed, neither briskly nor with much performance of its warehouse colleagues against more PACE method of work rate assessment. The reset involved an update to the frequency and effort”. accurate performance targets (referred to as "settings" timing allowance settings in the CPM which relate to the preferred operating methods for or "standards"). They did not affect the overall amount certain tasks that warehouse colleagues undertake within the distribution centres. These of exertion required of the Job Holder and his IB1308 614 revisions enabled Sainsbury's to assess the performance of its warehouse colleagues against The reset did not add more pressure. It made targets more accurate rather than more colleagues. more accurate performance targets (referred to as "settings" or "standards"). The time onerous, see Mr Chalk at T16/90. The targets remained CPM 100 / BIS 85, which allocated to colleagues to complete tasks was generally (although not universally) reduced, describes the rate as “Working at a comfortable speed, neither briskly nor with much Reasons: We broadly agree with Cs. In his oral evidence which in turn made it harder to hit the minimum shift targets.” effort”, see Mr Chalk (who had been involved in setting the targets) at T16/88 and [T16/90] Mr Chalk confirmed that the change was “not T16/89. The British Industry Standard provides the best objective description of the rate to make the rate more onerous but to make each of the of performance. It is even slightly favourable to the respondents as the CPM 100 rate timings more accurate”. We also note Mr Chalk’s was in fact equivalent to slightly less than BIS 85. evidence that “we are talking about adjustments of seconds to the various tasks”. We are not satisfied that the change “made it [significantly] harder to hit the minimum shift targets” and we also note the lack of reference to any evidence from IB to that effect. Rs agree Cs’ proposed wording in red, that “the watch usually set out the best route for The Watch usually set out the best route for picking the products Hhowever, the Job The watch usually set out the best route for picking the picking the products”. Rs do not agree Cs’ proposed deletion of the words “skill and”. Mr Holder also had a discreƟon to ignore the picking order as set out on the Watch and products. However, the Job Holder also had a discretion Barnes’ undisputed evidence was that he would sometimes depart from the Watch’s picking was able to undertake picks in a diﬀerent order if he so wished. The Job Holder did this to ignore the picking order as set out on the Watch and order when he considered there was a more efficient way to pick products; and that would by scrolling through the Watch to determine the items of stock to be picked in total was able to undertake picks in a different order if he so be where he could see that “if the products were picked in a different order, I would not and using his skill and experience to determine the best picking order. There were two wished. The Job Holder did this by scrolling through the IB1329 633 need to restack the pallet or roll cage…The Watch often set out picking in the most logical factors in parƟcular which inﬂuenced the order in which the Job Holder carried out the Watch to determine the items of stock to be picked in order but sometimes I knew that picking products in the same area would save me time and picks mandated by the Watch: total and using his experience to determine the best when this was the case, I would depart from the picking order given to me by the Watch”. picking order. There were two factors in particular See Barnes w/s §87. Self-evidently, judgments about the best order in which to pick and the most efficient way of doing so in order to save time required a degree of skill and experience This does not appear to be in dispute, see Mr Barnes’ witness statement at ¶87 at which influenced the order in which the Job Holder (or a degree of skill based on experience, which is the same thing). [10/223]. This is a matter of experience rather than skill. carried out the picks mandated by the Watch. 529 of 548 Rs therefore propose: Reasons: The only remaining dispute appears to be as to “skill”, as to which we agree with Cs. Generally, the “The watch usually set out the best route for picking the products. However, the Job Holder extent to which something required ‘skill’ is not a also had a discreƟon to ignore the picking order as set out on the Watch and was able to undertake picks in a diﬀerent order if he so wished. The Job Holder did this by scrolling matter of objective fact about which could make a through the Watch to determine the items of stock to be picked in total and using his skill and finding; it is an assessment for the experts and stage 3. experience to determine the best picking order. There were two factors in parƟcular which inﬂuenced the order in which the Job Holder carried out the picks mandated by the Watch” The Job Holder was only permitted to apply shrink wrap to a pallet once the forks of The Job Holder was only permitted to apply shrink wrap the LLOP were clear of the pallet they were intending to wrap. The Job Holder was to a pallet once the forks of the LLOP were clear of the This dispute concerns the use of the adverb “rapidly” to describe the susceptibility of the required to find a suitable environment to shrink wrap pallets, which may have been pallet he was intending to wrap. The Job Holder was environment to change. The fact that the environment could change rapidly is supported by in an aisle or at the end by the Marshalling lanes. The environment was susceptible to unchallenged witness evidence at Barnes §99 (p.226), Lewis §33 (p.235), Sutton §40 (p.137). required to find a suitable environment to shrink wrap change rapidly, and as such the Job Holder had to be aware of his surroundings at all See also Ambient Manual Pick SWOP v 2 dealing with shrink wrapping (bundle 4 p 12) – "the pallets, which might have been in an aisle or at the end times as there were people and vehicles moving around, and also to maintain a environment can rapidly change so colleagues should always as far as possible, maintain an by the Marshalling lanes. The Job Holder had to be reasonable distance from the other activities going on around him. awareness of their surroundings and of other tasks being performed around them". In those aware of his surroundings at all times as there were circumstances, the use of the word “rapidly” is appropriate and should be accepted. people and vehicles moving around, and also to IB1426 701 Rs propose: The disputed words are opaque and unhelpful. They are understood to be a reference maintain a reasonable distance from the other to people and vehicles moving around, see Mr Barnes’ statement at ¶99 [10/226] That activities going on around him. "The Job Holder was only permitted to apply shrink wrap to a pallet once the forks of the can be set out clearly as in the above. LLOP were clear of the pallet they were intending to wrap. The Job Holder was required to Reasons: We agree with Cs. Their wording is an find a suitable environment to shrink wrap pallets, which may have been in an aisle or at the unembellished description of what IB had to do. end by the Marshalling lanes. The environment was susceptible to change rapidly, and as Adjectives and adverbs have a limited place in a job such the Job Holder had to be aware of his surroundings at all times, and also to maintain a reasonably far distance from the other activities going on around him." Mr Barnes’ unchallenged evidence on this at w/s §91, p.224, is: Conducting the pre-use check of the LLOP. This required knowledge to be able to Conducting the pre-use check of the LLOP. This required identify the various problems or faults that could be present , and knowledge of how knowledge to be able to identify the various problems “It has been explained to me that there is also a dispute about whether I needed to know how to use the Davis Derby system to complete the pre-use check and what to look out for. or faults that could be present, and knowledge of how to identify the faults the truck might have. I understand it is said I did not need to have this knowledge as the pre-use check list explained how to identify faults. The pre-use check list set to use the Davis Derby system to complete the pre-use out the elements I needed to check and prompted me to check all those elements. However, I check. The Job Holder needed to know how to carry out the checks and what to look out for, needed to know how to carry out the checks and what to look out for. Otherwise I wouldn’t as stated in his witness statement at ¶91 [10/224]. It did not involve any broader Reasons: We agree with Rs. This wording does not be able to identify the faults.” IB1495 731.3 knowledge of faults on a LLOP. suggest that IB was an expert in faults on LLOPs, merely See also unchallenged evidence to the same effect at Hart w/s §55, p.70, and Botten w/s that to use the checklist he had to be able to identify §51, p.257. Rs’ text should be accepted on that basis, viz.: whether or not a particular thing was faulty. We also "Conducting the pre-use check of the LLOP. This required knowledge to be able to identify note that virtually identical wording was accepted in the various problems or faults that could be present, and knowledge of how to use the Davis the JDs of the Rye Park Comparators, e.g. Noel Crowdy Derby system to complete the pre-use check." NC1190. Cs have added the word “potentially” to the sentence “If products were not picked accurately He worked as part of a continuous logistics process, where goods were received in He worked as part of a continuous logistics process, and in a timely manner, this [potentially] impacted on the rest of the product flow chain”. Rs Receipts at the warehouse, moved to the picking aisles, picked and marshalled, and where goods were received in Inbound at the do not understand that. If products are not picked accurately or in a timely way, that then distributed out to retail stores 24 hours per day, 7 days per week (apart from warehouse, fed into the automatic system, repacked obviously affects when (and potentially whether) they reach the shops. So it has an impact Christmas Day). The Job Holder's duties formed part of the process required to fulfil and/or stored, picked in EPS (or DPS), and distributed on the product flow chain. In that context, the word “potentially” is inappropriate. See also store orders accurately and on time. If products were not picked accurately and in a out to retail stores 24 hours per day, 7 days per week Mr Wilkinson’s unchallenged evidence at w/s §§65-84, and §§83-84 in particular, pp. 298- timely manner, this potentially impacted on the rest of the product flow chain. The (apart from Christmas Day). The Job Holder's duties IB2024

752.3.1 299. Job Holder did not know precisely what impact his pick rate had on the depot’s formed part of the process required to fulfil store performance day to day, but he was aware in a general sense of the impact of pick The fact that the JH may not have known precisely what impact he had on the depot’s orders accurately and on time. If products were not rates on product flow. performance is a different issue, which does not detract from the point about his role being picked accurately and in a timely manner, this part of a continuous logistics process. potentially impacted on the rest of the product flow Rs’ proposed text should be accepted on that basis, viz.: See Mr Barnes’ statement at para 23 [10/206]. chain. The Job Holder did not know precisely what effect the pace of the work in Inbound had on the 530 of 548 "He worked as part of a continuous logistics process, where goods were received in Receipts depot’s performance day to day, but he was aware in a at the warehouse, moved to the picking aisles, picked and marshalled, and then distributed general sense of the impact of pick rates on product out to retail stores 24 hours per day, 7 days per week (apart from Christmas Day). The Job flow, e.g he knew that if he and his colleagues all missed Holder's duties formed part of the process required to fulfil store orders accurately and on their targets then products would be delayed arriving time. If products were not picked accurately and in a timely manner, this impacted on the at stores. rest of the product flow chain." Reasons: there is no factual dispute here. Cs additional wording is possibly unnecessary, but is factually accurate and we have added an example taken almost word-for-word from IB’s statement. Rs propose: The Job Holder was aware that there was an expectaƟon that he would pick a certain The Job Holder was aware that there was an number of cases per shiŌ in order to meet the minimum “eﬀort” raƟng. This was a expectation that he would pick a certain number of “The Job Holder was aware that there was an expectation that he would pick a certain challenging target and required the Job Holder to pick at a consistent pace. The cases per shift in order to meet the minimum “effort” number of cases per shift in order to meet the minimum "effort" rating. This was a target was more demanding to reach following the RedPrairie reset in 2018 (in rating. This required the Job Holder to pick at a challenging target and required the Job Holder to pick at a consistent pace. The target was essence, the Ɵme allocated to colleagues to complete tasks (i.e. to complete a pick) more demanding to reach following the Red Prairie reset in 2018 (in essence, the time was reduced). allocated to colleagues to complete tasks (i.e. to complete a pick) was reduced).” Reasons: As to “challenging”, we agree with Cs. (As an IB2025

752.3.2 aside, we note that Cs used that word in a comparable The description of the minimum “effort” rating as setting a challenging target is supported by There should be no references to a “challenging rate”. The rate was described as evidence both from Mr Lewis (Lewis w/s §23, p.232) and from Mr Barnes himself (Barnes w/s “Working at a comfortable speed, neither briskly nor with much effort” by the BIS Index context in some of the Lead Claimants’ JDs, e.g. §84, p.222). Since the effect of the Red Prairie reset was, in general, to decrease the time itself which provides the only objective form of words. Even if an individual Job Holder Amanda Solts 3.6.34). It is similar issue to “mental allotted to tasks, that also had the effect of making targets more demanding to reach: see found it challenging to work at this speed, such a subjective comment is not relevant. A demand” in IB1084. As to Rs’ proposed last sentence, Chalk w/s §§37-40, p.158. In the circumstances, the above text should be accepted. job is not more valuable because an individual employee finds it difficult, nor less see IB1308. valuable because an individual finds it easy. The rates were not made more demanding following the reset in 2018, see above at IB1308 and the evidence of Mr Chalk at T16/90. Rs agree to add "occasionally" at the start of the paragraph, as proposed by Cs. However, Cs Occasionally Tthe Job Holder exercised his own judgement to determine the most Occasionally, the Job Holder exercised his own are wrong to insert proposed additional wording (“On these occasions”), suggesting that the appropriate route and order in which to pick items of stock (instead of following the judgement to determine the most appropriate route JH only needed to remember pick slot locations for products, when he was following his own direcƟons of the Watch), when it meant that he could avoid picking heavy items of and order in which to pick items of stock (instead of route rather than the Watch. As a matter of common sense, the JH needed to remember stock onto light items of stock. On these occasions the Job Holder needed to remember following the directions of the Watch), when it meant pick slots locations on all occasions, because his memory and knowledge of pick slot the pick slot locaƟons for products in order to be able to tell which products were that he could avoid picking heavy items of stock onto locations would determine whether he decided to follow the Watch’s recommended route in heavier and ﬂaƩer. The Job Holder had to remember that the pick slots could have light items of stock. The Job Holder needed to the first place. See also in this respect §87 of Mr Barnes’ w/s. changed. The Job Holder was required to exercise concentraƟon to ensure he remember the pick slot locations for products in order remained on the correct route given he would not have been following the to be able to tell which products were heavier and instrucƟons of the Watch. The exercise of determining the most appropriate route was Rs accordingly propose: further complicated by the one-way system and the presence of other obstacles within flatter. On these occasions the Job Holder had to the Ambient Chamber, including other pedestrian colleagues, other colleagues picking remember that the pick slots could have changed. The “Occasionally, the Job Holder exercised his own judgement to determine the most appropriate with LLOPs and Reach Trucks. Picking in this way entailed thinking, calculaƟng and Job Holder was required to exercise concentration to route and order in which to pick items of stock (instead of following the direcƟons of the interpreƟng the best order. ensure he remained on the correct route given he Watch), when it meant that he could avoid picking heavy items of stock onto light items of IB1581 752.9 would not have been following the instructions of the stock. The Job Holder needed to remember the pick slot locaƟons for products in order to be able to tell which products were heavier and ﬂaƩer. On these occasions The Job Holder had to Watch. The exercise of determining the most See above at IB1329. It is helpful to make clear that this is dealing only with those remember that the pick slots could have changed. The Job Holder was required to exercise appropriate route was further complicated by the oneoccasions on which he departed from the instrucƟons on the watch. concentraƟon to ensure he remained on the correct route given he would not have been way system and the presence of other obstacles within following the instrucƟons of the Watch. The exercise of determining the most appropriate the Ambient Chamber, including other pedestrian route was further complicated by the one-way system and the presence of other obstacles colleagues, other colleagues picking with LLOPs and within the Ambient Chamber, including other pedestrian colleagues, other colleagues picking Reach Trucks. Picking in this way entailed thinking, with LLOPs and Reach Trucks. Picking in this way entailed thinking, calculaƟng and calculating and interpreting the best order. interpreƟng the best order.” Reasons: This paragraph deals with the situation – with the occasions where – IB had decided not to follow the watch. It is not a description of what was involved in making that decision. It only makes sense (e.g. “The Job Holder was required to exercise concentration to 531 of 548 ensure he remained on the correct route given he would not have been following the instructions of the Watch.”) as a description of what was involved when IB had decided not to follow the watch. Application of the “75% rule” required numeracy skills for the reasons at IB392 and IB613 The Job Holder was required to determine whether there were approximately 75% of The Job Holder was required to decide whether there above, although an approximate estimate was “good enough”. undamaged products in the case in order to ensure that he complied with the rule. He were approximately 75% of undamaged products in the was required to be accurate in his calculaƟons and use his used basic numeracy skills case in order to ensure that he complied with the rule. to do so. IB2005 752.13.2 He used numeracy skills to do so. “The Job Holder was required to calculate determine the correct whether there were approximately 75% figure of undamaged products in the case in order to ensure that he Reasons: As for IB392. complied with the rule. He was required to be accurate in his calculations and use his used This uses only the most basic numeracy skills and it required approximately 75%, rather numeracy skills to do so.” than accuracy. The disputed text is an analogy which accurately conveys the nature of the warehouse The Ambient Chamber can be likened to a big tin shed which heats up in the summer The Ambient Chamber heats up in the summer and gets building and the way it responds to changes in heat, and is supported by the witness and gets colder in the winter. colder in the winter. evidence. See e.g. Botten w/s §84, p.263; Barnes w/s §15, p.205. Cs’ formulation is true of any building at all, and says nothing about the specific nature of the warehouse. IB1597 755 Reasons: We agree with Cs. A simile is not something The flowery language adds nothing to the factual statement. we can find as a matter of objective fact. Rs therefore consider that their disputed text should be accepted, viz.: “The Ambient Chamber can be likened to a big tin shed which heats up in the summer and gets cold in the winter.” In the summer, the Ambient Chamber was very hot could be hot, and could feel felt In the summer, the Ambient Chamber could be hot, and especially hot during a shift of picking, which involved physical exertion throughout could feel especially hot during a shift of picking, which The disputed text accurately reflects the nature of the environment: see e.g. Lewis §10, the shift. The Job Holder was able to wear shorts and a t-shirt, but needed to wear his involved physical exertion throughout the shift. The Job p.229, Barnes §15, p.205. “Warmer” is an inadequate descriptor in this context, which says hi vis vest on top, as well as wear steel toe capped boots and picking gloves. nothing meaningful about the nature of the environment (as it is absolutely obvious that a Holder was able to wear shorts and a t-shirt, but building will tend to be “warmer” in the summer; the question is how much warmer). Rs’ needed to wear his hi vis vest on top, as well as wear proposed text should be accepted accordingly, viz.: steel toe capped boots and picking gloves. The “very hot” is evaluative and meaningless in context and adds nothing to the factual IB1598 756 ”In the summer, the Ambient Chamber was very hot, and felt especially hot during a shift of statement. The evaluative language adds nothing to the factual statement. It was never Reasons: We agree with Cs. We are not satisfied that it picking, which involved physical exertion throughout the shift. The Job Holder was able to so hot as to cause the respondents to measure the temperature (otherwise figures would be hot, or very (or especially) hot, every day of wear shorts and a t-shirt, but needed to wear his hi vis vest on top, as well as wear steel toe would doubtless have been disclosed). every summer. There is no evidence as to what the capped boots and picking gloves.” temperatures were (e.g. x % of the time it was above y degrees), and “very” would be meaningless. There was an extreme variation of temperature when the Job Holder went from There was a variation of temperature when the Job picking in the Ambient Chamber in the summer, which made him sweaty, to Holder went from picking in the Ambient Chamber in The adjective “extreme” accurately describes a variation in temperature between a Marshalling a DU to a Marshalling Lane in the Chill Chamber at 3 degrees celsius. the summer, which made him sweaty, to Marshalling a warehouse temperature, which could be in the 30s, and a temperature of 3 degrees centigrade. It also reflects the experience of both jobholders: see Barnes w/s §16, p. 205; DU to a Marshalling Lane in the Chill Chamber at 3 IB1603 761 Lewis w/s §12, p.230. On that basis, Rs’ formulation should be accepted, viz.: degrees celsius. “Extreme” is evaluative and adds nothing to the factual statement. “There was an extreme variation of temperature when the Job Holder went from picking in Reasons: We agree with Cs. the Ambient Chamber in the summer, which made him sweaty, to Marshalling a DU to a Marshalling Lane in the Chill Chamber at 3 degrees celsius.” Rs propose the following text: Picking within the Ambient Chamber also gave limited opportunity for social Picking within the Ambient Chamber gave limited interacƟon. Due to the pressure to meet the shiŌ target and the "eﬀort" raƟng target opportunity for social interaction. Due to the “Picking within the Ambient Chamber gave limited opportunity for social interaction also each shiŌ, and the nature of the work itself (i.e. moving from one locaƟon to another requirement to work at a consistent pace and the IB1627 had the potential to be isolating. Due to the pressure to meet the shift target and the whilst operaƟng the LLOP), the Job Holder could not generally chat with his colleagues nature of the work itself (i.e. moving from one location "effort" rating target each shift, and the nature of the work itself (i.e. moving from one (aside from brief pleasantries or an occasional quick chat or where necessary for the to another whilst operating the LLOP), the Job Holder location to another whilst operating the LLOP), the Job Holder could not generally chat with performance of the role). could not generally chat with his colleagues, aside from his colleagues (aside from where necessary for the performance of the role).” where necessary for the performance of the role or a 532 of 548 quick chat when there was more than one collegue at a The disputed phrase “gave limited opportunity for social interaction” is consistent with both There could be brief pleasantries or a quick chat, see Mr SuƩon at ¶48 [10/138]. The pick slot. Mark Lewis’ and Ian Barnes’ evidence. See Lewis w/s §18, p. 231, Barnes w/s §20, p. 206. nature of the target at CPM100 / BIS 85 was not a substanƟve cause of any limited opportunity for social interacƟon. Reasons: Brief pleasantries are not ‘chats’. We are not See also Mr Sutton’s oral evidence that the only time when colleagues could potentially satisfied that social interactions were limited by any speak when picking in ambient would be when they crossed (and then, they would obviously objective pressure to meet shift targets or the effort be moving): transcript, 16 July, p.70. rating target each shift. We have borrowed “the requirement to work” from agreed wording in IB450. 533 of 548 Comparators – Mark Lewis – Decision Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS Rs propose: The Job Holder may be called to change tasks during the middle of a shift. For The Job Holder was sometimes required to change tasks “The Job Holder may even be called to change tasks during the middle of a shift at example, the Job Holder may originally be deployed to pick in the Ambient Chamber during the middle of a shift at little or no notice. He little or no notice. He estimates that this happened around four to five times per for a shift but could be called to undertake ambient receipts if operational needs estimates that this happened around four to five times per month. For example, the Job Holder may originally be deployed to pick in the Ambient required it. Such changes are at the sole discretion of management. He estimates month. Usually, this would be from one task in the Chamber for a shift, but he could be selected to move to Transhipments if operational that this happened around four to five times per month. Ambient Chamber to another task in the Ambient need requires it. Such changes are at the sole discretion of management. As a result, Chamber. Such changes are at the sole discretion of the Job Holder has to be prepared to change tasks at short notice.” The frequency with which the JH was asked to change tasks is accepted but as management. As a result, the Job Holder had to be indicated at para 6 of Mr Lewis’ statement [10/228] the change in tasks would ML98 50 prepared to change tasks at short notice. Mr Lewis stated in interview that he was not asked to change tasks in the middle of a generally be from one part of the Ambient Chamber to another e.g. ambient picking shift “often”: ML/375, 427. His w/s explains what he meant by that, viz., that he was to ambient receipts rather than the change being a move into e.g. Transhipments asked to change tasks during a shift about four to five times a month: ML w/s §6. Mr which is part of the Frozen Chamber. See also the evidence of Mr Sutton at T16/64/19 Reasons: there does not appear to be any factual dispute Sutton has indicated that he considers this a realistic estimate: Sutton w/s §31. Mr – T16/65/10 here. Our wording accurately reflects Mr Sutton’s evidence Sutton was not challenged on that evidence. “Four to five times per month" is a more at [T16/64-65]. precise and useful way of explaining what is meant by “not often”. In those circumstances, the above text should be accepted. Rs propose the following: In addition, and as mentioned in paragraph 50 above, the Job Holder could be In addition, and as mentioned in paragraph 50 above, the “In addition, and as mentioned in paragraph 50 above, the Job Holder was subject to moved between these tasks at short notice during the middle of shifts as required by Job Holder could be moved between these tasks at short being could be moved between these tasks at short notice during the middle of shifts operational demand. The tasks he was moved to are generally limited to the notice during the middle of shifts as required by as required by operational demand. This happened around four to five times a month. activities set out in paragraph 56. operational demand. This did not happen often and t The tasks he was moved to were generally limited to ML117 58 the activities set out in paragraph 56. . It was rare that the Job Holder was asked to The Rs’ proposed wording is repetitious. There is not much between the parties on Reasons: There is no need to repeat the information in move between different Chambers during a shift.” the wording but Cs’ wording is sufficient. ML98. See ML98 above as regards the replacement of “not often” with the more precise descriptor “four to five times per month”. Mr Sutton’s oral evidence was that there would “on average” be 1-2 people at each At any one time there may have been up to 40 pickers in the Ambient Chamber At any one time there might have been up to 40 pickers in pick slot, but that there could be up to 3-4 colleagues at a pick slot: see also Sutton using MHE per shift, with another 8 colleagues either operating Reach Trucks or the Ambient Chamber using MHE per shift, with another 8 w/s §§36-38, p.136. His w/s explains that this could happen either at busy times carrying out replenishment duties. The ambient picking area is well spread out as colleagues either operating Reach Trucks or carrying out (especially Christmas), or because of the popularity of a product: w/s §38. That is there are 4,196 pick slots and long aisles going from AA up to AZ, and starting again replenishment duties. The ambient picking area was well consistent with Mr Lewis’s evidence at w/s §19 (p.231) that there could be up to four from BA to BQ (see Figure 3 and 4). Most of the time, the Job Holder would be spread out as there were 4,196 pick slots and long aisles other people beside him at a pick slot. There is no contrary evidence. In those picking in an aisle by himself, although at times there could be congestion with up going from AA up to AZ, and starting again from BA to BQ circumstances, Rs propose the text below: to four other colleagues picking in the same aisle. (see Figure 3 and 4). Most of the time, the Job Holder would be the only picker at a particular pick slot, although “At any one time there may have been up to 40 pickers in the Ambient Chamber using The fact that most of the time there was one person picking at any given pick slot is MHE per shift, with another 8 colleagues either operating Reach Trucks or carrying supported by para 48 of Mr Sutton’s statement [10/138] and his evidence at at times there could be congestion, with up to four other out replenishment duties. However, The ambient picking area is well spread out and T16/67/6-24. colleagues picking in the same aisle as the job holder, right ML138 73 not congested as there are 4,196 pick slots and long aisles going from AA up to AZ, next to him. and starting again from BA to BQ (see Figure 3 and 4). However, congestion in the aisles was a regular occurrence and the Job Holder commented that there could be Reasons: There seems to be some confusion between three to four other colleagues right next to him, picking.” numbers of people in aisles vs numbers at a particular pick slot. Our wording reflects both ML’s written evidence and Mr Sutton’s oral evidence. Rs’ “regular occurrence” is unhelpful, given we have no idea about regularity. All we know – all everyone seems to agree on – is what happened most of the time. The potential for high temperatures during the summer months is specifically identified The temperature within the Ambient Chamber fluctuates with the exterior The temperature within the Ambient Chamber fluctuated ML147 80 as a hazard in Sainsbury’s risk assessments: see e.g. 3/1/65. Mr Lewis has in terms temperature. Therefore, during the winter months, the Ambient Chamber is with the exterior temperature. Therefore, during the stated that the ambient chamber “felt like being in a greenhouse as it could be stifling generally colder (due largely to the fact that there are large doors which must 534 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS hot in the summer months, and this could be very unpleasant”: w/s §10, p.229. The remain open during parts of the day for unloading and loading Ambient goods winter months, the Ambient Chamber was generally wording should appropriately capture the essence of the temperature concern, which from/into HGV lorries). The three doors by the Canopy area are each 4.9 meters high colder (due largely to the fact that there were large doors the simple descriptor “hot” does not do. In those circumstances, it is appropriate to and 4.5 meters wide, whereas each loading bay door is 2.6 meters high and 2.35 which had to remain open during parts of the day for refer to Mr Lewis’s own description of the chamber as potentially being “stifling”. meters wide. During the summer months, the Ambient Chamber is generally warm unloading and loading Ambient goods from/into HGV and can be hot. In fact, the Job Holder described that it could be “stifling” hot in the lorries). The three doors by the Canopy area were each 4.9 Rs accordingly propose: Ambient Chamber during the summer months. meters high and 4.5 meters wide, whereas each loading bay door was 2.6 meters high and 2.35 meters wide. “The temperature within the Ambient Chamber fluctuates with the exterior The wording in red should be deleted either because it is evaluative and adds nothing During the summer months, the Ambient Chamber was temperature. Therefore, during the winter months, the Ambient Chamber is generally of use to the paragraph (that being the case in respect of the use of the word “large”) colder (due largely to the fact that there are very large doors which must remain open or because the job description should set out facts rather than recounting the generally warm and could be hot. during parts of the day for unloading and loading Ambient goods from/into HGV subjective opinion or description provided by the JH (here the description of lorries). The three doors by the Canopy area are each 4.9 meters high and 4.5 meters conditions in summer months as “stifling”). The job is not made more or less valuable Reasons: We largely agree with Cs. We have the doors’ wide, whereas each loading bay door is 2.6 meters high and 2.35 meters wide. , and because an individual Job Holder finds conditions particularly uncomfortable or is dimensions so any adjective to describe their size is even During the summer months, the Ambient Chamber is generally very warmer and can untroubled by them. less necessary than it would otherwise be. ML’s subjective be extremely hot. In fact, the Job Holder described that it could be “stifling” hot in the feelings about how hot it was says nothing useful about how Ambient Chamber during the summer months. In fact, the Job Holder described that it objectively hot it was. (It is commonplace for individuals’ could be “stifling” hot in the Ambient Chamber during the summer months.” perceptions of the temperature of a room to differ completely). In the absence of recorded data, we cannot sensibly make findings about this. Mr Chalk explained in oral evidence and at §§22-25 of his w/s (pp. 155-156) that the The Job Holder’s overall performance (“effort”) was determined as a function of the The Job Holder's overall performance ("effort") was target was 100CPM, which equated to 83.3 on the British Standard Performance volume of stock moved and the amount of distance travelled around the warehouse. determined as a function of the volume of stock moved index. In those circumstances, Rs propose the following wording: These factors are aggregated into a number, and the Job Holder had a minimum and the amount of distance travelled around the target number of 100 CPM (which equates to just under 85 on the British Industry warehouse. These factors were aggregated into a number, “The Job Holder's overall performance ("effort") was determined as a function of the Standard) to meet by the end of each shift. British Industry Standard 85 is described and the Job Holder had a minimum target number of 100 volume of stock moved and the amount of distance travelled around the warehouse. by the index as “Working at a comfortable speed, neither briskly nor with much CPM (which equated to 83.3 on the British Standard These factors are aggregated into a number, and the Job Holder had a minimum effort”. If the Job Holder scored below 100 CPM / 85 British Standard he was aware Performance Index, British Standard 85 being “Working at target number of 100 CPM (which equates to 83.3 British Industry Standard) to meet that he may be spoken to there would likely be a consequence (see paragraphs 90 a comfortable speed, neither briskly nor with much by the end of each shift. If the Job Holder scored below 85 100 CPM he was aware and 91). The Job Holder commented that there were occasions when he did not that he may be spoken to (see paragraphs 90 and 91). The Job Holder commented meet the minimum target on a given shift. effort”) to meet by the end of each shift. If the Job Holder ML154 85 that there were occasions when he did not meet the minimum target on a given shift.” scored below 100 CPM he was aware that he might have The British Industry Standard provides the best objective description of the rate of been spoken to (see paragraphs [90 and 91]). The Job performance, which Mr Chalk (who had been involved in setting the targets) agreed Holder commented that there were occasions when he did used the description of “Working at a comfortable speed, neither briskly nor with not meet the minimum target on a given shift. much effort”, see T16/88 and T16/89. Reasons: There is no discernible factual dispute here. Given the moratorium on performance management from 2012, there were no likely Including the British Standard wording is potentially consequences for individual underperformance beyond a conversation. helpful. Mr Sutton’s w/s explains at §32, p.135, that all colleagues could see what their pick To meet the “effort” target of 85 some warehouse staff keep a regular check of All work colleagues could view the level of their own and target was by looking at the CPM light board and screens. Mr Lewis also explains at screens( There are “Colleague Performance management screens” or “CPMs”), their colleagues' performance at any time by checking the w/s §22, p.232, that there is, as would be expected, a range of how often colleagues situated in designated locations in the warehouse, including by a number of the CPM screens ("Colleague Performance management check their pick rate on the screen, depending (for instance) on whether colleagues printer stations and by the debit office and by the “Goods In” location. The CPM screen" or "CPM"), situated in designated locations in the are aiming for bonus. It is appropriate to reflect that range in a JD, given that the JD is screen sets out details of all colleagues’ performance against their daily effort target warehouse, including by a number of the printer stations, intended to reflect the nature of the job, rather than the individual doing it. Cs’ (100 CPM / 85 BIS) as a percentage (see Figure 11). Each work colleague is by the debit office and by the "Goods In" location. The ML155 proposal underplays the extent to which the screens are a means whereby colleagues identified on the CPM screen by a number. The JH confirmed that he very rarely CPM screen set out details of all colleagues' performance are reminded of their performance. checked the screens. against their daily effort target (100 CPM) as a percentage On that basis, Rs propose: The Rs’ have proposed the wording in red, or similar wording, that refers to what (see Figure 11). Each work colleague was identified on the other colleagues would do. The JD should reflect what the JH did – and that is the CPM screen by a number. There was no requirement to “All work colleagues could view the level of their own and their colleagues' consistent approach that has been taken across the JDs – including the claimant JDs. check screens. performance at any time by checking the CPM screens ("Colleague Performance 535 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS management screen" or "CPM"), situated in designated locations in the warehouse, Reasons: The point Rs seem to want to make – which is including by a number of the printer stations, by the debit office and by the "Goods that the screens were potentially a source of pressure – is In" location. The CPM screen sets out details of all colleagues' performance against made by the fact that the screens were there. The extent their daily effort target (100 CPM) as a percentage (see Figure 11). Each work to which different individuals felt pressurised will colleague is identified on the CPM screen by a number. Whereas some colleagues inevitably differ and must be irrelevant to the value of the check the screens several times per day, the Job Holder rarely checked the screens.” job; ditto how often individuals, including ML, checked screens in practice. Mr Collins’ evidence was that the fact that Sainsburys and the recognised unions could If the Job Holder repeatedly failed to meet the minimum “effort” target for reasons If the Job Holder repeatedly failed to meet the minimum not agree performance management processes for Hams Hall did not mean that other than unaccounted time, then that could also have resulted in the Job Holder “effort” target for reasons other than unaccounted time, Sainsbury’s could only address performance issues affecting the “effort” target having an informal conversation with the shift supervisor as to why the Job Holder then that could also have resulted in him having an informally; where they concerned unaccounted time they would be addressed as a had missed the minimum “effort” target for the shift. Some leeway in this regard informal conversation with the shift supervisor as to why conduct issue through Sainsbury’s conduct processes. See Collins §23, p.174, and his was allowed when the Job Holder was new to the job, but there was an expectation he had missed the minimum “effort” target for the shift. oral evidence to similar effect. See also Sutton §18 p.133. on the Job Holder that he would hit the “effort” target for every shift upon Some leeway in this regard was allowed when the Job completing the twelve-week probationary (learning-curve) period. Instances of Holder was new to the job, but there was an expectation Rs propose the following wording on that basis: unaccounted time for which there was no acceptable explanation could result in a that he would hit the “effort” target for every shift upon formal misconduct process (although the Job Holder was not subject to such a “If the Job Holder repeatedly failed to meet the minimum “effort” target for reasons process). completing the twelve-week probationary (learning-curve) ML161 91 other than unaccounted time, than then that could also have resulted in the Job Holder period. Instances of unaccounted time for which there was being “performance managed”. This comprised a brief relatively having an informal It is common ground that no formal action would be taken if there was an acceptable no acceptable explanation could have resulted in a formal conversation with the shift supervisor as to why the Job Holder had missed the explanation for unaccounted time. There is no evidence that this Job Holder was ever misconduct process (although the Job Holder was not minimum “effort” target for the shift. Some leeway in this regard was allowed when subject to such action (the only issue raised with him involving taking a break of the subject to such a process). the Job Holder was new to the job, but there was an expectation on the Job Holder that correct length but at the wrong time – see ML851). he would hit the “effort” target for every shift upon completing the twelve-week Reasons: There no longer seems to be a factual dispute probationary (learning-curve) period. Instances of unaccounted time could result in a here. Cs’ additional words in the last sentence may well be formal misconduct process.” unnecessary, but are accurate; their importance will be for Mr Chalk’s w/s at §§37-40, p.158, explains the reasons for and impact of the Red In 2018, the Red Prairie target was reset and subsequently became measured using In 2018, the Red Prairie target was reset and subsequently Prairie reset in 2018, i.e., its purpose was to bring timings up to date to more the PACE method of work rate assessment. This change added even more pressure became measured using the PACE method of work rate accurately reflect the time taken to do tasks, so that colleagues were not measured on the Job Holder and his colleagues to hit minimum shift targets. The reset involved assessment. The reset involved an update to the frequency against processes that they might no longer be following. Mr Chalk also explains at an update to the frequency and timing allowance settings in the CPM which relate and timing allowance settings in the CPM which related to w/s §39 that this usually although not always resulted in a reduction of the time to the preferred operating methods for certain tasks that warehouse colleagues the preferred operating methods for certain tasks that allocated, because processes had become more efficient over time. Mr Chalk’s oral undertake within the distribution centres. These revisions enabled Sainsbury’s to warehouse colleagues undertook within the distribution evidence was consistent with that position. In those circumstances, Rs consider that assess the performance of its warehouse colleagues against more accurate centres. These revisions enabled Sainsbury's to assess the the following text accurately reflects the evidence (slightly adjusted from Rs’ original performance targets (referred to as “settings” or “standards”). In essence, the time performance of its warehouse colleagues against more proposal). Rs propose: allocated to colleagues to complete tasks (i.e. to complete a pick) was reduced. ML163 93 accurate performance targets (referred to as "settings" or “In 2018, the Red Prairie target was reset and subsequently became measured using The reset did not add more pressure. It made targets more accurate rather than more "standards"). They did not affect the overall amount of the PACE method of work rate assessment. The reset involved an update to the onerous, see Mr Chalk at T16/90. The targets remained CPM 100 / BIS 85, i.e. exertion required of the Job Holder and his colleagues. frequency and timing allowance settings in the CPM which relate to the preferred “Working at a comfortable speed, neither briskly nor with much effort”, see ML154 operating methods for certain tasks that warehouse colleagues undertake within the above. Reasons: As for Ian Barnes IB1308. distribution centres. These revisions enabled Sainsbury's to assess the performance of its warehouse colleagues against more accurate performance targets (referred to as "settings" or "standards"). The time allocated to colleagues to complete tasks was generally (although not universally) reduced.” There is clear evidence that pick accuracy targets were an element of individual During the 2016 to 2017 financial year, an additional metric was introduced in order During the 2016 to 2017 financial year, an additional targets for the JH (and therefore bonus), which Cs have not challenged. For example, to be eligible for a bonus. in addition to the existing eligibility criteria as set out metric was introduced in order to be eligible for a bonus. the Bonus Detail Hams – Rate Cards (doc 31 in the Hams Hall II bundle, contained in above, the Job Holder was also required to achieve an accuracy rating of 99.7 or In addition to the existing eligibility criteria as set out ML168 98 the Excel Spreadsheets folder) shows that pick accuracy was added to the Ambience higher. above, the Job Holder was also required to achieve an Incentive Scheme with effect from the 2016/17 financial year – see the “bonus accuracy rating of 99.7 or higher. The Job Holder decided details” from 2016/2017 onwards, contained in the relevant Excel Spreadsheet. See 536 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS also/compare Mr Lock’s evidence that pick accuracy was an element of bonus The JH said that he did not go for a picking bonus (“Not with my knees, no way”), see that he would not attempt to achieve the bonus eligibility assessment at Rye Park, at w/s §28.7, Rs’ witness statements p.9.. The fact that Mr Interview Notes (DACB at 5/376 line 79) and (LD 5/399). The JH said that he was not criteria and he was not aware of the precise accuracy Lewis was unaware of them (see e.g. ML/399) is irrelevant. aware of the accuracy rating of 99.7 – see Interview Notes (DACB at 5/377 line 106) rating required. and (LD 5/396 – 4 entries from bottom of page). Rs understand that Cs do not challenge the accuracy of ML168 or ML169, but rather Reasons: There doesn’t seem to be a factual dispute here. dispute its relevance to the JD. However, as a matter of common sense, the metrics Whether this information is relevant to the value of the job for receipt of a bonus are relevant to the nature of the job. They help explain what will be for the experts and stage 3. standards the JH is encouraged to achieve, and therefore what pressures and expectations are placed upon him. Rs consider their proposed text should be accepted on that basis. Rs propose: "During the 2016 to 2017 financial year, an additional metric was introduced in order to be eligible for a bonus. in addition to the existing eligibility criteria as set out above, the Job Holder was also required to achieve an accuracy rating of 99.7 or higher." See the entry for ML168. During the 2019 to 2020 financial year, the bonus eligibility criteria changed slightly. During the 2019 to 2020 financial year, the bonus eligibility Now the Job Holder was required to achieve the relevant “effort” and accuracy criteria changed slightly. Now the Job Holder was required Rs propose: rating as set out above, but to achieve the relevant "effort" and accuracy rating as set "During the 2019 to 2020 financial year, the bonus eligibility criteria changed slightly. out above, but per individual shift, rather than as a weekly Now the Job Holder was required to achieve the relevant "effort" and accuracy rating See ML168 above regarding bonus and the fact that the JH was not aware of the ML169 99 average. Again, the Job Holder decided that he would not as set out above, but per individual shift, rather than as a weekly average." accuracy rating. attempt to achieve the bonus eligibility criteria. Reasons: As for ML168. This dispute concerns the use of the adverb “rapidly” to describe the susceptibility of The Job Holder was only permitted to apply shrink wrap to a pallet once the forks of The Job Holder was only permitted to apply shrink wrap to the environment to change. The fact that the environment could change rapidly is the LLOP were clear of the pallet they were intending to wrap. The Job Holder was a pallet once the forks of the LLOP were clear of the pallet supported by unchallenged witness evidence at Barnes §99 (p.226), Lewis §33 (p.235), required to find a suitable environment to shrink wrap pallets, which may have been he was intending to wrap. The Job Holder was required to Sutton §40 (p.137). See also Ambient Manual Pick SWOP v 2 dealing with shrink in an aisle or at the end by the Marshalling lanes. The environment was susceptible find a suitable environment to shrink wrap pallets, which wrapping (bundle 4 p 12) – "the environment can rapidly change so colleagues should to change rapidly, and as such the Job Holder had to be aware of his surroundings may have been in an aisle or at the end by the Marshalling always as far as possible, maintain an awareness of their surroundings and of other at all times, and also maintain a reasonably far distance from the other activities lanes. The environment was susceptible to change, and as tasks being performed around them". In those circumstances, the use of the word going on around him. such the Job Holder had to be aware of his surroundings at “rapidly” is appropriate and should be accepted. all times, and also maintain a reasonably far distance from “Rapidly” is an evaluative word that adds nothing to the substance of the paragraph. ML290 the other activities going on around him. 180 Rs propose: "The Job Holder was only permitted to apply shrink wrap to a pallet once the forks of Reasons: We agree with Cs. the LLOP were clear of the pallet they were intending to wrap. The Job Holder was required to find a suitable environment to shrink wrap pallets, which may have been in an aisle or at the end by the Marshalling lanes. The environment was susceptible to change rapidly, and as such the Job Holder had to be aware of his surroundings at all times, and also maintain a reasonably far distance from the other activities going on around him." The deleted detail (text which Cs whish to delete) is undisputed evidence which is Sometimes the Marshalling lanes were not in the Ambient Chamber, in which case Sometimes the Marshalling lanes were not in the Ambient relevant to the nature of the environment and the effect of targets upon that the Job Holder needed to travel to the Chill Chamber to deposit the loaded DU in the Chamber, in which case the Job Holder needed to travel to environment. See Lewis w/s 13, p.230. The detail should be included on that basis. relevant Marshalling lane there. If he did so, he usually put on a coat to do so as it the Chill Chamber to deposit the loaded DU in the relevant was only three degrees celsius in the Chill Chamber. Sometimes the Job Holder Marshalling lane there. If he did so, he usually put on a coat "Sometimes the Marshalling lanes were not in the Ambient Chamber, in which case would not put a coat on as it was an inconvenience to take off the Watch and to do so as it was only three degrees celsius in the Chill ML320 198 the Job Holder needed to travel to the Chill Chamber to deposit the loaded DU in the Scanner only to put it on again and this was time wasted that affected his effort Chamber. In order to do so, he had to take off and then put relevant Marshalling lane there. If he did so, he usually put on a coat to do so as it was rating. However, the Job Holder always regretted not putting a coat on once he back on the Watch and Scanner. The Job Holder also had only three degrees celsius in the Chill Chamber. Sometimes the Job Holder would not entered the Chill Chamber due to the cold. The Job Holder also had to remember to to remember to deposit the DU in the marshalling lanes in put a coat on as it was an inconvenience to take off the Watch and Scanner only to deposit the DU in the marshalling lanes in the Chill Chamber lengthways (i.e. the put it on again and this was time wasted that affected his effort rating. However, the DUs did not need to be deposited widthways like they did when depositing them in the Chill Chamber lengthways (i.e. the DUs did not need to Job Holder always regretted not putting a coat on once he entered the Chill Chamber the Ambient Chamber). 537 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS due to the cold. The Job Holder also had to remember to deposit the DU in the be deposited widthways like they did when depositing marshalling lanes in the Chill Chamber lengthways (i.e. the DUs did not need to be The wording in red is superfluous commentary and adds nothing to the substance of them in the Ambient Chamber). deposited widthways like they did when depositing them in the Ambient Chamber)." the paragraph. Reasons: We agree with Cs. It is inconceivable that whether or not ML decided to put on a coat will affect the "Sometimes the Marshalling lanes were not in the Ambient Chamber, in which case value of the job. However, it is potentially relevant that the Job Holder needed to travel to the Chill Chamber to deposit the loaded DU in the putting on a coat involved taking off and putting back on relevant Marshalling lane there. If he did so, he usually put on a coat to do so as it was the watch and scanner. only three degrees celsius in the Chill Chamber. Sometimes the Job Holder would not put a coat on as it was an inconvenience to take off the Watch and Scanner only to put it on again and this was time wasted that affected his effort rating. However, the Job Holder always regretted not putting a coat on once he entered the Chill Chamber due to the cold. The Job Holder also had to remember to deposit the DU in the marshalling lanes in the Chill Chamber lengthways (i.e. the DUs did not need to be deposited widthways like they did when depositing them in the Ambient Chamber)." Rs suggest the following text: The Job Holder was subject to a significant amount of used physical effort when The Job Holder used physical effort when manually picking “The Job Holder was subject to a significant amount of physical effort when manually manually picking items of stock from a pick slot where the weight of stock items items of stock from a pick slot where the weight of stock picking items of stock from a pick slot where the weight of stock items varied, with varied, with the average weight being 6 kg, the minimum weight being 800g and items varied, with the average weight being 6 kg, the the average weight being 6 kg, the minimum weight being 800g and the maximum the maximum weight being but could have weighed up to 20 kilograms per case of minimum weight being 800g and the maximum weight up weight but could have weighed up to being 20 kilograms per case of products. The Job products. The Job Holder typically picked a high volume of approximately 1,200 to 20 kilograms per case of products. The Job Holder Holder typically picked a high volume of approximately 1,200 cases per eight hour cases per eight hour shift, weighing a total of around 7.2

7.1 tons (see paragraphs typically picked approximately 1,200 cases per eight hour shift, weighing a total of around

7.2 tons (see paragraphs 77 above) so it was a 77 above) so it was a significantly fatiguing the task, and required physical strength, shift, weighing a total of around 7.2 tons (see paragraphs significantly fatiguing the task, and required physical strength, stamina and stamina and endurance. The Job Holder described the work as very taxing 77 above) so the task required physical strength, stamina endurance. The Job Holder described the work as very taxing physically. “ physically. and endurance. Rs’ proposed text is undisputed, relevant to the nature of the work, and more precise The crossed-out wording in red is evaluative and/or subjective and adds nothing to than Cs’ formulation. It should be accepted accordingly: the substance of the paragraph. The Cs have agreed deletions to wording of this sort Reasons: To a lawyer, “significant” means more than de (1) The physically highly taxing nature of the work as described by Mr Lewis as in the claimant JDs. minimis – which goes without saying here. If Rs are well as others does not appear to be disputed – see e.g. Lewis §42, p. 237; meaning to use it to mean ‘a lot of’ then it it is evaluative. ML407

229.1 (2) There is no dispute about the figures of 1,200 cases over an eight hour shift, 1,200 cases @ 6kg = 7.086 tons and so the figure of 7.2 tons used by R is not an As to 7.2 vs 7.1 tonnes, Cs have agreed 7.2 tons in weighing around 7.2 tons. See e.g. Botten §74, p.261. appropriate approximation. paragraph 77 and the job description should be internally consistent. The difference between 7.2 and 7.1 tons is anyway assuredly not going to make a difference to the job evaluation. As to the last sentence: that ML may have found it taxing does not mean that it was so objectively; there is anyway no objective scale of how taxing something is; a finding that he described it in that way would be meaningless; how physically demanding the job was will be for the experts and stage 3. (This is not dissimilar to “stifling hot” in ML147). Mr Sutton’s evidence on this at w/s §44, Rs’ witness statement bundle p.138, was To ensure appropriate stacking technique, the Job Holder was required to pick items To ensure appropriate stacking technique, the Job Holder unchallenged. He stated: to form a solid base which usually consisted of items which were heavier than the was required to pick items to form a solid base which “Therefore, to achieve a good base for the rest of the products, the colleagues would 6kg average. Lifting this amount of weight was physically demanding and required usually consisted of items which were heavier than the 6kg start off any pick by picking heavy items that formed an even solid base. This was physical strength, stamina and endurance. average. Lifting this amount of weight required physical often a few cases of cans of beer/soft drink or tinned food, and these types of cases strength, stamina and endurance. are on the heavier side, i.e. getting close to the 20 kg mark”. The crossed-out wording in red is evaluative and/or subjective and adds nothing to ML408

229.2 the substance of the paragraph. The Cs have agreed deletions to wording of this sort Reasons: We broadly agree with Cs. That this was a job On that basis, Rs propose the following as accurately reflecting the evidence: in the claimant JDs that made physical demands on ML goes without saying. “To ensure appropriate stacking technique, the Job Holder was required to pick items How physically demanding it was will be for the experts to form a solid base. These would consist of heavier items, and would often be cases and stage 3. of canned drink or food, which would weigh approaching 20 kg. Lifting this amount of 538 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS weight was physically demanding and required physical strength, stamina and endurance.” Rs propose the following (see in particular the added text in purple, which Cs wish to The performance management regime meant that The Job Holder was required to The Job Holder was required to operate at a consistent delete): operate at a consistent pace of work. The Watch also set out the estimated time it pace of work and to ensure that he met the shift target “The performance management regime meant that the Job Holder was required to should have taken the Job Holder to build a DU. The Job Holder was therefore and effort rating at the end of every shift. The Watch also operate at a consistent pace of work to ensure that he met the shift target and effort required to meet target and pick accurately, with consistent concentration, set out the estimated time it should have taken the Job rating at the end of every shift. The Watch also set out the estimated time it should including operating the LLOP, picking cases, shrink wrapping and Marshalling built Holder to build a DU. The Job Holder was therefore have taken the Job Holder to build a DU. The Job Holder was therefore required to DUs. required to meet target and pick accurately, with meet target and pick accurately, with consistent concentration, including operating consistent concentration, including operating the LLOP, the LLOP, picking cases, shrink wrapping and Marshalling built DUs.” The wording in red is deleted because there was no performance management picking cases, shrink wrapping and Marshalling built DUs. regime from summer/autumn 2012 – see e.g. para 22 of Mr Collins’ statement at ML446 233.01 There is much undisputed evidence that the JH was required to work at a consistent [10/173]. pace in order to ensure that he met the shift target and effort rating: see e.g. Chalk Reasons: there was indeed no performance management w/s §§22-26, pp. 155-156 (explaining the use of effort rating); §41, pp.158-159 regime after 2012 and even when there was, it would have (explaining that the JH was required to operate at a consistent pace to achieve the been inaccurate to say that it was that regime which effort rating); Sutton w/s §71, p.142 (explaining the imposition of a shift target); §79, “required [ML] to operate at a consistent pace of work” – it p.144 (explaining that the JH was set shift and individual targets for each shift). was the targets that necessitated that. Rs’ suggested addition, slightly altered as we have altered it, is unobjectionable. Rs consider that their original wording should be accepted, with the qualification that This also applied to the taking of breaks. The Job Holder’s break time was monitored This also applied to the taking of breaks. The Job Holder's disciplinary action was informal, viz. Rs propose: by the Red Prairie system. If the Job Holder took a longer break than he was entitled break time was monitored by the Red Prairie system. If the to he could have faced disciplinary action. In fact, the Job Holder was spoken to Job Holder took a longer break than he was entitled to he “This also applied to the taking of breaks. The Job Holder's break time was monitored subject to disciplinary action during the Relevant Period in respect of an allegation could have faced disciplinary action. The Job Holder was by the Red Prairie system. If the Job Holder took a longer break than he was entitled that he had taken an unofficial break. of taking a break outside of 17:30 – 19:00 once subject to informal disciplinary action during the to he could have faced disciplinary action. In fact, the Job Holder was subject to time slot. Relevant Period for taking a break outside of a 17:30 – informal disciplinary action during the Relevant Period in respect of an allegation that 19:00 time slot. he had taken an unofficial break.” Mr Collins confirmed in his evidence that the document at [5/371] – which is the only ML451 233.06 evidence relied on by the Rs in support of the suggestion that the JH has been the The JH was subject to informal disciplinary action during the RP in respect of an subject of disciplinary action for unaccounted time – does not relate to an “unofficial Reasons: “In fact” suggests a connection between the third allegation that he had taken an unofficial break. Having a recorded conversation with break” because Mr Lewis did not take an additional break, he just took his break at and fourth sentences which there isn’t; the conversation a colleague, which is recorded on a recorded on a colleague concern form at ML/371, the wrong time. Mr Collins also confirmed that Mr Lewis was not subject to any sort on 11/9/19 did not concern taking a longer break that ML is properly characterised as informal disciplinary action, particularly because a of disciplinary action in relation to this issue relating to his breaks: see T16/110/7 – was entitled to. We agree with Rs about “informal repetition can lead to formal action. See Collins w/s §36, pp. 176-177. T16/112/9 discriplinary action” vs “spoken to”. As to the second half of the last sentence, Cs wording is more precise. Rs propose: Carrying out all of the above in combination with the countervailing pressure to Carrying out all of the above whilst endeavouring to meet meet the performance management “effort” target of 85%. the meet the performance management "effort" target of “Carrying out all of the above in combination with the countervailing pressure to 100 CPM. meet the performance management "effort" target of 100 CPM (which equates to There is no “countervailing pressure” to meet the target of about 85 on the British 83.3 on the British Standard Performance Index).” Industry Standard. If this reference is to remain, it should be qualified by reference to Reasons: In context in the JD, this paragraph as drafted by the BIS description of this work rate: i.e. “in combination with the countervailing Rs suggests that the e.g. “Picking stock with regard to the This dispute concerns the issue of cognitive demands. Assuming that the Tribunal pressure to meet the performance management “effort” target of CPM 100 / BIS 85, safety of himself and others” was in conflict with the need 233.1212 considers it appropriate to deal with an issue of pure demand of this type, Rs consider which involved “Working at a comfortable speed, neither briskly nor with much ML469 to meet the effort target. We do not accept it was. There is (233.12.12) that it is appropriate and supported by the evidence to include an entry as regards the effort”” cognitive demands for picking to reflect the fact that the JH was required to exercise no need to say more about the effort target, given that the the cognitive demands listed in 233.12 in a context where he did not have time to relevant information is included elsewhere in the JD. “stop and think” without affecting his performance management targets. That materially increased the nature of the demands upon him. The fact that the need to carry out work at a consistent pace increased the challenge of ensuring that it was carried out accurately is supported by Mr Lewis’s witness evidence – see e.g. w/s §62, p.243. 539 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS Rs’ original text (below) should be accepted. It is important context for the JH’s work, He worked as part of a continuous logistics process, where goods were received in He worked as part of a continuous logistics process, where and it is supported by extensive unchallenged evidence in Martin Wilkinson’s w/s Receipts at the warehouse, moved to the picking aisles, picked and marshalled, and goods were received in Inbound at the warehouse, fed into about the effect of failure to pick products accurately and on time. See Mr Wilkinson’s then distributed out to retail stores 24 hours per day, 7 days per week (apart from the automatic system, repacked and/or stored, picked in w/s as a whole, and in particular Wilkinson w/s §§19-27, pp. 288-289, about the Christmas Day). The Job Holder's duties formed part of the process required to fulfil EPS (or DPS), and distributed out to retail stores 24 hours importance of pick accuracy for products being in stores; §§62-64, p.295 about the store orders accurately and on time. If products were not picked accurately and in a per day, 7 days per week (apart from Christmas Day). The importance of meeting pick targets; and §83, pp. 298-299, recording his agreement timely manner, this potentially impacted on the rest of the product flow chain. The Job Holder's duties formed part of the process required to with this specific text in the JD. The fact that the JH may not have known precisely Job Holder did not know precisely what impact his pick rate had on the depot’s fulfil store orders accurately and on time. If products were what impact he had on the depot’s performance is a different issue, which does not performance day to day, but he was aware in a general sense of the impact of pick not picked accurately and in a timely manner, this 233.31 detract from the point about his role being part of a continuous logistics process. rates on product flow. ML510 (233.3.1) potentially impacted on the rest of the product flow chain. Rs propose: The word “potentially” clarifies that there would not necessarily be an impact on Reasons: There is no real factual dispute here. “Potentially” product flow for all instances of inaccurate picking or picking that falls below the is clearly factually accurate. There is no substantial "He worked as part of a continuous logistics process, where goods were received in target. evidence as to whether ML did or did not know about the Receipts at the warehouse, moved to the picking aisles, picked and marshalled, and impact of his pick rate on performance. Our wording does then distributed out to retail stores 24 hours per day, 7 days per week (apart from The remaining wording in yellow is necessary to clarify the extent of the JH’s Christmas Day). The Job Holder's duties formed part of the process required to fulfil understanding of the impact of pick rates on the depot’s performance. not suggest he did. store orders accurately and on time. If products were not picked accurately and in a timely manner, this impacted on the rest of the product flow chain." Rs propose: The Job Holder was aware that there was an expectation that he would meet the The Job Holder was aware that there was an expectation minimum “effort” rating. This was a challenging target and required the Job Holder that he would meet the minimum “effort” rating. This “The Job Holder was aware that there was an expectation that he would pick a certain to pick at a consistent pace. The target was more demanding to reach following the required the Job Holder to pick at a consistent pace. number of cases per shift in order to meet the minimum "effort" rating. This was a RedPrairie reset in 2018 (in essence, the time allocated to colleagues to complete challenging target and required the Job Holder to pick at a consistent pace. The target tasks (i.e. to complete a pick) was reduced). Reasons: As to “challenging”, we agree with Cs. (As an was more demanding to reach following the Red Prairie reset in 2018 (in essence, the aside, we note that Cs used that word in a comparable time allocated to colleagues to complete tasks (i.e. to complete a pick) was reduced).” There should be no references to a “challenging rate”. The rate was described as 233.32 context in some of the Lead Claimants’ JDs, e.g. Amanda ML511 “Working at a comfortable speed, neither briskly nor with much effort” by the BIS (233.3.2) Solts 3.6.34). It is similar issue to “very taxing” in ML407. The description of the minimum “effort” rating as setting a challenging target is Index itself which provides the only objective form of words. Even if an individual Job supported by evidence both from Mr Lewis himself (Lewis w/s §23, p.232) and from Holder found it challenging to work at this speed, such a subjective comment is not As to Rs’ proposed last sentence, see ML163 above. Mr Barnes (Barnes w/s §84, p.222). Since the effect of the Red Prairie reset was, in relevant. A job is not more valuable because an individual employee finds it difficult, general, to decrease the time allotted to tasks, that also had the effect of making nor less valuable because an individual finds it easy. The rates were not made more targets more demanding to reach: see Chalk w/s §§37-40, p.158. In the demanding following the reset in 2018, see above at ML168 and the evidence of Mr circumstances, Rs’ proposed text should be accepted. Chalk at T16/90. It is clear from Sutton w/s §§108-110, p.151 that failure to meet accuracy targets The Job Holder had to pick accurately to ensure that no mistakes were made when The Job Holder had to pick accurately to ensure that no could have led to performance-related action for the JH, whether that was an items of stock were picked (in terms of both the product picked and the quantity mistakes were made when items of stock were picked (in informal conversation; the completion of a Colleague Concern Form; or ultimately, if picked), otherwise the wrong items of stock and/or the wrong quantity would have terms of both the product picked and the quantity picked), the issue did not resolve itself, conduct proceedings. On that basis, Rs propose the been sent to stores and this would impact on the service to the store and the otherwise the wrong items of stock and/or the wrong following: availability of goods in the store. The Job Holder had therefore to ensure that he quantity would have been sent to stores and this would followed the instructions on the Watch accurately, read the labels at the pick slot impact on the service to the store and the availability of “The Job Holder had to pick accurately to ensure that no mistakes were made when and paid attention at all times. Pick errors could be traced back to the Job Holder. goods in the store. The Job Holder had therefore to ensure items of stock were picked (in terms of both the product picked and the quantity Audits took place to identify why wrong stock had been picked which, prior to that he followed the instructions on the Watch accurately, picked), otherwise the wrong items of stock and/or the wrong quantity would have autumn 2012, could have resulted in performance related action for the Job Holder. 233.33 ML512 been sent to stores and this would impact on the service to the store and the The Job Holder had never been spoken to as part of an accuracy audit throughout read the labels at the pick slot and paid attention at all (233.3.3) availability of goods in the store. The Job Holder had therefore to ensure that he the Relevant Period. times. Pick errors could be traced back to the Job Holder. followed the instructions on the Watch accurately, read the labels at the pick slot and Audits took place to identify why wrong stock had been paid attention at all times. Pick errors could be traced back to the Job Holder. Audits The wording in yellow clarifies that there was no formal performance management picked which could have resulted in formal performancetook place to identify why wrong stock had been sent to a store picked which could after that time. related action for the Job Holder before Autumn 2012 and have resulted in performance-related action for the Job Holder if it was identified that informal action from then onwards. The Job Holder had he had made an error. The Job Holder had never been involved in or spoken to as part never been spoken to as part of an accuracy audit of an accuracy audit throughout the Relevant Period.” throughout the Relevant Period. 540 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS Reasons: Cs’ are right about lack of formal performance management from Autumn 2012, but Rs could still take informal action. Rs propose: The Job Holder was aware that if he failed to meet the minimum "effort" rating, a The Job Holder was aware that if he failed to meet the manager may speak to him and he may receive coaching to help him develop, but minimum "effort" rating, a manager might speak to him “The Job Holder was aware that if he repeatedly failed to meet the minimum "effort" that if the reason for failing to meet the "effort" rating, was due to unaccounted and he might receive coaching to help him develop, but rating, a manager might speak to him and he would initially might receive coaching to time, or if a manager identified unaccounted time through observation (as would that if the reason for failing to meet the "effort" rating was help him develop, but that if the reason for failing to meet the "effort" rating, was due necessarily be the case in Ambient Receipts, MUs and Transhipments) such conduct due to unaccounted time such conduct could lead to to unaccounted time, such levels of performance conduct could lead to formal could lead to formal warnings and ultimately potential termination of his 233.35 formal warnings and ultimately potential termination of ML514 warnings and ultimately potential termination of his employment.” employment. (233.3.5) his employment. The above text accurately reflects the position, i.e. that if when analysed the reason The wording in yellow has been added to make clear that in Ambient Receipts, MUs for a failure to meet the “effort” rating is properly characterised as conduct-related, and Transhipments unaccounted time would only be identified through observation Reasons: This is not a paragraph about how unaccounted the JH can be subject to formal disciplinary proceedings, and potentially to on the depot floor: see para 51 of Mr Collins’ statement at [10/179-180]. time could be identified and Cs’ proposed addition is termination of his employment. See Collins w/s §23, §31, pp. 173-175. unnecessary and inappropriate. The disputed text is an analogy which accurately conveys the nature of the warehouse The Ambient Chamber can be likened to a big tin shed which heats up in the summer The Ambient Chamber heated up in the summer and got building, and is supported by the witness evidence. See e.g. Botten w/s §84, p.263; and gets colder in the winter. colder in the winter. Barnes w/s §15, p.205. Cs’ formulation is true of any building at all, and says nothing about the nature of the warehouse. The flowery language adds nothing to the factual statement. Reasons: We agree with Cs. A simile is not something we ML542 can find as a matter of objective fact. "The Ambient Chamber can be likened to a big tin shed which heats up in the summer and gets cold in the winter." The disputed text in the paragraph below accurately reflects the nature of the In the summer, the Ambient Chamber could be hot was very hot, and could feel felt In the summer, the Ambient Chamber could be hot, and environment: especially hot during a shift of picking, which involved physical exertion throughout could feel especially hot during a shift of picking, which the shift. The Job Holder was able to wear shorts and a t-shirt, but needed to wear involved physical exertion throughout the shift. The Job "In the summer, the Ambient Chamber was warmer very hot, and felt especially hot his hi vis vest on top, as well as wear steel toe capped boots and picking gloves. Holder was able to wear shorts and a t-shirt, but needed during a shift of picking, which involved physical exertion throughout the shift. The to wear his hi vis vest on top, as well as wear steel toe Job Holder was able to wear shorts and a t-shirt, but needed to wear his hi vis vest on The “very hot” is evaluative and meaningless in context and adds nothing to the capped boots and picking gloves. top, as well as wear steel toe capped boots and picking gloves." factual statement. It was never so hot as to cause the respondents to measure the temperature (otherwise figures would doubtless have been disclosed) Reasons: We agree with Cs. We are not satisfied that it ML543 237 See e.g. Lewis §10, p.229. “Warmer” is an inadequate descriptor in this context, which says nothing meaningful about the nature of the environment (as it is absolutely would be hot, or very (or especially) hot, every day of obvious that a building will tend to be “warmer” in the summer; the question is how every summer. There is no evidence as to what the much warmer). The following text which Rs propose should be accepted accordingly: temperatures were (e.g. x % of the time it was above y degrees), and “very” would be meaningless. "In the summer, the Ambient Chamber was very hot, and felt especially hot during a shift of picking, which involved physical exertion throughout the shift. The Job Holder was able to wear shorts and a t-shirt, but needed to wear his hi vis vest on top, as well as wear steel toe capped boots and picking gloves." The adjective “extreme” accurately describes a variation in temperature between a There was an extreme variation of temperature when the Job Holder went from There was a variation of temperature when the Job Holder warehouse temperature, which could be in the 30s, and a temperature of 3 degrees picking in the Ambient Chamber in the summer, which made him sweaty, to went from picking in the Ambient Chamber in the summer, centigrade. It also reflects the experience of both jobholders: see Barnes w/s §16, p. Marshalling a DU to a Marshalling Lane in the Chill Chamber at 3 degrees celsius. which made him sweaty, to Marshalling a DU to a 205; Lewis w/s §12, p.230. Marshalling Lane in the Chill Chamber at 3 degrees celsius. ML548 242 “Extreme” is evaluative and adds nothing to the factual statement. "There was an extreme variation of temperature when the Job Holder went from picking in the Ambient Chamber in the summer, which made him sweaty, to Marshalling a DU to a Marshalling Lane in the Chill Chamber at 3 degrees celsius." 541 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS Rs propose the following text: The Job Holder communicated with colleagues and other parties about work related Picking within the Ambient Chamber gave limited matters when picking within the Ambient Chamber, the also had the potential to be opportunity for social interaction. Due to the requirement “Picking within the Ambient Chamber gave very limited opportunity for social isolating. Due to the pressure to meet the shift target and the “effort” rating target to work at a consistent pace and the nature of the work interaction also had the potential to be isolating. Due to the pressure to meet the each shift, and however given the nature of the work itself (i.e. moving from one itself (i.e. moving from one location to another whilst shift target and the "effort" rating target each shift, and the nature of the work itself location to another whilst operating the LLOP), the Job Holder had limited operating the LLOP), the Job Holder could not generally (i.e. moving from one location to another whilst operating the LLOP), the Job Holder opportunity to “chat” to colleagues during his shift (aside from brief pleasantries, an chat with his colleagues, aside from where necessary for could not generally chat with his colleagues (aside from where necessary for the occasional quick chat or where necessary for the performance of the role). the performance of the role or a quick chat when there was performance of the role).” more than one collegue at a pick slot. ML581 250 There could be brief pleasantries or a quick chat, see Mr Sutton at ¶48 [10/138]. The The disputed phrase “gave very limited opportunity for social interaction” is nature of the target at CPM100 / BIS 85 was not a substantive cause of any limited consistent with both Mark Lewis’ and Ian Barnes’ evidence. See Lewis w/s §18, p. 231, opportunity for social interaction. Reasons: Brief pleasantries are not ‘chats’. We are not Barnes w/s §20, p. 206. satisfied that social interactions were limited by any objective pressure to meet shift targets or the effort rating See also Mr Sutton’s oral evidence that the only time when colleagues could target each shift. We have borrowed “the requirement to potentially speak when picking in ambient would be when they crossed (and then, work” from agreed wording in IB450. they would obviously be moving): transcript, 16 July, p.70. The disputed text is relevant to the nature of the task, because the fact that this risk It is vital that the lock on dock process is followed for safety reasons, as this limits It was vital that the lock on dock process was followed for was a real one which had occurred in practice is material to the extent of hazard. See the risk of a driver moving/driving off with the lorry with a warehouse colleague safety reasons, as this limited the risk of a driver Mark Lewis w/s §§43-44, p.238, explaining that he was aware of this issue. inside it. If that happens, it can result in extremely serious injuries or even fatalities. moving/driving off with the lorry with a warehouse The Job Holder is aware that a driver has driven off with a colleague inside, colleague inside it. If that happened, it could result in It is inferred that Cs may propose deleting this text because it concerns something although reports that this was at a different depot. serious injuries or even fatalities. occurring at a different depot. However, the issue here is not the particular risk of an accident at Hams Hall per se, but the risk inherent in a specific task (i.e. unloading at a The word “extremely” is evaluative and adds nothing of substance to the paragraph. It Reasons: We agree that “extremely” add nothing of bay, using the “lock on dock” process) which took place in the same way across a is understood the be agreed by the Rs that incidents at other depots should be substance (particularly not when everyone agrees fatalities number of different depots. On that basis, the disputed text is relevant to the removed from the JD. demands of the task. were possible). As to the second sentence, it would be fair to give a relevant example, even from a different depot, to "It is vital that the lock on dock process is followed for safety reasons, as this limits show that the risk referred to was not merely theoretical, ML662 294 the risk of a driver moving/driving off with the lorry with a warehouse colleague but we do not know: whether at the other depot the same inside it. If that happens, it can result in extremely serious injuries or even fatalities. lock on dock process was followed; if it was, whether this The Job Holder is aware that a driver has driven off with a colleague inside, although was the reason why the driver drove off with the colleague reports that this was at a different depot. " inside; whether the colleague inside sustained any injury. In short, we don’t know if it is a relevant example. "It is vital that the lock on dock process is followed for safety reasons, as this limits the risk of a driver moving/driving off with the lorry with a warehouse colleague inside it. If that happens, it can result in extremely serious injuries or even fatalities. The Job Holder is aware that a driver has driven off with a colleague inside, although reports that this was at a different depot." The use of the terms “multiplication” and “mental arithmetic” to explain what the JH Basic arithmetic and multiplication to count product cases using either mental Basic arithmetic and multiplication to count product cases does when counting cases on pallets is appropriate, given the evidence at Lewis w/s arithmetic or a piece of paper, in order to identify differences between the quantity using mental arithmetic, and/or sometimes a piece of §47, p.239: as set out on the Watch and the reality of the load and to ensure that the correct paper, in order to identify differences between the “I was required to count the cases on each pallet to confirm the quality. To count the quantity is entered onto the warehouse system; quantity as set out on the Watch and the reality of the load products, I counted the number of products on the top layer and then, in my head, and to ensure that the correct quantity was entered onto multiplied those to get the total number of cases on the top layer. I would then count Mr Lewis sets out what he did at para 47 of his statement at [10/239]. It is fair to the warehouse system; ML761 341.26 the number of layers and multiply the number of cases on the top layer by the number describe this as “basic” arithmetic. of layers, to work out how many cases were on the pallet.” Reasons: There isn’t a real dispute here. It is fair and The reference to multiplication is superfluous. Rs propose: objectively accurate to describe what Mr Lewis says in his Mr Lewis says in the same para that he sometimes uses a piece of paper. statement as “basic arithmetic and multiplication”. "Arithmetic and multiplication to count product cases using mental arithmetic, in order to identify differences between the quantity as set out on the Watch and the 542 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS reality of the load and to ensure that the correct quantity is entered onto the warehouse system;" During the course of the working day, the Job Holder communicated with colleagues Delete whole paragraph. Rs’ proposed text in the JD (which Cs wish to delete in its entirety) is consistent with and other parties about work related matters, as detailed under Mental Demands Mark Lewis’ evidence. See Lewis w/s §18, p. 231. It is also supported by the evidence above. However, given the nature of the work, the noise levels and the requirement Reasons: We cannot see how this belongs in an of Mr Sutton at w/s §54, p.139: to work at a consistent pace, there was very limited opportunity for the Job Holder “Environmental Demands” section. The relevant to simply “chat” to colleagues during his shift. information about opportunities to chat etc is anyway “When working on Receipts, communication between colleagues was largely limited already in the JD at ML581. to work-related matters – there was very little opportunity for social discussions due This paragraph comes under environmental demands. Mr Sutton confirmed in to the nature of the work and the need to work ata consistent pace. In addition, the evidence that the noise level in this area did not prevent colleagues from chatting: see noise levels… made it very hard to hear and any conversations were kept as brief as T16/69/2 -T16/70/17. possible.” Mr Sutton was asked about the opportunity for social interaction in Ambient Receipts at transcript Day 16, pp. 69-70. It was suggested to him that sometimes people could ML981 346.12 have a chat. He said that was right, but also said that (i) there would be noise from colleagues working with PPT and LLOPs; (ii) there would be managers walking around, including shift managers and team managers, who would tell them to continue working; and (iii) people would not be working sufficiently closely to chat, unless they happened to cross. In the premises, his oral evidence was consistent with there being very limited opportunity to simply chat to colleagues during a shift. Rs’ proposed text should be accepted on that basis: "During the course of the working day, the Job Holder communicated with colleagues and other parties about work related matters, as detailed under Mental Demands above. However, given the nature of the work, the noise levels and the requirement to work at a consistent pace, there was very limited opportunity for the Job Holder to simply "chat" to colleagues during his shift." There is undisputed evidence that the effect of failing to invert pallets in a timely If pallets were not inverted Invert any pallets within a timely manner. , it delayed Delete whole paragraph. manner was as explained in the disputed text: see Lewis w/s §57, p.242, Sutton w/s products’ journey through the warehouse unnecessarily, which impacted on the rest §56, p.140. Mr Sutton was not challenged on that evidence in xx, and it should be of the product flow chain. Further, it caused congestion on the depot floor, which Reasons: In the JD this paragraph comes after “The Job accepted. affected the rate that unloading/receiving could be carried out (again, causing delays). Holder was required to operate at a consistent pace to Congestion on the depot floor also created additional hazards and difficulties for all ensure the appropriate flow of products in the warehouse Rs propose: MHE drivers (and pedestrians) as there was then limited room to manoeuvre and and this required mental effort for the duration of the reduced visibility. shift:”. What is in Rs’ wording may be right in general "If pallets were not inverted within a timely manner, it delayed products' journey terms – it is obvious that if lots of pallets are not inverted through the warehouse unnecessarily, which impacted on the rest of the product flow The suggested impact is inherently unlikely given that R accepts that ML potentially 367.041 chain. Further, it caused congestion on the depot floor, which affected the rate that only inverts one pallet on a shift (see CB5/157 para 348). This is not likely to cause any this will have knock-on effects and potentially could delay ML1081 (367.4.1) unloading/receiving could be carried out (again, causing delays). Congestion on the material impact to the flow of products or congestion on the depot floor. things. However, ss Cs’ point out, it is an agreed part of the depot floor also created additional hazards and difficulties for all MHE drivers (and JD – para 348 (originally 343) – that ML “may potentially pedestrians) as there was then limited room to manoeuvre and reduced visibility." have to invert one pallet on a shift”. It is fanciful to suggest that him failing to do that might realistically have all the consequences Rs’ suggest. And it is still more fanciful to suggest that the potential consequences of him and lots of other people (as it would have to be) not inverting pallets in a timely manner led to him expending mental effort. Rs propose: Further, the Job Holder was aware that Team Managers periodically walked the Further, the Job Holder was aware that Team Managers depot floor, watching the Job Holder and his colleagues’ pace of work. The Job periodically walked the depot floor, watching the Job 367.043 “Further, the Job Holder was aware that Team Managers periodically walked the Holder was aware that, if the Team Manager considered that the Job Holder was Holder and his colleagues’ pace of work. The Job Holder ML1083 (367.4.3) depot floor, watching the Job Holder and his colleagues' pace of work. The Job Holder not working at the required pace, this could result in an informal conversation was aware that, if the Team Manager considered that the was aware that, if the Team Manager considered that the Job Holder was not working where the Team Manager would question the reasons for the Job Holder’s pace and Job Holder was not working at the required pace, this at the required pace, this could result in an informal conversation where the Team he may receive coaching to improve his performance. If the pace was not at the 543 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS Manager would question the reasons for the Job Holder's pace and he may receive expected standard because of unaccounted time, such conduct could lead to a could result in an informal conversation where the Team coaching to improve his performance. If the pace of work was not at the expected formal disciplinary process. The Job Holder has never been spoken to about working Manager would question the reasons for the Job Holder’s standard because of unaccounted time, such conduct could lead to a formal at pace when working on the Inverter and has never been subject to disciplinary pace and he might receive coaching to improve his disciplinary process. If the Job Holder consistently worked below the expected pace action for unaccounted time. performance. If the pace was not at the expected standard rate and did not improve with support and coaching, this could lead to formal action. because of unaccounted time, such conduct could have led The Job Holder has never been spoken to about working at pace when working on the The wording added in yellow is accurate -see the submissions for ML451 above. to a formal disciplinary process. The Job Holder was never Inverter.” spoken to about working at pace when working on the Inverter. He was never subject to disciplinary action Mr Collins has explained in evidence that, although Sainsbury’s does not have a formal performance management process in place at Hams Hall, performance can be because of unaccounted time when working anywhere. dealt with either via informal conversations, or (to the extent that it can be categorised as conduct-related) via conduct processes. See Collins w/s §21-23, pp. Reasons: Rs’ case on Cs’ highlighted proposed words is not 173-174. known because they seem to have been introduced for the first time in closing submissions. Nevertheless, the wording Mr Lewis has been spoken to about working at pace, although he has not been appears to be accurate and puts what is said about spoken to when working on the inverter: see Lewis w/s §58, p.,242, and compare e.g. unaccounted time in part of the agreed wording into Lewis w/s §23, p.232. Rs’ text explaining that the JH was required to travel between the Ambient Chamber In addition, the Job Holder was required to frequently travel between the Ambient In addition, the Job Holder was required to travel and Chill Chamber when marshalling MUs (Merchandise Units, i.e. stock that should Chamber and the Chill Chamber because the marshalling lanes for MUs were frequently between the Ambient Chamber and the Chill be shipped directly to store once received), because the marshalling lanes for MUs generally within in the Chill Chamber (about 90% to 95% of the time). That often Chamber because the marshalling lanes for MUs were were in the Chill Chamber 90-95% of the time, is consistent with the unchallenged entailed a significant change in temperature during the summer months when the generally within in the Chill Chamber (about 90% to 95% of evidence, and it is not understood why Cs have deleted it. See Lewis w/s §59, p. 242, Ambient Chamber was stifling hotter whereas the Chill Chamber was temperature the time). That often entailed a change in temperature Sutton w/s §§57-59, p. 140. controlled at three degrees celsius. When moving into the Chill Chamber, the Job during the summer months when the Ambient Chamber Holder would usually put on a coat prior to entering the Chill Chamber, but he often was hot, whereas the Chill Chamber was temperature The evidence is clear that the JH would frequently need to travel between the did not to save time (which he said he always later regretted due to the cold). If it controlled at three degrees celsius. When moving into the Ambient Chamber and Chill Chamber, because the marshalling lanes for MUs were in was particularly warm in the Ambient Chamber, the Job Holder could be sweating the Chill Chamber 90-95% of the time. which increased the sensation of the cold when entering the Chill Chamber. Chill Chamber, the Job Holder would usually put on a coat prior to entering the Chill Chamber. Rs’ proposed text explaining that the JH would often not put on a coat when entering The deleted red text is evaluative and/or subjective and adds nothing of substance to the Chill Chamber in order to save time is accurate and relevant to the nature of the the paragraph. Reasons: We agree with Cs. See ML147 & ML320. job. As to accuracy, see Lewis w/s §§12-13, p.230. The text is relevant, because it ML1204 414 explains how the combination of performance monitoring and temperature could create additional environmental demand. Rs’ proposed original text (below) should be accepted on the above basis: "In addition, the Job Holder was required to frequently travel between the Ambient Chamber and the Chill Chamber because the marshalling lanes for MUs were generally within the Chill Chamber (about 90% to 95% of the time). That often entailed a significant change in temperature during the summer months when the Ambient Chamber was stifling hot whereas the Chill Chamber was temperature controlled at three degrees celsius. When moving into the Chill Chamber, the Job Holder would usually put on a coat prior to entering the Chill Chamber, but he often did not to save time (which he said he always later regretted due to the cold). If it was particularly warm in the Ambient Chamber, the Job Holder could be sweating which increased the sensation of the cold when entering the Chill Chamber." The evidence on how long the JH spent in a frozen trailer is as follows: The Job Holder dealt with frozen transhipments approximately three times per The Job Holder dealt with frozen transhipments (1) The first important point is that the JH will deal with several frozen month. The JH was not always working inside the frozen trailer when working on approximately three times per month. This could be by transhipments in the course of a shift where he is allocated to frozen Frozen Transhipments as some tasks were undertaken outside the Frozen Chamber. himself, or with one or two colleagues for larger ML1213 420 transhipments. See Lewis w/s §68 (‘I would spend the last few hours of my shift If the Job Holder dealt with a frozen transhipment, he estimates that he might have transhipments; usually it was a two person job. On each dealing with frozen transhipments…On the shifts when I dealt with frozen spent around 20 – 60 minutes in total in the Frozen Chamber depending on the size occasion he would deal with between 3 and 5 frozen transhipments, I would have to deal with several (3-5) transhipments each of the load, as this work was undertaken in pairs. Before entering the Chamber, he transhipments. Dealing with a frozen transhipment 544 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS shift.” Cs’ proposed text tends to imply that the JH only dealt with one would put on additional clothing: a snood, layers of four tops (two ski tops, a base involved moving frozen products from one frozen trailer or transhipment on each occasion, which is wrong. layer and a sweat shirt or hoodie), as well as a coat, three pairs of gloves and three chamber into another. It did not usually involve constantly (2) A further important point is that dealing with a frozen transhipment involves layers of insoles in his JCB boots to help insulate against the cold. There were chill being in a frozen environment. He would spend at least 20 moving goods from one frozen trailer into another, not simply being inside (or suits on offer, but the Job Holder found them restrictive and did not wear them. minutes in a frozen environment per shift and typically it outside) a single frozen trailer. would be 30 minutes or more, up to a maximum of 60 (3) The evidence is that when dealing with a single transhipment, the JH will spend Mr Sutton agreed in oral evidence that it was “about right” to say (as Mr Lewis did in minutes per shift. Before dealing with transhipments, the anywhere from 20 minutes upwards in a frozen environment, depending upon his interview with Leigh Day) that Mr Lewis would spend 20 minutes or longer in the Job Holder would put on additional clothing: a snood, the size of the load. The typical time spent in a trailer for each transhipment Frozen Chamber “depending what the load is” and that it could be “half a load or a layers of four tops (two ski tops, a base layer and a sweat would appear to be around 30 minutes. See for example the following: full load”. Mr Sutton also agreed that if the job required 60 mins in the Frozen i. Mr Lewis’ w/s at §68, p.245 (“It would typically have taken me and a Chamber that could be split between two colleagues: see T16/72/4 – T17/73/21. shirt or hoodie), as well as a coat, three pairs of gloves and colleague 60 minutes to unload and receive each frozen transhipment three layers of insoles in his JCB boots to help insulate and load that stock into the empty frozen trailer.” In re-examination Mr Sutton said that for a “fuller trailer” he could be in the Frozen against the cold. There were chill suits on offer, but the Job ii. Mr Sutton’s oral evidence at day 16, p.73, agreeing that it might take Chamber for any time from 30 minutes to 60 minutes as a maximum: T16/82/3 – Holder found them restrictive and did not wear them. 60 minutes to deal with a transhipment, but that time might be split T16/83/7. so that each colleague would not spend all the time in a frozen trailer. Reasons: The evidence is overwhelmingly to the effect that iii. Mr Sutton’s evidence at w/s §65, p.141, that “In my experience, a The fact that chill suits were on offer but that Mr Lewis didn’t wear them is recorded the maximum amount of time spent in a frozen chamber / warehouse colleague would spend between 30 to 60 minutes dealing at para 240 of the JD at [5/82]. trailer per shift shift was 60 minutes. If this is right, and if it with a frozen transhipment load,depending on the size of the load”. is also right that ML dealt with 3 to 5 transchipments each iv. Mr Lewis’ statement to Cs’ solicitors, bundle 5 p.420, that dealing time (something that doesn’t seem to be in dispute), then with transhipments was generally a “two man job”, and would involve spending “20 minutes or longer” in a frozen trailer. it cannot be right that the minimum amount of time spent in a Frozen Chamber per transhipment was 20 minutes. On that basis, Rs propose the following text as accurately reflecting the evidence: There is a confusion in the evidence between amount of time per transhipment and amount of time per shift; and “The Job Holder dealt with frozen transhipments approximately three times per evidential confusion more generally. 20 minutes as a month. On each occasion he would spend several hours dealing with between 3 and 5 minimum figure also seems to be agreed, but it must, frozen transhipments. It would typically take between 30 and 60 minutes to deal with logically, be per shift rather than per transhipment. The each transhipment, depending on the size of the load, and the JH estimates that he evidence is insufficiently clear to be able to give an average would spend a minimum of 20 minutes in a frozen trailer dealing with each – “typically … 30 minutes or more” is the most we can say transhipment (i.e. a minimum of 60 – 100 minutes in total during the shift). Before – or to be able to specify how much time was spent in total dealing with transhipments, the JH would put on additional clothing: a snood, layers of four tops (two ski tops, a base layer and a sweat shirt or hoodie), as well as a coat, in transhipments. See also ML1323 below. three pairs of gloves and three layers of insoles in his JCB boots to help insulate against the cold. There were chill suits on offer, but the Job Holder found them We don’t know what objection Cs have to “to help insulate restrictive and did not wear them.” against the cold”; what was the purpose of the additional clothing if not that? The Job Holder dealt with frozen transhipments approximately three times per As to the Job Holder’s work in frozen transhipments, see See ML1213 above. Rs propose: month. Frozen transhipments arrived towards the latter part of the Job Holder’s paragraph [420] above. shift, usually from 7 pm. He could then be spending the last few hours of his shift “Frozen transhipments arrived towards the latter part of the Job Holder's shift, usually dealing with frozen transhipments, although this work was always undertaken in Reasons: See ML1213. Repeating the same information in ML1276 467 from 7 pm. He could then be spending the last few hours of his shift dealing with pairs and not all Frozen Transhipment tasks were undertaken within the Frozen different words, is undesirable. Referring back to a between 3 and 5 frozen transhipments. When the JH dealt with a frozen Chamber. previous section of the JD ensures consistency of wording transhipment, he estimates that he would have spent a minimum of twenty minutes in a frozen trailer per transhipment, the time spent depending on the amount of See the submissions for ML1213 above. stock.” The cages had to be turned in a certain way in the trailers and placed along the side The cages had to be turned in a certain way in the trailers walls of both trailers, so that there was a walk-way in the middle of the trailer. This and placed along the side walls of both trailers, so that See ML1213 above. Rs propose: was required so that the Loaders could easily access the cages. It meant that the there was a walk-way in the middle of the trailer. This was remaining cages in the original trailer had to be manoeuvred into the correct ML1280 required so that the Loaders could easily access the cages. “The cages had to be turned in a certain way in the trailers and placed along the side position once half the cages had been taken out of the trailer. This was done by It meant that the remaining cages in the original trailer had walls of both trailers, so that there was a walk-way in the middle of the trailer. This hand and the Job Holder estimated that he would spend a minimum total of half an to be manoeuvred into the correct position once half the was required so that the Loaders could easily access the cages. It meant that the hour inside the trailer for each load, rearranging the cages into position. The roll cages had been taken out of the trailer. This was done by remaining cages in the original trailer had to be manoeuvred into the correct position cages on average weighed 103 kilograms but could weigh up to 350 kilograms and 545 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS once half the cages had been taken out of the trailer. This was done by hand. On the wheels would not always go in the direction the Job Holder wanted them to. The hand and the Job Holder estimated that he would spend a average roll cages weighed 103 kilograms across the warehouse, but could weigh up Job Holder estimated that he would spend a minimum total of 30 minutes inside the minimum total of half an hour inside the trailer for each to 350 kilograms and the wheels would not always go in the direction the Job Holder frozen trailer for each load, rearranging the cages into position. He typically spent load, rearranging the cages into position. The roll cages on wanted them to. The Job Holder estimated that he would spend a minimum of 20 another 30 minutes per load (or more depending on the amount of stock) to load the average weighed 103 kilograms but could weigh up to 350 minutes inside a frozen trailer for each load, rearranging the cages into position.” stock into the empty standby frozen trailer kilograms and the wheels would not always go in the direction the Job Holder wanted them to. The time spent in the Frozen Chamber is dealt with at ML1213 above and so does not need to be repeated here. If it is repeated here it should be consistent with ML1213 Reasons: All the relevant information that can be given about amounts of time in the Frozen Chamber is already in the JD, in ML1213. It does not need repeating. The fact that the JH was part of a team dealing with Transhipments is irrelevant and In addition, the following physical demands were applicable to Transhipments, In addition, the following physical demands were should not be included, given that there is no evidence that this affected the physical although the Job Holder always worked in a team and there could be up to seven applicable to Transhipments: demands on each member of the team. Cs’ proposed formulation attempts colleagues working together meaning the time spent by the Job Holder on any task inappropriately to minimise the obvious physical demands of this role. In any event, was shared out: Reasons: This is ML’s job description and this section is Mr Lewis’ evidence is that each transhipment was generally dealt with by two people concerned with what physical demands were placed on (not six or seven as stated in Cs proposed text): see e.g. Bundle 5 p.420 (in answer to The additional of the highlighted text clarifies the nature of the physical demands. him. The fact that he worked as part of a team – just like all questions from Cs’ representatives): “Usually on frozen it’s a two person job”. the Comparators and Lead Claimants – is irrelevant to what The fact that there were up to seven colleagues working on transhipment and that ML1323 478 follows in the JD. We also note that 7 people working on Rs propose: they shared work between them is agreed at paragraph 481.1.1 of the JD, see CB5/160. It was confirmed by Mr Lewis in his interview – see the Leigh Day notes and transhipments does not mean that 7 people worked "In addition, the following physical demands were applicable to Transhipments:" the reference to “usually a team of 6 or 7” a little above half way down the page at together on a single load, something made clear by ML at [5/420]. See also the DACB notes at [5/387] at para 344. interview [bundle 5/ p. 420]: “usually a team of 6 or 7. There are so many transhipments that need to go out, unlike receipts. Everyone is busy going back and forth. Usually on frozen it’s a two man job.” [our emphasis]. Mr Lewis’ evidence in answer to questions from Cs’ representatives was that if The same physical demands for re-stacking a pallet as set out in paragraphs 342.6 of The same physical demands for re-stacking a pallet as set restacking of a pallet was required during a transhipment, which “could happen every the Unloading, Receiving and Loading ambient receipts section above. During out in paragraph 342.6 of the Ambient Receipts section shift”, there would be “two others helping”: see bundle 5, p.453. transhipment shift, restacking was required for most loads although this was usually above. During a transhipment shift, restacking was undertaken by 3 - 4 colleagues (including the Job Holder). The Job Holder therefore, required for an average of around a pallet per load, Rs therefore propose: along with his colleagues, spent an average of 15 minutes per pallet in total dealing although this was usually undertaken by 3 colleagues with restacking when dealing with Transhipments. The Job Holder estimates there (including the Job Holder). The Job Holder therefore spent “The same physical demands for re-stacking a pallet as set out in paragraphs 342.6 of would be at least one pallet per load that required restacking; an average of 15 minutes per pallet dealing with restacking the Ambient Receipts section above. During a transhipment shift, restacking was ML1325 478.2 when dealing with Transhipments; required for an average of around a pallet per load, although this was usually The highlighted words clarify that the task was shared between colleagues: see the undertaken by 3 colleagues (including the Job Holder). The Job Holder therefore spent Leigh Day interview notes at [5/421] (from line 8), the DACB notes at [5/388] para 357 an average of 15 minutes per pallet dealing with restacking when dealing with and para 478.2 of the JD at [5/157]. Reasons: As for ML1323 above. The fact that other Transhipments;” colleagues were working with ML, which is highlighted in agreed wording in this paragraph, does not alter the physical demands placed upon ML by him spending an average of 15 minutes per pallet. Rs propose: Physically manoeuvring roll cages for frozen transhipments inside the trailer (by Physically manoeuvring roll cages for frozen pushing and pulling) required extra effort. These cages were usually heavier than transhipments inside the trailer (by pushing and pulling) “Physically manoeuvring roll cages for frozen transhipments inside the trailer (by the average 103 kg roll cage were and could weigh up to approximately 286 kg and required extra effort. These cages were usually heavier pushing and pulling) required extra effort. These cages were usually heavier than the may have had to be completely rearranged inside the trailer. The floor was often 478.54 than the average 103 kg roll cage and could weigh up to ML1337 average 103 kg roll cage were usually very heavy; they could weigh up to slippery and icy which demanded additional physical effort. The Job Holder (478.5.4) approximately 286 kg. They had to be placed and approximately 286 kg and had to be completely rearranged inside the trailer. The described physically wheeling frozen Transhipments within standard roll cages as manouvered inside the trailer as per paragraph [471] floor was often slippery and icy which demanded additional physical effort. The Job heavy work made harder by the fact that the wheels would not always go in the above. The floor was often slippery and icy which Holder described physically wheeling frozen Transhipments within standard roll cages direction the Job Holder wanted them to. demanded additional physical effort. The Job Holder said 546 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS as heavy work made harder by the fact that the wheels would not always go in the that wheeling frozen Transhipments within standard roll direction the Job Holder wanted them to.” The highlighted words reflect the fact that there is no evidence to suggest that the cages was made harder by the fact that the wheels would cages always had to be rearranged – that is not something Mr Lewis covers at para 69 not always go in the direction the Job Holder wanted them The fact that the cages had to be “completely” rearranged is common sense in of his statement ([10/245]) that deals with this para of the JD. to. circumstances where they were moved from one trailer to another: Rs do not understand the basis on which Cs dispute it. The difficulty of rearranging frozen The deleted wording includes the subjective assessment of the JH that the work is Reasons: We are not sure that “rearrange” is the right transhipments when the wheels would not always align is supported by the witness heavy in circumstances where the weight of the roll cages is included. In addition, the word. In any event, what was done is adequately described evidence (Lewis w/s §69, p.245) and will be familiar to anyone who has manoeuvred a statement that the wheels would “not always go in the direction you wanted them in ML1280. As to the last sentence, ML’s subjective opinion (much lighter) supermarket trolley. to” is of little use without some clearer indication of frequency and in the circumstances does not add anything to the agreed wording relating to the effort about how heavy the work does not translate into a finding required due to the slippery and icy floor. of objective fact that we could make that might conceivably be relevant to the equal value question. Cf. ML511. How useful ML’s undisputed evidence about wheels not always going in the right direction will be in the job evaluation process is open to question, but will be for Rs propose the following text in substitution for text deleted by Cs, which more When marshalling black totes to the high value cage, the Job Holder manually When marshalling black totes to the high value cage, the precisely describes the physical demands of carrying and rearranging totes by carried them (which weighed around 15 to 25 kilograms each) to the high value Job Holder manually carried them (which weighed around reference to the witness evidence at Lewis w/s §§64-65, p.244: cage. The Job Holder remembers that he previously had to carry the totes between 15 to 25 kilograms each) to the high value cage. He ten and fifteen metres. He cannot recall precisely when this changed, but that remembers that he previously had to carry the totes “When marshalling black totes to the high value cage, the Job Holder manually carried distance changed to approximately two or three metres. He also had to physically between ten and fifteen metres. He cannot recall precisely them (which weighed around 15 to 25 kilograms each) to the high value cage. The Job lift and move them about in the process or rearranging them in alphabetical order. when this changed, but that distance changed to 478.57 Holder remembers that he previously had to carry the totes between ten and fifteen The Job Holder described this task as “back breaking” because it was so heavy. ML1340 approximately two or three metres. He also had to (478.5.7) metres. He cannot recall precisely when this changed, but that distance changed to physically lift and move them about in the process or approximately two or three metres. He also had to physically lift and move them The deleted wording is evaluative and/or subjective and adds nothing of substance to about in the process of rearranging them in alphabetical order. This task required the the paragraph. rearranging them in alphabetical order. JH to move around 200 totes with either one or two other colleagues, which the JH found very physically taxing.” Reasons: We agree with Cs. As for “heavy work” in ML1337. The fact that the JH worked in a team of 6-7 colleagues when dealing with The Job Holder was required to operate at a consistent pace to ensure the The Job Holder was required to operate at a consistent transhipments is not relevant to whether he was required to operate at a consistent appropriate flow of products in the warehouse and this required mental effort for pace to ensure the appropriate flow of products in the pace, and whether as a consequence mental effort was required. Cs’ proposed added the duration of the shift, although he worked in a team of between 3 – 4 and 6 - 7 warehouse and this required mental effort for the duration text is not material to the issue of concentration, and should be deleted on that basis. other colleagues in combined effort: of the shift: It is relevant to note that Mr Lewis’ own answers to Cs’ representatives made clear that the team was not less busy, simply because it consisted of 6-7 people; and that The highlighted wording clarifies that the tasks were shared between colleagues and Reasons: As for ML1323. tasks would not necessarily be done by the whole team. See bundle 5, p.453, at the accepts the figures suggested or already agreed by Rs, see ML1323, ML1325 and top of the page: ML1342. ML1354 481.6 “No usually a team of 6 or 7. There are so many transhipments that need to go out, unlike receipts. Everyone is busy going back and forth. Usually on frozen it’s a two- man job.” "The Job Holder was required to operate at a consistent pace to ensure the appropriate flow of products in the warehouse and this required mental effort for the duration of the shift:" Cs’ deletion in the proposed paragraph is inappropriate ("Due to the nature of frozen Due to the nature of frozen goods, there was additional pressure to deal with frozen Due to the nature of frozen goods, there was additional 481.62 goods, there was additional pressure to deal with frozen transhipments quickly to transhipments quickly to ensure they were always kept at the right temperature. pressure to deal with frozen transhipments quickly to ML1356 (481.6.2) ensure they were always kept at the right temperature. Pressure to work quickly also Pressure to work quickly also arose from the cold environment itself, as it was ensure they were always kept at the right temperature. arose from the cold environment itself, as it was uncomfortable to work in the frozen uncomfortable to work in the frozen trailers. 547 of 548 Para ID Number - Respondents’ submissions Claimants' submissions TRIBUNAL’S FINDINGS RE. MARK LEWIS trailers. ") ; the fact that pressure to work quickly arose from the cold environment is The Job Holder would also work more quickly to get out of supported by the evidence. See e.g. Lewis w/s §70 at p.245: The statement that it was “uncomfortable” is evaluative and/or subjective. the frozen trailers as soon as possible because of the temperature in there. “I would work more quickly to get out of the frozen trailers as soon as possible as it was very cold in there. I would want to get out of the frozen trailers as quickly as Reasons: We are not satisfied that it was uncomfortable to possible, as well as working at pace to make sure products were kept at the right work in the frozen trailer as a matter of objective fact. The temperature.” (apparently) undisputed evidence around this is reflected in our wording, which borrows from ML’s statement. "Due to the nature of frozen goods, there was additional pressure to deal with frozen transhipments quickly to ensure they were always kept at the right temperature. Pressure to work quickly also arose from the cold environment itself, as it was uncomfortable to work in the frozen trailers." Further, the Job Holder was aware that Team Managers periodically walked the Further, the Job Holder was aware that Team Managers See ML161 above. The evidence is clear that: (i) although formal performance depot floor, watching the Job Holder and his colleagues' pace of work. The Job periodically walked the depot floor, watching the Job processes were not in place in Hams Hall after 2012, informal conversations and Holder was aware that, if the Team Manager considered that the Job Holder was Holder and his colleagues’ pace of work. The Job Holder coaching to improve performance frequently took place; (ii) the JH was spoken to not working at the required pace, this could result in an informal conversation was aware that, if the Team Manager considered that the about working at pace on a number of occasions – see e.g. Lewis w/s §20, p.232 (and where the Team Manager would question the reasons for the Job Holder's pace and Job Holder was not working at the required pace, this see also bundle 5, p.408); and (iii) if the reason for a colleague failing to meet the he may receive coaching to improve his performance. If the pace of work was not at could result in an informal conversation where the Team required pace was unaccounted time, that could be the subject of formal misconduct the expected standard because of unaccounted time, such conduct could lead to a Manager would question the reasons for the Job Holder’s proceedings. See e.g. Collins w/s §23, pp. 173-174, Collins oral evidence, Day 16 pp. formal disciplinary process. The Job Holder has never been spoken to about working pace and he may receive coaching to improve his 101-103. Rs accordingly propose: at pace when working on the Inverter or on MUs and has never been subject to 481.64 ML1358 disciplinary action for unaccounted time. performance. If the pace was not at the expected standard (481.6.4) “Further, the Job Holder was aware that Team Managers periodically walked the because of unaccounted time, such conduct could lead to depot floor, watching the Job Holder and his colleagues' pace of work. The Job Holder The fact that JH was never spoken to about his pace of work when working on the a formal disciplinary process. The Job Holder was never was aware that, if the Team Manager considered that the Job Holder was not working Inverter is agreed by the Rs: see the proposed wording for ML1083. The JH confirmed spoken to about working at pace when working on the at the required pace, this could result in an informal conversation where the Team in interview that he has never been spoken to about his pace of work when working Inverter. He was never subject to disciplinary action Manager would question the reasons for the Job Holder's pace and he may receive on MUs: see the Leigh Day notes at [5/452] (about half-way down the page) and the because of unaccounted time when working anywhere. coaching to improve his performance. If the pace of work was not at the expected DACB notes at [5/387] at paras 338 and 339. standard because of unaccounted time, such conduct could lead to a formal Reasons: As for ML1083. disciplinary process.” The fact that the JH has never been subject to disciplinary action for unaccounted time is dealt with in the submissions for ML451. Within transhipments, the incidence of lowering of body temperature, and the effects The lowering of body temperature which is linked to problems with concentration, Delete. on concentration and tiredness, is set out in unchallenged evidence, and is tiredness and an increased risk of accidents. unsurprising in light of the amount of time that the JH was required to spend in frozen Reasons: We agree with Cs. It is not an established fact trailers. See Botten w/s §157, p. 277, and Lewis w/s §17, p. 231. On that basis, Rs’ This is subjective commentary that seeks to provide medical evidence. 487.62 that ML’s body temperature was lowered by working on ML1388 proposed text in the JD should be accepted: (487.6.2) frozen transhipments; nor that if it was, it had the alleged effect on him in practice (whatever he may subjectively "The lowering of body temperature which is linked to problems with concentration, believe and whatever effects lowering of body tiredness and an increased risk of accidents." temperature tends to have on people). 548 of 548