Ms A Abdar and Others v WM Morrison Supermarkets plc and Others: 1811283/2018 and Others

EMPLOYMENT TRIBUNALS

Case No 1811283/2018

Between

Ms A Abdar and OthersClaimant

WM Morrison Supermarkets plc and OthersRespondent

Before

Employment Judge Davies

1. Ms K Monaghan KC and Mr Z Ansari (instructed by counsel) for claimant

Date 7 November 2025

JUDGMENT

[1]The facts relating to the question whether the Claimants’ work is of equal value to that of the comparators, in relation to lead Claimants Ms A Tucker, Mrs S Williams, Ms S Hoyle and Mrs L Gage and lead comparator Mr A Rowe, are set out in the five annexes to this judgment.

REASONS

[1]Introduction, issues and findings1.1 These are equal pay claims brought by a large number of Claimants who work in the Respondents’ retail stores who say that their work is of equal value to the work performed by Comparators in the Respondents’ distribution centres. This was the third tranche of the stage 2 equal value hearing to determine the facts relating to the question whether the Claimants’ work is of equal value to that of the Comparators.

1.2 There are four groups of Claimants, all legally represented. The Roscoe Reid and Leigh Day groups took an active part in the hearing. Some legal representatives attended the hearing by CVP. The two Independent Experts appointed by ACAS also attended the hearing by CVP.

1.3 It is important for the Tribunal to repeat again its appreciation for the way in which the documentation was prepared by the parties and for the co-operative way in which they prepared for the hearing and continued to narrow the disputes as the hearing progressed. Their exemplary approach in this respect enabled detailed and complex matters to be dealt with, within the allotted timescale. The Tribunal was provided with agreed files of documents for each lead Claimant and lead Comparator. Those files included relevant evidence and the most recent version of the job description and record of disputes in relation to that job description. The Tribunal was also provided with schedules of the factual disputes to be determined and other miscellaneous documents. Counsel had provided skeleton arguments in advance and provided detailed closing submissions.

1.4 At this tranche of the Stage 2 equal value hearing, the Tribunal dealt with the roles performed by:1.4.1 Lead Claimant Ms A Tucker: Customer Assistant – Customer Café;

1.4.2 Lead Claimant Mrs S Williams: Customer Assistant - Deli;

1.4.3 Lead Claimant Ms S Hoyle: Checkout Team Leader;

1.4.4 Lead Claimant Mrs L Gage: Customer Assistant – Petrol Station; and

1.4.5 Lead Comparator Mr A Rowe: Logistics Key Operative – Warehouse and FLT.

1.5 The Tribunal heard evidence from:1.5.1 Ms A Tucker;

1.5.2 Mrs S Facey;

1.5.3 Mrs S Williams;

1.5.4 Mr P Smith;

1.5.5 Mr R Woodrow;

1.5.6 Ms S Hoyle;

1.5.7 Mr R Sheard;

1.5.8 Ms K McKinlay;

1.5.9 Mr P Benningwood;

1.5.10 Mrs L Gage;

1.5.11 Ms L Roberts;

1.5.12 Mr R Hauton; and

1.5.13 Mr L McCormick.

1.6 The parties had prepared detailed job descriptions for Ms Tucker, Mrs Williams, Ms Hoyle, Mrs Gage and Mr Rowe and had identified those parts of each job description that were disputed. This judgment sets out the Tribunal’s findings in respect of each identified dispute. The remainder of the facts in respect of these Claimants and this Comparator are as set out in the agreed factual parts of the respective job descriptions.

[2]Legal principles2.1 It is not necessary or proportionate to set out or summarise the evidence or the parties’ submissions in relation to each dispute. With the Tribunal’s permission, the parties arranged for the hearing to be transcribed and there is a full and detailed transcript of each day’s evidence. The parties’ submissions are set out in detail in writing.

2.2 The Tribunal reminded itself of the applicable legal principles. They are summarised in our judgment dated 4 March 2024 and we do not repeat them here.

[3]Conclusions3.1 As indicated, the Tribunal’s conclusions and reasons, applying those principles where relevant, are set out in the annexes below. The Tribunal’s findings in relation to each factual dispute are set out in the relevant annex below, and the Tribunal’s reasoning is set out in italics beneath the relevant finding.

3.2 That completes the determination of the facts relating to the question whether the work of the Lead Claimants is of equal value to the work of the Lead Comparators. The Independent Experts must now prepare their report. Employment Judge Davies 15 January 2025 ROD JD PARA. TRIBUNAL FINDING WITH REASONS IN ITALICS 13a 30 Replace para 30 as follows: Reduced levels of staffing have corresponded with an increase in time pressure on JH for task completion, particularly at closedown. The Tribunal accepted Mr McCormick’s evidence that the reduction in staffing levels in the café corresponded with a reduction in customer orders. Therefore, reduced staffing levels did not automatically mean more work. However, we noted that the reduction in customer orders and the reduction in staffing hours were both around 30% and we accepted Ms Tucker’s evidence that some tasks require completion regardless of the number of customers, for example, the same tasks need completing at closedown. The amount of work did not therefore necessarily reduce in direct proportion to the reduction in customer orders. Further, the overall staffing levels provided by Mr McCormick are averages. He accepted that there were shifts where the actual staffing numbers at opening or closedown were below the “minimum” levels. We accepted Ms Tucker’s evidence that all of this has given rise to an increase in time pressure on her for completing those tasks in the given timeframe. Mrs Facey accepted that with fewer staff JH would still be more pressurised because there were more tasks to cover. She also accepted that Ms Tucker was better placed to say whether this happened for the period since 2015. 15b 32 Replace 3rd (last) sentence of para 32 as follows: A member of the management team will visit the Café around three times a day to sign off on paperwork, and one of those visits includes a full walk of the Café. The JH will not necessarily be present during each of these visits, depending on shift patterns. Additionally, the manager can be contacted if and when required. Occasionally, they are unable to attend straight away. Ms Tucker accepted that management visit three times per day as described. Ms Tucker gave evidence that managers did not always come when they were called. Mrs Facey disagreed, saying that she always attended, but accepting that she did not know about other managers. The Tribunal found it implausible that there would “never” be an occasion on which the manager was not already dealing with a different issue. 15d 32 Replace 2nd sentence of para 32 as follows: JH is an experienced colleague and since 1 June 2020 has limited and sometimes no contact with the Café Manager during a typical working day. The Tribunal found that “limited” was an accurate description of the amount of management contact involved in the three standard daily visits to the café plus ad hoc attendances when needed. Mrs Facey accepted that there were days when she as a manager had limited or no contact with a café individual. The Tribunal accepted Ms Tucker’s evidence that neither was typical “there’s no such thing as a typical day. Sometimes I see a manager, sometimes I don’t.” For example, if she was cooking in the back kitchen she would not have contact with the manager (although she would probably be told that they were around). 39b 84 Replace final sentence of para 84 as follows: With certain ingredients, JH may cook them for slightly longer than specified, if, after the time set out in the specification has passed, the appropriate temperature has not been reached when the ingredient is temperature checked using a probe, or to achieve a more attractive appearance using the WIEI approach. For example, the thickness of bacon can vary and JH adjusts the cooking time accordingly to avoid bacon that looks either burnt or under-cooked. Mrs Facey accepted that when Ms Tucker was cooking something a bit longer, to get a more attractive appearance, the specification sheet probably did not cross her mind. The Tribunal found that when Ms Tucker was making the sort of changes described here, she was not doing so by reference to the guides or specifications, but was exercising her own judgment to ensure that the food was something she would eat (WIEI). 40 89 Replace para 89 as follows: Most of the meals cooked in the Café are cooked to order. When not cooking to specific order, JH selects quantities of ingredients to cook based upon what she believes will sell that day, using her knowledge and experience of: customer demand for given meals, including at different times of the day; the length of time that a given cooked product can be held for (para 306); and current offers on certain products. JH also uses as guidance the range by time of day and batch cooking guides and is trained to have more ingredients available for the busier periods of the day (i.e. between 10am and 2pm). To minimise food waste, JH also follows Morrisons’ self-explanatory “little and often” approach when deciding on quantities of products to be cooked. The Tribunal found that Ms Tucker was using her knowledge and experience of the matters listed in the paragraph, not just what she knows from recent customer demand. Ms Tucker described things she would take into account and gave examples in her witness statement. We accepted her oral evidence that she was using her knowledge and experience. Mrs Facey accepted in her oral evidence that the sort of variation performed by Ms Tucker was much more sophisticated than cooking more breakfast items at breakfast time and the Tribunal felt that this basic example was misleading. Mrs Facey agreed that when preparing, it was her knowledge and experience that told her what she needed to prepare for. She agreed that she would expect her experienced staff to use their initiative. 61 126(a) Replace 126(a) as follows: Beans are stored in large plastic tubs in the fridge (para 179). JH microwaves a tub for 12 minutes on 100%, stirring the beans halfway through with a plastic spoon. When temperature checking after cooking, JH aims for a slightly higher temperature than required (over 80oC) because JH knows that one of the most frequent customer complaints in the Café is about beans not being sufficiently hot enough. Once at the slightly higher temperature when probed using the temperature probe, JH carries the tub to the Bain Marie and decants the cooked beans into the relevant gastronorm. The Tribunal accepted Ms Tucker’s evidence that she cooks beans to the higher temperature because customers have frequently told her that their beans were not hot enough. Mrs Facey was not in a position to say that she did not do so. The Tribunal noted that Ms Tucker’s evidence was that these “complaints” were usually raised with her when she was clearing tables and asked customers if everything had been ok, not as formal complaints. We also noted that at least one of the formal complaints did refer to the beans not being hot enough. Although Ms Tucker accepted that it was a personal choice to heat the beans to a higher temperature, the Tribunal found that this was a way of Ms Tucker doing her work. It was a minor adjustment upwards to the cooking temperature and was to a lower temperature than, for example, hash browns, sausages, bacon and black pudding were required to be cooked to. Part of the Claimant’s job is to provide excellent customer service. The Tribunal found that this was part of that. 75a 143 Replace first sentence of para 143 as follows: JH knows from her familiarity with the cooking specifications (if and when new lines of products are introduced or if JH otherwise needs to do so, she refers to the relevant specification) and her experience of

(i) cooking times and

(ii) cooking methods, how best to organise the sub-task, so that the breakfast ingredients are ready as close to possible before Café opening and are freshly cooked. The Tribunal was not shown evidence that Ms Tucker was trained on the order of preparation to follow. The 2014 Customer Café Operations Manual contains approximate cooking times for the minimum breakfast requirements. It does not specify the order of cooking items. Mrs Facey accepted that it was probably experience that tells staff how to organise the task and what order to do things so that it all comes together at the same time to present a lovely, freshly cooked, hot breakfast. Mrs Facey accepted that there was no specific training on how to make that happen. The Tribunal accepted Ms Tucker’s evidence that she had her own way of doing things, which was similar to the Respondent’s guidance but had slight variations. She described the order of cooking she uses and she explained, for example, that if there are no customers waiting she won’t cook any hash browns, because they can be cooked in the time it takes for an order to be placed and plated up and do not keep for long in the Bain Marie if unused. 90 187 Replace final 3 sentences of para 187 as follows: JH decided how many such meals were required for the following trading day (using as guidance the production plan and batch cooking guide, she assessed likely customer demand based on her knowledge, experience, and any current offers) and transferred them from the freezer to the fridge to defrost overnight. JH applied a date label (Day+4) to each individual ready meal selected for defrosting. Café ready meals were subsequently obtained fresh for the Café from the shop floor as part of the Shopping sub-task (para 353.a) The Tribunal found that Ms Tucker did make an assessment, based on a range of factors. In cross-examination, although she said that she agreed with the Respondent’s wording, the whole of her answer showed that she remained of the view that she was using her knowledge and experience: “Yes I can agree. It is a guide. You’ve still got to use your knowledge and experience to know what’s what.” The Customer Café Operating Guidance from 2022 advises to “defrost sensible quantities to reflect trade.” Mrs Facey accepted that this would be cascaded down to staff. She would say to her experienced staff, “make sure we defrost enough” and she would expect them to take that on board and use their own initiative. 121c 290 Replace para 290 as follows: Until approximately 2016/17, paper orders were used rather than order screens. A ticket was printed at the till setting out details of the order, which was then placed above the Bain Marie in the Plate-Up Area. Paper tickets at times inadvertently went missing or fell onto the floor and customer orders could become lost. The order screen avoids such problems, which used to occur around once a month. The Tribunal accepted Ms Tucker’s clear evidence about this. She was working the orders in the café throughout the period. Even when Mrs Facey was Café Manager, she was mostly doing paperwork and other tasks rather than serving customers. Mrs Facey said that all she could remember was between one and two tickets going missing. That does not mean more were not going missing. The Tribunal noted that there were between 1700 and 2000 transactions per week in the café at this time. It was plausible that 1 ticket per month went missing in some way – either because it did not make it to the pass or because it became detached once there. 145 356 Replace para 356 as follows: Shopping and stocks replenishment of items for the Café stores was previously carried out primarily as part of closing the Café (Task J) in readiness for the following day, when Café staffing levels were higher and more colleagues worked on a late shift, but JH cannot recall when this practice ceased. JH does still undertake some of this replenishment as part of closing if time is available (para 501.d). It appeared to the Tribunal that the parties were using different terminology. Ms Tucker made clear in her evidence that here she was referring to shopping for and replenishing the Café’s stocks, not replenishing the goods for sale to customers. Ms Facey agreed that the Shopping (for Café stocks) is done in the morning. 146b 357 Replace para 357 as follows: JH checks the Café Stores (ambient, fridges and freezers) for levels of stock of Café products and ingredients before replenishment. Colleagues in the Café are trained to have enough products available for the busier periods of the day (e.g. breakfast, lunchtime and teatime). JH knows from experience what levels of different products and ingredients are likely to be needed for the trading day ahead, and JH factors any current offers and any seasonal demands into her assessment (she also uses as guidance the production plan, batch cooking guide and availability of product range guides). Most days the same amount of each product is needed for the next day. JH spends approximately ten minutes checking the Café Stores. The Tribunal found that it was appropriate to describe what Ms Tucker is doing as making an assessment. Mrs Facey accepted that it was fair to use these words and that there was a mental process for the Claimant to decide to cook more. 166b 452 Replace para 452 as follows: In the Back Kitchen, there are extractors above the deep-fat fryers. The filters in the extractors become greasy and so are taken down and cleaned once a week. JH pulls the batter table out and pushes it to one side. JH then puts an "elephant foot stool" (Figure 61) in its place and stands on it to remove the first of the eight filters by hand. JH then goes to the end of the kitchen where the freezer is, and with a mop handle, she starts pushing across the remaining seven filters in the direction of where the stool is so that the next filter is pushed sufficiently across for her to go back onto the stool and remove it by hand. JH repeats the process of getting off the stool, pushing the filters across with the mop handle, and removing them by hand by standing on the stool again until she has removed all of the filters. JH then washes each filter in the dishwasher and, once clean and dry, JH stands on the stool and puts the filters back in one by one and pushes them across by hand. To clean all eight filters takes JH around 20 minutes. The Tribunal accepted Ms Tucker’s description of how she performed this task. She said that she was trained to do it this way and that she knew of five colleagues who did it this way. The photograph of the kitchen area annexed to her witness statement shows that Ms Tucker would not be able to remove the filters without sliding them along because of the position of the fryers. Mrs Facey’s evidence does not assist. She said in her witness statement that this was not done using a mop handle at all, but the Respondent now accepts that a mop handle is used; the dispute is about the detail of carrying out the task. 176 491 Replace para 491 as follows: This task entails closing the Cafe. Several sub-tasks relate to preparation for the following day’s trading and some such preparation tasks may not be completed as part of closing the Café, due to items being out of stock or time pressure, and so instead may need to be completed the following morning as part of the process of preparing the Café for opening, in addition to the regular opening tasks at that time (see Task A). The Tribunal preferred Ms Tucker’s evidence. She works in the café and has done so throughout the relevant period. She clearly explained how there may sometimes not be enough time at closedown, when there are two people carrying out all the tasks, particularly if it is a less experienced staff member working alongside her, or if it has been a busy day so it has not been possible to start the closedown tasks earlier. While Mrs Facey said that there was always enough time to complete the closedown tasks, she did agree that “very rarely” tubs of beans would be prepared the next morning. She did not accept that sometimes staff would be too busy during the day to start tasks earlier in the afternoon. The Tribunal found that implausible. We noted that Mrs Facey agreed that Ms Tucker was better placed to say whether or not this happens than she was. 184 533 Replace para 533 as follows: JH empties and washes up two “grease traps”, fitted at around the start of 2022, one under the sinks and one under the dishwasher. These metal containers are messy/greasy and have a strong and unpleasant smell. JH pours any liquid grease into a used oil bucket (for used fryer oil) and empties any solid food waste into the food waste bin. JH then washes each trap in the dishwasher or swills it out with hot water and re-inserts it into place. This takes JH around five minutes. The Tribunal found that describing the containers as messy/greasy was accurate. The word “very” did not add anything. We accepted Ms Tucker’s vivid description of the unpleasant smell: she herself takes a deep breath before starting the task and holds her breath; a colleague cannot do it without retching. Mrs Facey did not give evidence about this. 194 37A and Replace para 37A as follows: Footnotes 10 and 11 Food safety and hygiene (including personal hygiene) Food and personal hygiene are central to JH’s work in the Cafe. Morrisons have two levels of food safety training for Customer Assistant Cafe. Café colleagues, including JH, are required to (and JH has) successfully completed the Level 2 food safety training. Morrisons require: that she adheres to use-by dates (see paragraph 44); that she safely stores Café items that are not used immediately; that she defrosts Counter items properly; that Café equipment, crockery, cutlery, tables, and work surfaces she uses are clean and sanitised (see Tasks F, I and K and closing cleaning in Task J); that her personal hygiene is maintained to a high standard; that she avoids cross-contamination between raw and cooked products and related equipment and work areas; that she uses cleaning products correctly and avoids contaminating products or work surfaces; that she observes the Chill Chain in respect of chilled products (see paragraph 39); that products she cooks have reached the required internal temperature; that she checks that cooked products are maintained at the required safe temperature when kept in the Bain Marie and are not kept there for a period that exceeds “hold times”; that take-away items she provides to customers are cleanly and hygienically packaged; that when she shops for Café ingredients and products she only obtains authorised items; that she promptly and hygienically disposes of waste; that allergen requirements including Natasha’s law are observed. JH has received training in these issues from Morrisons (see Appendix 3). JH is trained that Morrisons colleagues and the business itself could be held legally accountable for failing to comply with the law. It was not for the Tribunal to determine as a matter of law the extent to which an individual could be liable to prosecution for breach of food safety legislation. The Tribunal found that it was appropriate in these findings of fact simply to refer to what the relevant training said without trying to resolve that underlying matter. 199 47A Replace para 47A as follows: In order to provide guidance to Café colleagues about quantities of products to cook, Morrisons has:

a. since 2012, issued weekly “production plans”; and

b. since February 2018, issued weekly “batch cooking guides”. These documents advise colleagues on the quantities of specific products to be defrosted the day before they are cooked, in addition to quantities to be cooked on the day itself. Using these documents as a guide, JH often (around 80% of the time, particularly Thursdays to Saturdays when the Café has more customers) determines the actual daily quantities of Café products to defrost and/or cook based upon what she believes will sell that day using her experience of recent customer demand for products and meals, the time of year (e.g., public holidays), the time of day, special offers applicable to relevant products and meals during the trading day ahead, and the current stock of relevant products (e.g. she fries more sausages at breakfast and at various times in the day if there is a breakfast deal on, such as half price breakfasts, kids eat free all day, two breakfasts and hot drinks for £10). Most of the meals in the Café are cooked to order. However, some products are cooked in batches and kept in the Bain Marie (for example, bacon, sausages, beans and peas). The typical amount of customer orders for different items changes over the course of a week (for example, the cafe typically has more customers on the weekends). These weekly patterns are broadly similar week on week albeit typical customer orders can be influenced by factors such as the time of year. Mrs Facey agreed that it was fair to use the word “determine” in relation to this process. She agreed that the Respondent’s example about cooking more sausages at breakfast was a bit basic and that there could be other factors. The Tribunal concluded that the more detailed example was a more accurate reflection of what the JH does. 221 119 Replace para 119 as follows: JH cooks bacon in the oven. JH usually cooks three metal trays of bacon at once, 10 rashers on each tray and one tray per oven shelf. Trays of bacon are normally prepared during the day (para 181) and during closing (para 498). JH cooks bacon based on what she believes will sell that day, using her knowledge and experience of customer demand, the time of day and any offers, and using as guidance the range by time of day and batch cooking guide. The typical amount of customer orders for different items changes over the course of a week (for example, the cafe typically has more customers on the weekends). These weekly patterns are broadly similar week on week. Therefore, the amount of bacon cooked each Saturday, for example, is broadly the same, albeit typical customer orders can be influenced by factors such as the time of year. JH may also cook bacon upon request from a colleague working in the Plate-Up Area. The Tribunal found that the Claimant’s wording more accurately reflected the process undertaken. She did not accept the Respondent’s wording, explaining “through experience you gain knowledge.” See also our reasoning in relation to dispute 199. 10 49 Replace para 49 with: Staffing levels on the Counter during the RP have decreased (see paragraph 50), with permanent colleagues leaving and often not being replaced. The effect is that there are fewer colleagues, aside from JH, carrying out Counter tasks described in this JD by the end of the Relevant Period. Oven Fresh/Pie Shop tasks were largely carried out by dedicated colleagues at the start of the RP, with other colleagues (including JH) working mainly on Deli/Express but providing cover for Oven Fresh/Pie Shop tasks. The position has gradually evolved during the RP with fewer Counter colleagues and an improvement in productivity. As a result, JH and her colleagues undertake a broader range of tasks across all Counter areas. JH is unable to specify a point in time at which JH’s duties changed, due to this gradual evolution. The Tribunal was not satisfied on the evidence before us that the reduction in staffing levels was caused by a reduction in transactions. The data produced by Mr McCormick related only to the deli counter specifically, whereas JH gradually moved to working across other parts of the Counter during the RP. Mr McCormick agreed that it looked like there was only a slight decline in transactions across the Counters. Mr McCormick did not produce staffing figures for the deli counter or the Counters as a whole. Further, the Tribunal accepted Mrs Williams’s evidence that part of the reason for a reduction in transactions was that with fewer staff it was not possible to prepare enough express items such as cheese, and that if she were able to prepare more, she could sell more. She is a long-standing and experienced employee, likely to know whether this was the case. There is reference to an increase in productivity elsewhere in the paragraph, so it is not necessary to include that again. 13b 56 Insert new para 56A as follows: 56A - Counter supervision is as follows: (a) From the start of the RP until approximately the middle of 2015, an Oven Fresh Team Leader and a Deli Team Leader worked on the Counter. The Team Leaders worked shifts, during which they mainly worked on the Counter alongside colleagues (including JH, who mainly worked on Deli). Team Leaders were available to colleagues (including JH) when working alongside them. Team Leaders also carried out the tasks described in this JD alongside the colleague they were working with. b) In 2015, there was a management restructure and the two Team Leader roles ceased to exist and a Meat and Counters Manager role ("Counters Manager") was brought in. The Counters Manager role was held by two individuals on a 1.0 FTE job-share basis. They worked mainly on the Counter during their shifts and at those times were available to colleagues (including JH) for issues requiring managerial input. In 2018, the Counters Manager role title changed to Meat, Fish and Counters Manager (although the role holders continued to work mainly on the Counter). (c) On 1 June 2020 there was a further restructure and shortly after that the Counters Managers moved roles. A Market Street Manager - Counters role then became responsible for the Counter. That Manager is responsible for the Bakery and the Counter. During their shifts, the Market Street Manager - Counters (or another manager) is available (and contactable by phone), either immediately in most instances, or otherwise within a few minutes, to JH if needed. In around August/September 2022, after the end of the RP, JH was appointed to the role of Team Leader for the Counter. During periods (a) and (b), JH was often (around 40-50% of the time) rostered to work on shifts when the Team Leaders/Counters Manager were not rostered. 57. From 2015, JH is therefore often not directly supervised when working on the Counter. If a problem arises that requires immediate attention from a Team Leader or manager, and they are not working on the Counter, then management are a telephone call away. JH’s immediate senior for much of the RP has been the Team Leader/Counter Manager; the Team Leader/Counter Manager is managed by the Market Street Counters Manager, who in turn reports to the Store Manager. The Tribunal found that the Market Street Manager – Counters or another manager was contactable by phone. Mr Woodrow described the operation of the 170 number and the expectation that the manager would answer. Mrs Williams’s evidence was more to the effect that she tried not to call the manager unless really necessary, rather than that the managers did not answer or respond. She accepted they would do their best to come and help if needed. There might be a delay of a few minutes. The Tribunal accepted Mrs Williams’s evidence that because she was so experienced, she would be deliberately rostered at least once per week to work on Ms Green’s day off. Mr Smith said in his evidence that from 2015 onwards 40-50% of the time there would be no Team Leader or Manager on the Counter with Mrs Williams. The Tribunal found that she was “often” rostered on shifts when Team Leaders/Counter Managers were not rostered, and often not directly supervised, rather than this being occasional. Mrs Williams accepted that the Team Leader/Counter Manager or Market Street Counters Manager was her senior, rather than her line manager. 32 89 Replace footnote 19 as follows: JH is not aware of there having been any fryer oil fires in the Oven Fresh area of the Beccles store. There was a fryer oil fire in the Café area of the Beccles store, which JH believes was during the RP (in the pre-COVID period) but is unsure of the precise date. The Café fryer is not the same as the oven fresh fryer. Mr Smith agreed that there was a fire in the Café area but said that the fryers were a different design. 109c 225(b) Replace 225(b) with: Product availability, JH attempts to locate a colleague from the relevant department to assist, tells the customer where to find the product, or otherwise checks locations of the product on the shop floor (including any promotion areas, if applicable) and then checks the warehouse. If stock of the product is located, JH provides this to customer; if not, JH explains the position to the customer. Customers can express dissatisfaction to JH about non-Counter product non-availability (typically this occurs whilst she is serving them), which JH deals with as JH would with a customer complaint (para 228). This happens around once per week. Mrs Williams gave clear evidence that for an easy item such as eggs she may tell the customer where to find the product, but she does sometimes leave the Counter to locate non-Counter products for customers. She does so even if she is the only person on the Counter, for example if the store is quiet, or if she can explain to the next customer that she will be back in a moment. There is not always somebody else available to help and it is better and easier for the customer if she does so. She has worked at the store a long time and knows where most things are in the warehouse. She acknowledged that it might be management expectation that she did not leave the Counter, but she said that the reality was that she did her best so that the customer went away happy. She presumed managers knew. Ms Green certainly knew. Mr Smith’s evidence was that the JH should not leave the Counter. She should try to get a colleague to help. He accepted in cross-examination that JH might leave the Counter but it would be “rare.” He could not say whether or not Ms Green knew that she did so. The Tribunal saw training materials encouraging colleagues generally to take customers to the product. There was no training material telling Deli colleagues not to do so. Mr Smith said that he would give that direction. The Tribunal preferred Mrs Williams’s evidence that she does sometimes leave the Counter in these circumstances, as described. Mr Smith agreed that she might do so rarely, and we preferred her evidence about what she actually does. Further, we accepted that Ms Green knew what she was doing and tacitly approved. Mr Smith accepted that he could not contradict that. We found that this was a way of the JH doing her job, in particular providing a high standard of customer service, and solving and resolving issues. The Tribunal found that the JH handles such customer dissatisfaction in the same way that she would handle a complaint, rather than simply politely listening to it. Mr Smith agreed that what was described at JD para 228 was correct and that it would be “odd” if the JH simply listened and said nothing. 110 227 Replace 227 as follows: Dealing with customer complaints can present a challenge for JH, the degree of challenge depending upon the nature of the complaint and the level of agitation of the customer. Customers have expressed their dissatisfaction or complained to JH about the following: a. waiting times on the Counter if the Counter is busy/under-staffed; b. product pricing on the Counter;

c. product availability of Counter;

d. product quality on the Counter;

e. concerns about the wider Store, including about product availability, pricing and/or quality (see para 225(b)). The Tribunal accepted Mrs Williams’s evidence that dealing with customer dissatisfaction can be challenging to deal with. It naturally depends on the nature of the complaint and the nature of the customer’s behaviour. We found that this was not just because Mrs Williams does not like confrontation but because dealing with unhappy customers can be challenging. Mr Smith accepted that Mrs Williams may be skilled at dealing with complaints, but still feel uncomfortable doing so. 115 234 Re-word existing para 234 as follows and move to JD section 6 COVID: During the first month or two of the pandemic, customers expressed unhappiness to JH (around three times per day) about: COVID-related changes in the Store; low stock or non-availability of products in the Store due to the impact of COVID; queues to enter the Store; limits on customer numbers in the Store; and other customers not observing social-distancing measures. As time went on and customers became used to the restrictions, expressions of unhappiness became less frequent (around once or twice a week). Mrs Williams gave heartfelt evidence that some customers behaved awfully at the start of the pandemic and that it brought out the worst in people. She said that this happened more than once or twice per day at the start (six to eight times), and that it was more than once or twice per week at the end, but she would compromise at that. She said she experienced it a lot because of the position of the Counter. While they were not serving customers from the Counter, they were still working behind it at this time. Mrs Williams said that a sign was put up in the store telling customers that abuse would not be tolerated. Mr Smith agreed that the sign went up but said that this was done across all the stores. His evidence was that his experience of such behaviour from customers as a manager was once or twice per day. Mr Woodrow’s evidence was that this was one of his “easiest” experiences in retail and that the customers were great. COVID brought out the best in them. He accepted in cross-examination that it may be that 90% of people were understanding, but there might be 10% who went the other way and COVID did not bring out the best in them: “I didn’t see it, but it has potentially happened.” He accepted that customers might be more deferential to him as a manager. The Tribunal accepted Mrs Williams’s evidence about the frequency with which she experienced this. She may well have been on the receiving end of more such behaviour, both because of where she was located in the shop, and because customers were more deferential to (or might not identify) a manager (in a shirt and tie) than to a Counter colleague in a Morrisons uniform. 136a 270 Leave para 270 unchanged as follows: Pizzas are served to customers from the Pizza Counter in two ways: a. JH makes pizzas up to customer order (Figure 56); or b. JH makes pizzas in advance for customer self-service from the Counter. The Tribunal accepted Mrs Williams’s evidence that when she did the pizza making task, she did the whole task herself. She did not make pizzas and have somebody else wrap and label them. The Tribunal noted that for many of the tasks in the JD either the JH or a colleague she is working with will do the task. The frequency of doing the task, if relevant, is a separate matter. 137c 273 Leave wording of 273 unchanged as follows: JH aims to make around 50 – 60 pre-made pizzas on a typical day, taking up to two hours (including serving customers in between). The Tribunal accepted Mrs Williams’s evidence about the number of pizzas she can and does make in two hours. We noted her evidence about the number of pizza bases in a box, which informed her estimate of the number she makes. Mr Smith said that he had never seen Mrs Williams make so many pizzas, but he accepted in cross-examination that if she did not have interruptions, it was something she could achieve. He agreed she was one of the quicker colleagues at performing this task. 237 415 and Replace para 415 and 418 as follows: 415 The fryer oil is usually replaced once a week. During the period 2015 to April 2020 the JH completed this task approximately once a fortnight. After that she completed it less than once per month. 418 When JH cleans the fryer she does the whole task, as follows: JH empties the used M1/water into the sink and then carefully pushes the dolly containing the used oil buckets to a large blue barrel, also on a dolly, kept outside the Raw Room. JH lifts and carefully pours the used oil from the buckets into the barrel, which fill the barrel to around 2/3 full. The barrel is also used to store oil drained from the combi-oven (para 411). When full, JH pushes the barrel on the dolly, carefully, through the warehouse and (after putting on a yellow high visibility jacket) out into the goods yard (SP:H/I12), where JH leaves it for onward disposal. Mrs Williams was adamant that she did this task on a Tuesday evening with Ms Green when Ms Green was Meat and Fish Counters Manager. She had checked this with Ms Green recently, because she knew that Tuesday morning was wrong, but was not sure what day they did it. She gave a clear and persuasive description of how and why they did the task in the evening when they were working together. She said that it was different after Ms Green left and it was moved to a morning job because of a reduction in staffing on the Counter. It was done on Sunday morning then. She worked around one Sunday per month, but did not always clean the fryer when she did so. It was put to Mr Smith and he agreed that during 2021 and 2022 the fryer was cleaned on a Sunday morning. Mr Smith accepted that from 2015 to April 2020, when Ms Green was supervising, it was up to her to decide when the fryer was cleaned, although he suggested that Ms Green would have to clear it with the Store Manager if the fryer were turned off early. He said that he would be surprised if Ms Williams and Ms Green had been cleaning the fryer on a Tuesday evening because he was so passionate that it should be done on a morning and that he had awareness of when the oil was delivered and would see the fryer being cleaned the next morning. There is no dispute that cleaning the fryer and changing the oil was one of Mrs Williams’s duties. The relevance of when it was done is to understand how often Mrs Williams did it. The Tribunal accepted Mrs Williams’s evidence that when Ms Green was her supervisor, they cleaned the fryer on a Tuesday night. The Tribunal accepted her clear and consistent evidence as truthful and accurate, although this approach would have meant that the fryer was turned off early, and that the fryer oil would have been warm when it was emptied. We found that the task was shared equally with Ms Green, so Mrs Williams did it about half the time. They did that because they were the best two people to do it and Tuesday was the quietest evening. We do not suggest that Mr Smith was giving inaccurate evidence, but he was not working in the Deli and may not have seen when the fryer was being cleaned. 297 504 Replace para 504 as follows: JH serves customers prepared fish, or cuts fillets into smaller portions, but is not permitted to fillet or otherwise prepare fresh fish products. Customers occasionally (around once every two months on average) express mild disappointment towards JH if they require filleting etc and must await the return of the dedicated Fresh Fish colleague, which JH explains to the customer. The Tribunal accepted Mrs Williams’s evidence that she cuts fish fillets into smaller portions as described (and joints of meat: see Dispute 299) and that the former Store Manager, Nigel Stevenson, had approved this. She had continued to do so since Mr Stevenson had been replaced. Mr Smith did not know whether Mr Stevenson had instructed JH to do this. Mr Smith accepted that doing this was consistent with customer service training to “solve and resolve” and “find a way to fix it today” and agreed that it was a sensible step to take if Mr Stevenson said that. He had no knowledge of it. 299 507 Replace para 507 as follows: JH also covers the Butchery counter (SP:G/H9) in a similar way to the Fresh Fish counter, around two to three times per week, for around five minutes on each such occasion. JH’s service consists of serving either existing prepared fresh meat products or making simple cuts with a knife on a chopping board; for example, making a large joint smaller if requested. JH is not trained to fillet or otherwise prepare fresh meat. See reasoning in relation to dispute 297. 326 31A Replace para 31A as follows: Food safety and hygiene (including personal hygiene) Food and personal hygiene are central to JH’s work on the Counter. Morrisons require: that she adheres to use-by dates (para 33); that Counter equipment and work surfaces she uses are clean and sanitised (see Task H); that her personal hygiene is maintained to a high standard (para 405); that she avoids cross-contamination between raw/cooked products and related equipment/work areas (see for example para 70); that she uses cleaning products correctly and avoids contaminating products or work surfaces (para 401); that she observes the Chill Chain in respect of chilled products (para 41); that products she cooks have reached the required internal temperature (para 110); that she checks that cooked products are maintained at the required safe temperature when displayed on the Counter (para 111); that Counter products she provides to customers are cleanly and hygienically packaged and that the packaging is undamaged; that she promptly and hygienically disposes of Counter waste (see Task I); that allergen requirements/Natasha’s law are observed on the Counter (see for example para 221g). JH has received training in these issues from Morrisons - see Appendix 3. JH is trained that Morrisons colleagues and the business itself could be held legally accountable for failing to comply with the law. It was not for the Tribunal to determine as a matter of law the extent to which an individual could be liable to prosecution for breach of food safety legislation. The Tribunal found that it was appropriate in these findings of fact simply to refer to what the relevant training said without trying to resolve that underlying matter. 338 382A Replace para 382A as follows: Around once a month, expense items (for example, packaging used on the Counter such as plastic salad pots and Deli film) are delivered to the Store on a pallet. Typically, 10-15 boxes/items of expense items are taken from the pallet by a colleague (from another department) to the Counter. On other occasions, it is JH herself who moves those boxes from the pallet onto a wheeled trolley. If JH does this task, JH pushes the trolley to the relevant part of the Counter. In either case, JH then replenishes/stores these expenses on the relevant part of the Counter as at para 381. Typically, there will be no expense items remaining following this replenishment. On the occasions that there are remaining expense items, JH then pushes the trolley to the warehouse racking area and stores the expense items away, lifting and carrying the remaining expenses boxes/items onto the shelves or racking (see Figure 74). After the store re-fit in 2019, JH used wheeled stairs to access the racking. The number of boxes stored on the Counter and on the racking varies each time. JH does not know the size or weights of the expenses boxes or the distances involved. If JH both collects the expense items and stores them away, this process takes JH around 30 minutes. Otherwise, it typically takes her 10 to 15 minutes. Mrs Williams gave evidence that there was not much storage space on the Counter, so the excess went back to the warehouse. She said that she had always returned it herself and put it away. Sometimes it was a two-person job with one at the top and one at the bottom of the ladder. She was not aware of the existence of an “Expenses Champion.” Mr Woodrow said that he was the Expenses Champion. In oral evidence he said that he always put the excess items away. He placed an order weekly and put it away weekly. However, in his witness statement, he had said that there were occasions when he was not around to store the expenses items away, in which case colleagues did it themselves. He accepted that he had not given any instruction that colleagues should not put away excess expenses and that he did not wait around in the warehouse for them to bring the excess back. He accepted that quite possibly Mrs Williams had been sent by her manager to collect the expense items from the warehouse once per month. The Tribunal accepted Mrs Williams’s evidence that when she did the task of collecting and putting away the expenses, around once per month, she would take the excess back to the warehouse and put it away. That seemed to us to be consistent with her approach to her job, but also consistent with Mr Woodrow’s evidence that sometimes the colleagues would put the items away themselves. Narrative finding 1: Unloading deliveries The Tribunal found that the task of unloading deliveries was not a part of Ms Hoyle’s job and should be removed from the JD. The Tribunal’s reasons were: The Tribunal accepted Ms Hoyle’s evidence that she assisted with unloading deliveries during the five years five months she was a Checkout Team Leader. However, on her own case, this happened only three to five times and was for 15 to 30 minutes each time. The maximum time spent on the task was therefore 2 ½ hours. However, it may well have been less as Ms Hoyle could not remember doing it on five occasions – she was allowing for there being occasions she had not remembered. She could only remember doing it three times. Twice she had been asked by a manager to help and once she had offered to help. On one of the occasions, she was helping colleagues to unload the whole lorry; the other times it was just a few pallets. On one of the occasions, she had opened the gates to let the lorry in and on one she had let the lorry out. She had never attached the metal plate to bridge to the warehouse. She had once taken a delivery note from the driver and left it under the keyboard in the warehouse. The first issue in relation to the task of unloading deliveries is whether it should be included in the job description at all. The EAT held in Potter v North Cumbria Acute Hospitals NHS Trust

[2008] ICR 910

, that even though something was done in the relevant period, it may fall outside the role because it is not “a real part of the job”: There are in many employments…tasks which fall to be performed only occasionally or at long intervals, but that does not mean that they are not part of the package of tasks and responsibilities that requires to be evaluated (though their infrequency may be important in assessing the weight accorded to them); nor is the job to be regarded as different in the periods when such tasks are actually being performed and when they are not…. Fn7: Of course sometimes a task may last have been required to be performed so long ago that it can no longer be regarded as part of the job at all. If that is really established, there may indeed have been a job change. Drawing the dividing-line between tasks which are rarely performed but still a real part of the job and tasks which have fallen outside the scope of the job through desuetude may not be easy: much will depend on why the task has not in practice been performed. It is clear that tasks that are performed only infrequently may still be a “real part of the job” that requires to be evaluated, frequency being relevant to the weight afforded to the task in the evaluation. Further, the example of tasks that might not be within the job role explored in the footnote to the Potter judgment was essentially based on the premise that the task had fallen into disuse and was no longer a part of the job role. Here, the Tribunal accepts that Ms Hoyle did assist with unloading deliveries and that, in theory, she could be asked to do so again. This situation is therefore different from the Potter situation. However, we have concluded that assisting with unloading the deliveries was not a “real part of the job” of Checkout Team Leader. It was performed so infrequently that it cannot realistically affect the value of the work done and is properly described as de minimis. Ms Hoyle accepted that she performed the task for, at most, 2 ½ hours in her 5 years 5 months as a Checkout Team Leader. The Tribunal found that it may well have been less. It was simply something that she helped out with for very short periods of time on a very small number of occasions, no doubt in a very unusual set of circumstances that would lead to a Checkout Team Leader becoming involved in this task. Ms Hoyle did not need to be constantly ready to assist with unloading deliveries or to factor this possibility into her job in any way. She did not receive training specific to this task. As such, the Tribunal concluded that it would be wholly disproportionate, unnecessary and potentially misleading for this task to be included within the Checkout Team Leader job description. In doing so, we took into account that there are other tasks within the Job Description where, for example, Ms Hoyle uses manual pump trucks or works in the warehouse. Those features of her work are reflected elsewhere in the Job Description, in places where they properly form a significant part of her job role, and fall to be evaluated as such. Had we not reached this conclusion, we would have called on the parties to produce a substantially revised and reduced version of the whole of task 18 in the Job Description. As currently drafted, over 12 pages, the wording is appropriate for somebody who regularly assists with unloading deliveries and reads as such. It is not appropriate for somebody who has helped out with the task for very short periods on very rare occasions. The Tribunal considered that many of the agreed parts of task 18 in the Job Description do not accurately reflect the evidence given or the way in which Ms Hoyle was involved in assisting with this task. However, for the reasons explained, we concluded that this task does not in any meaningful sense form a part of Ms Hoyle’s job role and that it should not be included in the Job Description. ROD JD PARA TRIBUNAL FINDING WITH REASONS IN ITALICS 1GG 8.12(a) Retain the wording under “Detail” and replace the wording under “Further Detail” as follows: For example: a. There is time pressure to complete this task. The JH provides ad hoc assistance to the café when it is experiencing high levels of customer demand and requires additional staff assistance in order to continue to provide good customer service. That customer demand creates pressure. Ms Hoyle was clear that helping in the café put her under pressure. Mr Sheard accepted that there might be pressure from the customers but not “time” pressure. The Tribunal found that it was more accurate to describe this as “pressure” than “time pressure”: it could be pressure to serve customers and respond to their demands, and/or it could be pressure to do so in a timely way. 1TTT 24.20 Further Replace Further Detail (i) with: Detail (i) There are certain tasks involved in store close-down which must be completed, before the JH finishes her shift, which include:-

• making sure all team members’ breaks are taken;

• weighing the tills

• going with the Duty Manager while they cash up;

• Bringing in stock and A-boards

• closing the shutters to the Store and closing the underground car park. There are other tasks which should be completed prior to store close-down, although these tasks can be left for a subsequent shift (though this happens rarely). These are:

• asking Customer Assistants to gather the bins and tags, and to tidy/clean the checkouts and SCOs;

• Scanning waste. The JH endeavours to start these sub-tasks to allow enough time to complete them before the end of her shift and works as efficiently as she can to complete them. However, this is not always possible and she is regularly under pressure to complete them. It was put to Ms Hoyle in cross-examination that making sure breaks were taken was a close-down task. The Tribunal found that the other tasks “should” be done prior to close-down: Mr Sheard said that “in an ideal world” they would like to get it done but most team leaders would “pass something on” and that this was not a “major” problem. This suggested that the approach was that the tasks should be completed prior to close-down, but could be left if necessary. The Tribunal preferred Ms Hoyle’s evidence that she was not always able to start the sub-tasks sufficiently early to ensure they were completed by the end of her shift, because it would depend on customer demand, whether there were customers in the store and so on. Ms McKinlay accepted that sometimes customers would be in the store until 10:10pm. The Tribunal accepted Ms Hoyle’s evidence that she was therefore regularly under pressure to complete the tasks. This was the case even though she could delegate some of them. She still had to manage the process, and she could only delegate them if she was able to take somebody off a till. That again depended on customer demand. The fact that tasks were sometimes left to the next day suggests that there were time constraints. 2B 5.4(d) Replace 5.4(d) with: Sometimes, the JH is asked by a manager or a colleague on another department whether any of the colleagues working on the checkouts could assist with replenishment of other departments for a short period of time. If asked, the JH will decide whether to assign this task and to whom. The JH can only assign this task to a colleague if breaks are covered and the checkout queues are in line with acceptable CDQ levels. The JH will also take into account how busy the checkouts are, what other tasks she might assign to that colleague in the near future and how long the other department might require them for. Ms Hoyle agreed that the breaks and CDQ must be covered before she could loan a colleague. She was clear that the length of time the other department might require them for was relevant, e.g. if somebody was due to go home. The Tribunal accepted that she would take this into account, even though she could always recall the colleague from the other department if needed. Ms Hoyle’s approach of anticipating this might be more efficient if she knew a colleague would soon leave. Ms McKinlay agreed with this wording. 2U 18.11(f) & See general finding in relation to unloading deliveries. 6B 1.5(w)(vii) Replace 1.5(w)(vii) with: Around 50% of the time when doing store opening, the JH finds that pallets have been left out by the night team at the start of her shift. In these circumstances, the JH will use a manual pump truck to move the pallet to the store warehouse. If no manual pump truck is available (around once or twice a month before 2018 and around once every 2 months since then) JH will turn the pallet on its side and push the pallet to the warehouse. A pallet weighs approximately 18kg and the journey from the checkouts to the warehouse is approximately 100m. It takes approximately 5 minutes to return a pallet to the warehouse. The Tribunal accepted Ms Hoyle’s consistent evidence about frequency. The Tribunal found Ms McKinlay’s evidence about this unconvincing. In her witness statement she said that this happened about once every three months. In cross-examination she said that it happened once a week. She could not explain the difference. The Tribunal accepted Ms Hoyle’s evidence that if no manual pump truck was available she turned the pallet on its side and pushed it to the warehouse. The Tribunal did not accept Ms McKinlay’s assertion that this was a health and safety risk or in breach of training. The training material referenced by the Respondent explains how to handle a palletised load; it does not address returning the empty pallet to the warehouse. It was not put to Ms Hoyle that this was unsafe, in breach of training or physically difficult. The Tribunal found that it was unremarkable. Ms Hoyle did it as described and this was a way of doing her job. 6G 18.8 Further See general finding in relation to unloading deliveries. detail (ii) 6H 18.21 Further See general finding in relation to unloading deliveries. Detail (iv) 6P 18.18(b) See general finding in relation to unloading deliveries. (v) 10III 18.9(c) See general finding in relation to unloading deliveries. 27B 1.5(s) Replace 1.5(s) with: The JH decides the order in which she does the tasks involved with store opening. The most important tasks are adding cash to the self-scan checkouts, opening the checkouts and opening the shutters. Then the JH will remove any hazards (e.g. debris or pallets in the checkouts area). The checkouts and shutters must be opened before customers enter the store. Ideally the other tasks should be complete. The Tribunal found that it was overstating the position to say that Ms Hoyle prioritised clearing debris or pallets. It was more a case of dealing with them as the next task on the list. Otherwise, the Tribunal found that there was little real dispute. There was an expectation that certain tasks should be done before the store opened but acknowledgement that this might not always happen. 52 2.2(a) to (c) Replace 2.2(a) to (c) with: As a Checkout Team Leader, the JH might be asked by a manager to work on the checkouts if the store is busy or a colleague working on the checkouts requires a break and no checkout relief operators are otherwise available. This happens at least once a shift. In this kind of situation, the JH might work on the checkouts for anything from 15 minutes (if covering a shorter break) up to an hour or more (if assisting during busy periods). Alternatively, she might be alerted by the CDQ or identify for herself that the checkouts area is particularly busy and in need of additional assistance and decide to assist by opening another checkout herself or attending checkout lights. She would identify which colleagues performing the checkout task need help or where customers are queuing to identify where to assist. She would tell her manager that she was doing this. Around 50% of the time, a manager would ask the JH to work on the checkouts and around 50% of the time the JH would go on the checkout herself and tell her manager that she was doing this. When JH was working on the checkouts as Checkout Team Leader on an ad hoc basis, the duty manager or another checkout team leader would carry out other Checkout Team Leader tasks. The Tribunal accepted Ms Hoyle’s evidence that she was doing more than mechanistically following the CDQ or applying the one plus one principle. Ms McKinlay agreed that it was also a question of seeing what was coming down the aisle and whether there was likely to be a build-up of customers at any particular points. Further, the Customers Don’t Queue guidance explicitly tells colleagues that the HHT is a guide only and that they should also trust their judgment. The Tribunal did not find Mr Sheard’s evidence that the guidance applied to managers exercising their judgment but not team leaders persuasive. We preferred the evidence of the two people who performed the CTL role. 63 2.5(dd) Replace 2.5(dd) with: JH puts cash and vouchers into the tills and gives any applicable change. Colleagues are trained on how much to keep in the till and what excess notes to feed into the ICH machine. The procedure is that a maximum of £100 in £10 notes should be kept in the till. However, when she received her initial, on-the-job training, JH was trained by her colleague to keep £200 to £300 in notes in her till during busy parts of the day in case multiple customers requested cashback, and to reduce the amount later in the trading day, and she does so. The Respondent’s training materials are clear and unambiguous. However, the Tribunal accepted Ms Hoyle’s evidence about what she does and why. We also accepted her evidence that others do so, as she knows from weighing the tills at the end of the day. We found that this must be with the knowledge and tacit approval of her managers, because they must be aware from covering tills or from being involved in the cashing up processes of the amounts in the tills. We accepted Ms Hoyle’s evidence that she could not recall any manager ever querying this with her. We noted Ms McKinlay’s evidence that she would keep around £250 in cash in her till, albeit she said only £100 in £10 notes. 65B 2.12(c) Replace 2.12(c) with: When JH is assisting colleagues performing the checkout task, and the checkouts are getting very busy, then she may need to open more checkouts. The HHT CDQ live queuing system helps the JH to decide when to open additional checkouts. If she opens an additional checkout, 90% of the time she is prompted to do so by the HHT CDQ live queuing system. 10% of the time she does so based upon her exercising her judgment. These proportions were different for approximately 3 months in 2018 when the CDQ was not used due to a store refit and also during Covid (because social distancing meant that the CDQ system could not accurately read the levels of customers in the store). During these periods she only exercised her judgment. JH would see if colleagues in other departments were available to assist or might go on a checkout herself. She would do this either using a tannoy call, speaking to people in person or telephoning the manager and asking for a person to be allocated to the checkouts. She might work on the checkouts herself to serve those customers. There are occasions when the CDQ system will prompt the JH to open another checkout and they will not have the staff available to do so and so the JH or a manager will open a checkout without staffing it (a practice known as opening a 'ghost checkout'). See dispute 52 above. In relation to ghost checkouts, the Tribunal found that this practice occurs. The Tribunal has heard evidence of this in relation to other stores too. Mr Sheard accepted that the practice occurs, he just did not acknowledge the name. 124G 4.5(e) Replace 4.5(e) with: If JH is going to be finding someone on the shop floor to cover the checkouts/self-scan checkouts so that a colleague conducting those tasks can go on their break, then that substitute person needs to be trained on the relevant task. A list of trained relief operators is produced weekly. It should be placed in a folder with the daily rotas. If not, it can be printed. JH would generally write the names of colleagues who could provide checkout relief from the list on the side of the break rota, for ease of reference. The JH would also try to be aware of which people on the relief list were actually present in the store and update her handwritten list accordingly. Ms McKinlay agreed that she too might write the list of checkout reliefs on the break rota, so that she had it in front of her. This seemed to the Tribunal to be consistent with Ms Hoyle’s evidence and to indicate a more general practice of noting the names of the relief operators on the breaks rota. Ms McKinlay also said that she would check whether people on the relief list had called in sick. This, too, was more generally consistent with Ms Hoyle’s evidence that it was not simply a case of looking at the relief list. The Tribunal accepted Ms Hoyle’s evidence that she kept an eye on which trained checkout operators were in the store. If she had written their names on the breaks rota, it seemed to the Tribunal that she may well have crossed them off if she saw them leaving. 126A 4.12(a) & Retain the wording under “Detail (a)” and replace the wording under “Further Detail (a)” as follows: For example: a. Solving issues with rotas/breaks if someone calls in sick or requests a shift change. If the colleague who has called in sick or requested a shift change was on the rota for covering checkout breaks, then she would have to revisit the break rota and change it round to make it work. JH would ask around colleagues in store to see if they could cover breaks or would see if certain colleagues could stay later to cover breaks or if a member of staff - who was not supposed to work that day - could come in to do a shift. JH was either asked by a manager to do this or suggested to a manager that she could do this. This could happen once or twice a week. It would take about 10 minutes to revisit the break rota. The Tribunal found that Ms Hoyle’s alternative wording accurately reflected both her evidence and the Respondents’ in relation to managerial approval – either she was asked by a manager or she suggested a solution to the manager. The Tribunal found that around once per week was the best estimate of the frequency with which this happened. Ms Hoyle said once or twice per week and Ms McKinlay said once a week or once a fortnight. 129 4.5(l) Replace 4.5(l) with: Until September 2018, the JH reviewed the below reports (apart from CDQ) every 3-4 weeks. She reviewed the CDQ report on weekly basis. The task of reviewing the reports could take 5 minutes if there were no issues. If JH did pick up any issues which needed to be discussed with colleagues carrying out the checkout task and/or with managers, it would take longer to deal with. For example, she might spend up to 10-15 minutes dealing with the Un-Scanned Sales Report and Scanning Rates Report if she needed to have a discussion with a colleague or up to half an hour per checkout if the Checkout Over and Shorts Report flagged an issue. The parties agree in the light of Ms Hoyle’s evidence that she did not do this task after September 2018 when her shift pattern changed. The Team Leader “Week in the Life of” document confirmed that it was part of the CTL role to review customer metrics reports. The CTL role profile said that analysing department data and developing a plan of action with the checkout manager was one of the CTL’s tasks. The Tribunal accepted Ms Hoyle’s clear and detailed evidence about what she did in response to the reports and how long it might take. We did not accept that her only function was to read the reports and raise any issues with a manager. That was not consistent with her job description (e.g. about carrying out till investigations). Mr Sheard accepted that carrying out till investigations was part of the CTL role. Ms McKinlay gave evidence that if she knew a colleague was doing a lot of Department sales, she would discuss it with them and ask them not to put so many sales through. All of this was consistent with the JH having to read and, in some respects, act upon, the reports. If she had to carry out a till investigation when a number of colleagues had used the relevant checkout on the day in question, that might well take up to 30 minutes. The Tribunal found Ms Hoyle’s evidence accurate. 130A 4.5(s) Replace 4.5(s) with: JH would generate this report using a programme called Storeline. JH would select the previous week window (Monday to Sunday). The report lists all the colleagues trained to operate the checkouts and self-scan checkouts along with how many unscanned sales each team member had processed. At JH's store, she was instructed by management that if a colleague had more than around 4 unscanned items during a weekly period then the Checkout Team Leader who was reviewing the UnScanned Sales Report should speak to the relevant colleague to find out why they had a higher number of un-scanned items. JH would ask the colleague to consult a Checkout Team Leader in the event of issues with scanning items going forward. The Tribunal preferred Ms Hoyle’s evidence that she was instructed, when she first started, to speak to colleagues when they had more than around 4 unscanned items per week. The Respondent’s proposed wording – that she was instructed by management that if a colleague had more than around 4 unscanned items she may be asked by a manager to speak to the colleague, did not make sense. Ms McKinlay’s evidence about this in cross-examination was inconsistent – she initially said that she would speak to a colleague, then she said that she would only do so if asked. The Tribunal did not accept Ms Hoyle’s evidence in her witness statement about filling a form. Her initial evidence in cross-examination was that she did not remember ever filling a form in and that this was a task for customer service colleagues. The Tribunal found that this was accurate. 175 5.12(h) & Retain the wording under “Detail (h)” and replace the wording under “Further Detail (h)” as follows: h. Deciding the best way to transport stock to the shop floor. JH would decide the best way to transport the stock to the shop floor depending on the type of product and the volume required. For example, she might use a shopping trolley when replenishing the drinks fridge because she might be transporting loose drinks bottles. Other times, she might use a manual pump truck, metal cage or dollies. The Tribunal found that it was over-stating the position to say that Ms Hoyle “used her judgment” to decide how to transport stock to the shop floor. Although she made a decision about what equipment to use, we found that this was mainly covered by training, and it was generally likely to be clear which equipment was required. 180E 5.19(c) Replace 5.19(c) with: The shelves around the checkout are chest height and therefore this does not require stretching or bending. However, the drinks fridge and shelves around the store are at varying levels, ranging from around 18cm from the floor for the bottom shelf to around 175cm high, and so replenishment may require JH to crouch/bend and to stretch due to the varying levels of shelving. If required, the JH uses a ladder to reach the higher shelves and can sit on a footstool to replenish lower shelves but not the bottom shelf. The evidence about shelf heights was not clear. On the evidence before the Tribunal, we found that the approximate heights were 18cm and 175cm. Ms Hoyle accepted that she “very rarely” used a footstool to sit on to replenish lower shelves. She explained that she could not use a footstool to replenish the bottom shelf because she would need to reach to the back of it to replenish it, which she could not do while seated on a stool. The Tribunal accepted her evidence about that. 186 5.20 Further Replace “Further Detail (iii)” with: Detail

(iii) This task is particularly challenging during seasonal periods, when there is an increased volume of stock which must be replenished within the same timeframe (albeit there are additional colleagues and overtime to assist). There is also a higher number of customers in store when the JH is moving the stock, which can make it more difficult than normal to move around the shop floor and replenish on certain aisles. The Tribunal found that this task was “particularly challenging” during seasonal periods. Ms McKinlay agreed in cross-examination that it was challenging at such times and the Tribunal accepted Ms Hoyle’s evidence about this. 332A 10.18(b) & Replace the wording under “Detail (b)” and “Further Detail (b)” as follows: b. Lifting. Lifting cigarette boxes and lottery deliveries. The lottery deliveries weigh between 5kg – 10kg and the cigarette deliveries weigh less. If a delivery is received whilst the JH is covering the kiosk, she may assist with lifting and moving the boxes. The Tribunal accepted Mr Sheard’s evidence about the sorts of weights involved, which was consistent with the content of the deliveries as described by Ms Hoyle. We found that these weights might be considered heavier by some, as Ms McKinlay and Ms Hoyle both said they did, but not by others and that it was clearer to refer to this as “lifting” and to specify the weights involved. 358B 11.12(d) Replace 11.12(d) Further Detail with: JH completes the sub-tasks in order, but she may stop doing a sub-task and move onto another, for example if interrupted by a colleague requesting stamps. JH also ensures that the stamps and change order are placed in time to ensure that the delivery is made in time, which may mean doing this sub-task sooner. If she has time to do other less important tasks then she will do (for example, counting charity donations is not a task which JH does every day, it is done much less often and is not a priority task). Ms Hoyle accepted that she generally completes the tasks in order, but might not do so in certain, specific circumstances. The Tribunal found that her example about ensuring that the stamps and change were ordered in time should also be included, as Ms Hoyle was being proactive, not simply reacting to a colleague coming in, in that situation. 742 14.5(l) Retain wording for 14.5(l): The JH uses her knowledge from her training to arrange the bouquet. The Tribunal accepted Ms Hoyle’s clear and detailed evidence about how she dismantles and reassembles pre-made bouquets. We noted that she received training to perform the task. If all she was doing was removing and replacing cellophane, training of that kind would not have been required. Neither Mr Sheard nor Ms McKinlay had any personal knowledge of what this task entailed. 745 14.5(t) Replace 14.5(t) with: JH checks with the customer (if the customer is there) if they are happy with what JH is doing. It all depends on what the customer’s wants/demands are. The Tribunal accepted Ms Hoyle’s evidence about checking with the customer, which was consistent with the nature of the task she was in fact performing. See also dispute 742 above. 766 15.5(o) Delete 15.5(o) There was an auto-shut off to stop the gas once the balloon was correctly inflated. It was referred to in the balloon set up guide. The Tribunal found that there was no need to stop the gas before the auto shut off operated. Ms Hoyle did not say that she had ever experienced a foil balloon bursting when she was inflating it, only that she had heard balloons popping (it was not clear what type of balloons, nor in what circumstances). The Tribunal found that stopping the gas before the auto shut off was not a way of Ms Hoyle doing her job. It was an unnecessary precaution she was taking. 797A 16.5(k) Replace 16.5(k) with: However, in some circumstances, such as when the order is accepted before checking that the items are in stock, the JH will be required to include substitutions as recommended by the app. When the service was first introduced, no substitutions were permitted (although on a very small number of occasions a manager might have instructed the JH to substitute e.g. 2 x 150g chicken for 1 x 300g.) The Tribunal found that the Claimant was not using her discretion to pick similar items. Initially no substitutions were permitted. That was clear from the policy documentation, although Ms Hoyle said that she had not seen that. However, in cross-examination, her answers were all about occasions when a manager had instructed her to make a substitute. She did not refer to exercising her discretion. The Tribunal found that she was not doing so. That was consistent with Ms McKinlay’s evidence and Mr Sheard’s. Once substitutes were allowed, this was governed by the app. 797D 16.12 Further Delete 16.12 Further Detail (iii): Detail (iii) The Tribunal found that this was not an example of problem solving. As above, the examples given by the Claimant in cross-examination were all of occasions when a manager instructed her to do something. 815A 17.2(a) Replace 17.2(a) with: The Respondent employs security teams and any security issues are a Store Manager (or Manager in Charge) responsibility. The policy states that colleagues who witness an incident or suspect shoplifting should inform security or the Manager in Charge. Sometimes the JH may be asked to assist security/management with unruly customers or shoplifters. By way of example, she was asked to sit with a female shoplifter until the police arrived at the store. On other occasions, the security guard would ask the JH to accompany them and assist with speaking to young people causing trouble in the store. On other occasions, the JH may offer or provide her assistance voluntarily. For example, she would telephone the police if they had trouble with particular customers and she spoke to young people on a number of occasions who were riding their bikes and scooters in the underground car park or on the travellator. Other examples of assistance are provided below. Ms Hoyle accepted in cross-examination that she would notify the Manager in Charge or Security, and that is what the policy says. 815C 17.4(b) Replace 17.4(b) with: JH assists security with shoplifters or unruly customers/youths. JH may also deal with security issues alongside a number of other colleagues/managers/police. This section is about working with people. The Tribunal was satisfied that Ms Hoyle assisted security and worked alongside other colleagues when dealing with security issues. See below. 815E 17.5(e) Replace 17.5(e) (i) to ((v) with: Some examples of security issues which JH has dealt with are: i. Youths entered the store disabled toilets and vandalised them. JH notified cleaners and management of the issue. ii. A kiosk colleague flagged to the JH that she believed two youths were using a customer's contactless card that did not belong to them. The JH challenged the youths and was able to obtain the card and the shopping purchased from them. The JH telephoned the police to report the issue. iii. For repeat shoplifters, the JH would, if she witnessed an incident, telephone the police and report the incident. She would also have discussions with her managers about whether or not a banning order should be issued to bar a particular customer from the store although the manager would take the final decision (sometimes she might initiate these conversations and sometimes her manager might initiate these conversations). iv. If customers entered the store and were acting suspiciously then the JH would keep an eye on them and notify management and security who might do similarly (for example if they were spotted ‘boxing’ their trolleys this is where they will place expensive items in the middle of the trolley and conceal it by placing boxes/crisps/cushions around the edges). v. The JH can recall approaching shoplifters on four occasions. Once, the JH followed a shoplifter out of the store with a colleague, but the shoplifter ran away. On the second occasion, she approached the shoplifter and asked her to return the clothing she had stolen - the shoplifter dropped the clothing and ran away. On the third occasion, a couple with children walked out of the store with a trolley full of shopping including a Henry Hoover (valued at about £200 - £300) and the JH followed them out of the store and intervened. One of them tried to pull the trolley but the JH placed her hand on the trolley to stop them and the shoplifter eventually left. On the fourth occasion, the JH recalls approaching a customer who had tried to shoplift a trolley containing lots of bottles of alcohol (valued at about £600-£700) and asking them to leave the trolley. The Tribunal accepted Ms Hoyle’s evidence about what she did on these occasions, which was fundamentally not disputed. We have made minor changes of wording. The real issue was whether this was a way of doing her job, or whether she was choosing to do something that was not a way of doing her job. The Tribunal noted that some of the Claimant’s interventions, in particular in relation to approaching shoplifters, went beyond the examples in the training documentation about how to deter shoplifters. However, we accepted her evidence that management were aware of what she did and did not tell her that she should not behave in this way. The fact that she would not have been disciplined if she had taken a more cautious approach, or that Ms McKinlay might have taken a more cautious approach, does not necessarily mean that what Ms Hoyle did was not a way of doing her job. There was no evidence that during the period of five years five months that Ms Hoyle was CTL any manager told her to take a more cautious approach to security issues, or that she was behaving inappropriately or should stop and she was not subjected to disciplinary action in respect of any of these events. The Tribunal found that Ms Hoyle’s managers at least tacitly approved her approach and that it was a way of doing her job. 815F 17.5(b) Replace 17.5(b) with: At times, a call might be made over the store tannoy for “Mr Black/Mr White” or “Mrs Red/Mrs Amber” to attend the store entrance. These were to alert security, managers and other colleagues to potential security issues. The majority of the time the JH would attend to provide assistance if she was available. This would happen in particular during evening shifts, when there are fewer managers working on the shop floor. She may also be asked by a manager to attend. The frequency with which tannoy alerts were made was not disputed prior to the hearing and was therefore not dealt with in the evidence, apart from in passing by Ms McKinlay. The Tribunal found that the appropriate wording was the original wording “At times.” The Tribunal found that attending in response to such tannoy alerts if possible and appropriate was a part of Ms Hoyle’s job. Ms McKinlay agreed that she would go to the area and that most staff would go because it would be something serious. This was evidently the practice and there was no evidence of any manager telling Ms Hoyle (or Ms McKinlay) not to respond to the tannoy announcement in this way. 815G 17.5(d) Replace 17.5(d) with: Thereafter, JH will follow any instructions provided by the security team or a Manager, otherwise she will decide how to respond to the situation. Ms Hoyle accepted that she would follow instructions from a manager leading a security situation. However, this part of the JD is also concerned with situations where Ms Hoyle is called by the Kiosk or tannoy to go to the store entrance or kiosk area. The examples that follow para 17.5D (in para 17.5E, see above) make clear that there are occasions when the Ms Hoyle is not following direct instructions, but is herself determining what actions to take. As explained, the Tribunal found that this is a part of her job. 815L 17.11(e) Replace 17.11(e)(i) to

(iv) with: (i) to (iv) A security issue could be a constantly evolving and potentially dangerous situation and JH must adapt to this. Whilst it will usually be a manager leading the situation, there may be occasions when the JH assesses the situation and makes decisions about whether to involve a manager or call the police when dealing with a security issue. The Tribunal accepted the Respondent’s submission that the first sentence is subjective and evaluative and adds nothing meaningful to the JD. Ms McKinlay agreed that a security issue could be constantly evolving and potentially dangerous and the Tribunal found that it was. The Tribunal was not satisfied that this meant that the JH inevitably had to adapt to the situation. Ms Hoyle accepted that a manager would usually lead the situation and that it would be dealt with as a team. The Tribunal found that Ms Hoyle was not “predicting” what a shoplifter might do, but she was making assessments about appropriate actions in some situations, and this is reflected in the words “assesses the situation” inserted in the previous paragraph. 842 18.6 Further See general finding in relation to unloading deliveries. Detail iv 844 18.11 Further See general finding in relation to unloading deliveries. Detail ii) 846 18.11D See general finding in relation to unloading deliveries. 847 18.11E See general finding in relation to unloading deliveries. 851 18.11J See general finding in relation to unloading deliveries. 864A 18.22 See general finding in relation to unloading deliveries. 865 18.24A See general finding in relation to unloading deliveries. 866 18.24B See general finding in relation to unloading deliveries. 852B 20.2(b) Keep original wording for 20.2(b): … asks her colleagues to carry out their online training… See dispute 854 below 854 20.2(a) Replace 20.2(a) with: JH carried out her own training (or asked colleagues to carry out their training in accordance with a list of who still needed to complete training provided to her by the Personnel department) at any point during her shift, usually during less busy periods. The JH selected when colleagues would be released from the till to go and complete their training, typically based on breaks and how many tills needed to be open. Her managers expected her to ensure that all colleagues working on the checkouts had completed their training by the deadline. The CTL Ways of Working document says that the CTL is responsible for ensuring all training is completed and up-to-date for their group of colleagues. This section of the JD must be read as a whole. Para 20.2 is only dealing with timings. The way the task is carried out is dealt with from para 20.5m onwards. That makes clear that Ms Hoyle will be given a list of who is to be trained and what steps she then takes. In that context, the Tribunal found that it is not necessary or accurate to say “when asked by a manager”. The Tribunal considered that the description of what Ms Hoyle does should be more factual and less descriptive and that is reflected in our wording above. 859 20.5(k) Begin final sentence of 20.5(k) with: JH may choose to review these in her own time … The Tribunal preferred the Respondents’ evidence about this. Mr Sheard and Ms McKinlay said that the bulletins were produced approximately once every two weeks, were short – about one page of A4 – and were usually printed out and left on the checkout. Mr Sheard explained that they usually needed immediate action, so it would not make sense to store them up and read at home. Ms Hoyle accepted that “some” of the bulletins were short and “a lot of them” were printed out for her. Ms McKinlay said that she had enough time to read them at work. The Tribunal found that this was a task that Ms Hoyle could and should have completed at work. It was her choice to review the bulletins in her own time. 949 24.1 Replace 24.1 with: Closing the store at the end of the trading day including: a. Weighing tills. b. Emptying the tags and hangers (to the extent any are left after the trading day). c. Scanning waste (to the extent any is left after the trading day). d. turning the key which closes the doors and shutters. e. Bringing stock and A-boards in from the foyer.

f. Accompanying a colleague to remove cash from the tills and self-scan checkouts (when the store is shut) or, once every one to two months, doing this alone, having notified the duty manager. The Tribunal preferred Ms Hoyle’s evidence about this. She acknowledged that this was a dual-controlled task, but was clear that she had nonetheless done this task alone with approval from the duty manager, and was able to name managers who had approved her doing so. 974 22.2(d) Delete task The Tribunal preferred the Respondent’s evidence in relation to the cigarette count. Given the way in which Ms Hoyle’s evidence about stock-taking has changed, the Tribunal found that most likely, given the passage of time, her recollections of performing wall-to-wall stock taking have become confused with carrying out specific cigarette counts. We have no doubt that she did sometimes count cigarettes, but we find that when doing so it was as part of the wall-to-wall stock taking that she performed as voluntary overtime. That is what she is recalling when she describes cigarette counts. That explains her evidence about the task taking 4-5 hours, which has not changed despite the evolution of the JD, and which seems to the Tribunal to be an implausible amount of time for two people to perform a cigarette count. We prefer Ms McKinlay’s evidence about the approximately six-monthly cigarette counts, instigated by the Customer Services Manager: they are done during working hours, they are done by the Kiosk team (shelves) and the Stock and Systems team (bunker) and they do not take 4 to 5 hours. For this reason, carrying out cigarette counts was not part of Ms Hoyle’s job. 975 22.2E & EA See Dispute 974. 976 22.2F See dispute 974. 978 22.5S See dispute 974. 982 22.5Six See dispute 974 985 22.21A See dispute 974. 989 23.1(a) Replace 23.1(a) with: JH regularly assists the Customer Assistants with the cleaning of the checkouts at the end of each day. Ms Hoyle accepted that the Customer Assistants would clean the checkouts at the end of the day, but said that she would often help, for example if she needed the Customer Assistant on a checkout. Ms Hoyle regularly worked a late shift. Ms McKinlay agreed that she would join in with the Customer Assistants if needed. 1005 23.5 (gg) Replace 23.5(gg) with: When each of the above areas was cleaned as part of the yearly deep clean, the JH would be required to tick/sign the written record/sheet to confirm that the specific area had been cleaned. Responsibility for planning the deep clean overall and ensuring that it had been carried out was the Manager’s. Ms Hoyle and Ms McKinlay both confirmed that they were required to confirm in writing that each area had been cleaned. The Tribunal did not consider that the precise terminology was of any significance. However, Ms Hoyle agreed that it was the Manager who planned the deep clean and the Tribunal considered that this should be made clear in the JD, so that the level of Ms Hoyle’s responsibility was clear. 1010 23.21(a) Replace 23.21(a) with: JH must be aware of customers and colleagues in the checkout area/front end as well as equipment, as these can be a safety hazard if collisions occur. Ms Hoyle gave a detailed description in her witness statement (para 146) of the cleaning equipment she might use. This includes mops and buckets, vacuums and wet floor signs. The Tribunal accepted that if using such equipment in the checkout area the JH would need to be aware of customers and colleagues and equipment as described. 10 27 Replace para 27 with: Staffing levels in the Petrol Station during the Relevant Period have slightly decreased, with permanent staff who are petrol station competent (i.e. those colleagues who have received the required training to work in the Petrol Station (paragraph 376)) leaving and often not being replaced. At the start of the Relevant Period, the tasks were largely carried out solely by colleagues designated as petrol station checkout operators. However, the Shopping task (see paragraphs 106 to 115) is now carried out on occasion by colleagues who are not petrol station competent. JH is subject to some time pressure due to the need to have the Petrol Station prepared ready for the trading day when completing an early shift or when needing to close the Petrol Station by the end of JH’s shift on a late shift, especially when lone working (paragraph 28). This is the JD for Mrs Gage. The Tribunal did not consider it relevant to include information about whether JH’s colleagues were also under time pressure where they are not performing a shared task. Mrs Gage’s evidence was that she was subject to some time pressure to complete all the necessary tasks in the time available. Mr McCormick provided statistics but was not able to comment on whether there was time pressure. Mrs Roberts agreed that there were a number of tasks that had to be completed in 15 minutes to get the Petrol Station ready for opening and that the JH could not be “leisurely” and had to be brisk about it. The Tribunal found that the JH was subject to some time pressure in those circumstances. She was subject to an expectation, supported by written documentation, that she would complete certain tasks within a relatively short time frame. A number of those tasks had to be complete so that the Petrol Station could open to customers on time. This was not simply JH feeling some time pressure. 12 28 Replace para 28 with: Lone working JH can be required to work alone without any colleague present in the Petrol Station; this is referred to as "lone working". JH can be lone working for a portion or the entirety of her shift. JH worked alone for all of her shift approximately once every fortnight from 2021 and on average once a week from 2022 until the end of the Relevant Period. (Prior to 2021, JH rarely did lone working). Whilst lone working, for safety reasons, JH is required to remain in the locked Till Area (see paragraph 11(b)(ii)) when any customer is present in the Shop or filling up. At least once during each shift when JH is working alone, a customer enters the Shop or requests fuel at one of the Pumps whilst JH is away from the till and completing a task in the Shop Area. JH then returns to the Till Area in order to serve the customer. Whilst lone working, JH must also not leave the Shop open and unlocked when she is not present inside. Due to this, the time and manner in which JH can complete specific tasks, such as replenishment (see paragraphs 102 to 139) and the opening and closing of the Petrol Station, differs when JH is lone working. This JD highlights the main differences where relevant. However, in general, when working alone JH is required to complete tasks in the Forecourt/Shop Area between customers being present in the Shop, which may take longer, and is unable to cooperate with a colleague to ensure tasks are completed. When lone working, if JH requires assistance, she contacts a Manager to arrange assistance. A Lone Working Risk Assessment is required to be completed for those lone working. Lone working in the relatively isolated and public-facing working environment of the Petrol Station exposes JH to an increased risk to her security and safety compared with when she is not lone working, although the risk is still assessed as low (with mitigation measures in place). Morrisons training materials and risk assessments make clear that when lone working their employees should be provided with a “man down” phone for their safety. However, there is no “man down” phone in the Halifax PFS. The JH is provided with a telephone and alongside the screen, the Till Area also contains two emergency stop buttons, two armed response buttons per till, and a bandit screen which can be used should JH feel unsafe or believe it is necessary to do so. Depending on the manager who is on shift when JH is lone working, they may contact her to check if she is okay. Mrs Gage gave evidence about how often she worked a whole shift alone, which was not contradicted by evidence from the Respondent. Mrs Roberts was not able to say whether or not Mrs Gage performed complete lone working shifts on her own. Mrs Gage accepted that the effect of lone working was that tasks may take longer because she would have to interrupt them when dealing with customers. She also accepted that if she needed assistance, she could contact her manager. Mrs Roberts’s evidence was not consistent with the agreed position that Mrs Gage did leave the till area during a lone working shift, nor did her position appear to the Tribunal realistic, given the nature of the tasks to be performed during a shift. We did not find it helpful in relation to this issue. The Tribunal found that there is an increased risk to the JH’s safety when she is lone working: that is reflected in the policy that lone working should be avoided where possible and in the requirement for mitigation measures for when JH is lone working. However, the increased risk still falls in the low category (and is assessed as low even without a “man down” phone). Mrs Gage accepted that the various safety mechanisms were in place and that a manager would sometimes call her to check she was okay. 14b 31 Replace para 31 with: 14e From the start of the Relevant Period to the end of May 2020, JH worked some shifts alongside a manager in the Petrol Station. Also, until approximately August 2014, a colleague also carried out the role of Petrol Station Supervisor. Prior to September 2016, the Petrol Station Manager was present in the Petrol Station for the entirety of the shifts that they worked. From approximately September 2016, the manager with responsibility for the Petrol Station also had responsibility for the Kiosk, Customer Services Desk and Car Park departments in the Main Store. This resulted in the Petrol Station Manager spending some of their shift in the Main Store, and away from the Petrol Station. Also, the Petrol Station Manager was not on shift for the entirety of the Petrol Station's opening hours. From approximately 2016 to May 2020, JH worked on average approximately three shifts a week where the Petrol Station Manager was not present in the Petrol Station for the vast majority of her shift. From June 2020, the Customer Services Manager, who now had responsibility for the Petrol Station amongst other departments, did not work any shifts in the Petrol Station. From June 2020 onwards, and when a manager was not on shift/present in the Petrol Station prior to this date, JH has not been/was not directly supervised whilst working in the Petrol Station but was subject to the instruction of a manager if they gave one. If a problem arose that required assistance from a manager, and a manager was not present, JH phoned the Main Store to speak to a manager. There is a mobile phone that is carried by a manager in store which JH calls from the Petrol Station using the internal telephone number "170". If the manager carrying the 170 mobile phone is not available, JH phones the 171 mobile phone, which is also held by a manager. If JH cannot reach a manager after calling these numbers, JH telephones the Kiosk in the Main Store to ask that a call is put out for a manager to contact the Petrol Station. Since June 2020, and when a manager was not on shift/present in the Petrol Station prior to this date, other than when a manager’s authorisation or consent is required for a specific task (such as for refunds over £9.00), JH works without direct managerial supervision, completing the tasks described in this JD in line with Morrisons’ procedures and her training. The Tribunal accepted Mrs Gage’s recollection that for the majority of her shift between 2016 and 2020 the Petrol Station Manager was not present in the petrol station. However, we found that this was likely to be the result of both the increased responsibilities of the Petrol Station Manager and the differences in shift patterns of Mrs Gage and the Petrol Station Manager. Mrs Roberts was not able to contradict Mrs Gage’s evidence in relation to the period June 2020 onwards because she had left the store. Mrs Gage accepted that whilst she was not directly supervised, she was subject to her manager’s instructions whilst on shift. Mrs Gage explained that she calls 170 and then 171, if 170 is not answered. She does not bother with the 172 or 173 numbers because she does not know if anybody is carrying those phones at that time. It is better simply to call the kiosk at that stage. She accepted that a manager should and would answer. Mrs Roberts eventually accepted that potentially the 170 number might not be answered immediately. The Tribunal found that this must be right – sometimes the Manager would be already speaking to someone else or engaged with a customer. Presumably that is why there is also 171, 172 etc. However, Mrs Gage accepted that she will be able to contact a manager using 170, 171 or the kiosk. 50 104 Replace 104 with: Whilst completing the date check, JH looks for any gaps or low stock of particular products in the Shop Area and the Storeroom. Should there be any gaps or low stock, JH writes down the products required on a ‘Transfer of products from store to Petrol Station’ form, also known as a ‘Shopping List’. JH includes the date, description of product, and quantity required. The products written on the shopping list are based on the planogram and the weekly Petrol Station Bulletin, which includes a number of key deals to help drive trade in the Petrol Station and the number of these items that have already been sold. Whilst JH completes the Shopping list, JH also considers which products are selling well, the number of items able to be placed on the Petrol Station’s Fixtures, and any period in which the Main Store may be closed and therefore the Petrol Station will experience a higher level of custom. Finally, JH factors any offers or seasonal demands into the number of products she intends to get whilst Shopping. The Tribunal preferred Mrs Gage’s evidence about this, describing how she plans her Shopping List based on the factors identified. For example, she knows that there will be high demand for toilet roll on Sunday after the Main Store has closed, so she puts extra on the Shopping List to ensure there is enough at the Petrol Station to meet that demand, without having to carry out another shopping trip. Mrs Roberts accepted that the planogram only identifies the number of facings of the product, not how far back on the shelf it should be stocked. It was clear that Mrs Gage would need to decide how much of an item to buy. The Tribunal found that Mrs Roberts’s evidence about this initially had an air of unreality, for example in relation to stocking additional toilet rolls on a Sunday. She appeared to take an extreme position, rather than accept that what Mrs Gage does is sensible and in the customers’ interests. Eventually, she accepted that there were some factors that might lead Mrs Gage to stock up on particular products. 55 114 Replace para 114 with: Whilst walking around the Main Store, if the JH knows that there is a space in the seasonal section of the Shop Area which cannot be filled due to the relevant product stated on the planogram being out of stock, JH looks whether there are any promotional items in the Main Store suitable for this section not currently on offer in the Petrol Station. If there are, JH checks whether the terms of the promotion are also valid in the Petrol Station by performing a price enquiry (see para 311). If the offer is valid in the Petrol Station and the JH believes it may sell well, the JH obtains the product and adds it to the Shopping List (see para 132 for further information.) Mrs Gage’s evidence was that in the specific situation where there was a gap in the seasonal section of the Shop Area that she could not fill because the product was out of stock, and which she could not fill by facing across the adjacent products because they were not available, she would select a comparable product, such as Dairy Milk for Heroes or Shortbread for Jaffa Cakes, she would add those items to the Shopping List and merchandise them in the gap. She would not seek a manager’s approval in those circumstances. This was a practice she and her colleagues followed. They had not been instructed to do so. Mrs Gage said in her witness statement that her managers were aware that she and her colleagues sometimes deviated from the planogram, and she did not remember them ever asking her not to do this. Mrs Roberts’s evidence was uncompromising: she said that a planogram was a planogram and must be adhered to. If there was a gap, it was there for a reason and must be left. This was so, even though the gap in the Main Store would have triggered a re-order of the product and this would not be affected by the lack of a gap in the Petrol Station. She could not say whether or not Mrs Gage’s managers had been aware of her acting in this way or had authorised it. The Tribunal accepted Mrs Gage’s evidence about what she did. The real issue was whether it was authorised by her managers. Mrs Gage’s clear evidence was that her managers were aware and she did not remember them ever telling her not to do so. Mrs Roberts could not comment on that. The Tribunal accepted Mrs Gage’s evidence that this was, at least, tacitly approved by her managers in those circumstances and was a way of doing her job. 62 132 Replace para 132 to 132D with: 132. Where possible JH ensures that she follows the planogram in respect of the products sold in the Shop Area, including their position on the Fixtures, and the number of facings. However, JH may deviate from the planogram or obtain more or less of certain products than will fill the shelves in the following circumstances: 132A. Firstly, in order to make sure the shelves of the Petrol Station remain as full as possible for customers, where there is limited/no stock in the Main Store to replenish a product sold in the Petrol Station for a long period of time (approximately 3 or more days), JH obtains a replacement product to fill the gap. If she cannot face across with the adjacent products or use a “like for like” replacement (e.g. a different sized bottle of Ketchup or Cola) she may choose a “comparable” replacement product from the Main Store (e.g. Barbeque Sauce for Ketchup). When choosing the product, JH again considers the product’s relevant Product Group, what would sell well in the Petrol Station, the availability of stock in the Main Store, and the manufacturer/brand. When there is sufficient stock of the product which was previously low in stock/out of stock, JH will readjust the products merchandised in the Petrol Station to fit the planogram again. 132B. Secondly, on one occasion in the Relevant Period, the planogram denoted two locations in the Shop Area for the same product where the distance between the two locations was small. JH obtained a different product for one of the locations noted on the planogram. When choosing the replacement product, JH took into account the relevant Product Group, the manufacturer/brand of the product, what would sell well in the Petrol Station, and the availability of stock in the Main Store. 132C. Thirdly, occasionally, JH will obtain the number of products which she believes will likely match customer demand. For example, due to there being a higher customer demand for milk than the planogram provides for, to make sure that there was the required availability for customers, JH (on her manager’s instruction) increased the number of facings for the milk in the shop area. Also, on very rare occasions, when Shopping for a new product that has been added to the planogram, JH considers the level of stock that will realistically be sold in the Petrol Station, and only obtains the amount of items JH believes are likely to be needed. This ensures excess stock is not placed onto the Petrol Station Fixtures, in order to minimise waste. On one occasion JH substituted the new product entirely. Finally, in relation to flowers, whilst the planogram specifies that there should be three £15 bunches of flowers, for the majority of the year, JH obtains only one £15 bunch as she knows that they are unlikely to sell more than this. Instead, JH only obtains more bunches at the higher price point when the seasonal demand may mean there will be a higher demand (e.g. Valentine’s Day and Mother’s Day). The Tribunal accepted Mrs Gage’s evidence that she sometimes deviates from the planogram in some, limited circumstances. We noted Mrs Roberts’s uncompromising evidence that the planogram was the planogram and any gap should be left because it was there for a reason, but that was inconsistent even with the Respondent’s own position, that where possible colleagues should face across with the adjacent product. In relation to paragraph 132A: see reasoning for Dispute 55 above. In relation to 132B, the only example Mrs Gage gave of merchandising a product in a single location when two are specified related to grated cheese. When asked if there were other examples, she said that she believed there were but colleagues may have dealt with them. The Tribunal found that Mrs Gage was only involved in one instance during the Relevant Period. We accepted her evidence that a colleague told the manager after the event and that the manager approved what they had done. The Tribunal also noted Mrs Gage’s evidence that a manager (Mr Molloy) had once instructed them not to follow a new planogram that reduced the number of milk facings in the Shop Area. This, too, demonstrated managerial approval of deviating from the planogram. Mrs Gage’s evidence about the milk facings was that this was her manager’s instruction. We accepted her evidence that she will not fill the shelves with something that is unlikely to sell, e.g. yogurts, but will simply obtain a very small number of items to cover the facings. She gave clear and convincing evidence that she reduces waste by only just covering the facings for products that do not sell in high volume, e.g. yogurts. Likewise in relation to expensive bunches of flowers. Otherwise, she would have to return multiple yogurts to the main store to be marked down. The Tribunal accepted her evidence about the occasion on which she substituted hummus with a tuna sandwich filler that sold well. She did not give any other example. The Tribunal accepted that (apart from facing across and like for like replacement) the general policy from Head Office is that the planogram must not be altered. However, we accepted Mrs Gage’s evidence about what actually happened in the Petrol Station, and that this was done with the express or tacit approval of her managers. She was able to name managers when asked. Mrs Roberts was not in a position to contradict that evidence. She had managed the Petrol Station for less than half of the relevant period, and mainly there was another manager between her and Mrs Gage. 63 133 Replace para 133 with: In addition to the usual products sold, the planogram and the petrol station bulletin includes information of the promotions which should be in place in the Shop and when they will end. For grocery products on promotion, JH uses this information to inform the amount of a product which JH should obtain during the Shopping in the event JH believes the offer will be popular in the Petrol Station. Mrs Roberts agreed that Mrs Gage would do this. 65b 138 Replace para 138 with: Previously, Shippers were provided to the Petrol Station in a flat pack format. JH was required to assemble the displays using the instructions provided by the supplier. The standard Shippers typically took JH approximately ten minutes to complete on average. She completed one once every two to three months. Some Shippers were more complicated because they had plastic screws or washers, included more steps to assemble them, or were faulty (for instance because the holes did not line up properly). These took up to two hours to complete. The JH built one of these on her own once during the RP and built them with colleagues on other occasions. These more complicated Shippers arrived around once every six months until 2016. After assembling the Shipper, JH then merchandised the products on the display and affixed the SEL to it. There was little dispute about this following cross-examination. Mrs Gage accepted the frequency and timings put forward by the Respondent. The Respondent accepted that some Shippers could include screws and washers. Mrs Gage explained what she meant by faulty. She explained that when she had a colleague were building a complex Shipper one would read and provide the instructions and the other would do the building. The Tribunal considered that they were working together in those circumstances, rather than one “assisting” the other. 84b 166 Replace para 166 with: When JH tries to replenish some products, there may be limited or no stock in both the Petrol Station and the Main Store. In these circumstances, JH places an “Out-of-Stock” sticker onto the relevant SEL. JH continues to try to obtain this product after any deliveries are made to the Main Store. When the product is out of stock for more than a few days, JH chooses to obtain an alternative product during Shopping and merchandises this in the Shop (see paragraph 132 to 132A). On average during the Relevant Period the level of stock of a product in the Petrol Station and Main Store was very low or was out of stock approximately twice a month. See reasoning in relation to 132 and 132A above. 92 177 Replace para 177 with: Approximately once every four to five months, JH does an ad-hoc stock check for a motoring product (e.g. Ad-Blu, de-icer, motoring oil or screen wash) during the replenishment of the Shop Area and/or bunkers. For example, if JH notices a particular motoring product has been low in stock for some time, JH scans the product using the HHT to check the number of items of that product the central stock management system states there should be. When doing the Shopping task, JH checks this against the number of items of the product (if any) in the Petrol Station, Main Store and Store Warehouse. If there is a difference between the level of stock stated on the system against that actually present in the Store, JH raises this with a manager and requests that the stock levels are changed. This is important to ensure that the Store is receiving the correct level of stock in deliveries. It takes JH approximately five to seven minutes to complete an ad-hoc stock check where there is an issue with the level of stock. The Tribunal accepted Mrs Gage’s evidence about this. She agreed that if she found a discrepancy she would raise it with a manager. Although reluctant, Mrs Roberts agreed that this could happen and that this was the correct process for correcting the stock record. Mrs Roberts also accepted that Mrs Gage might do this without being prompted by a manager. The Tribunal accepted Mrs Gage’s evidence that it does arise that the Petrol Station has little or no stock but does not receive a delivery, because of a mismatch between the stock record and the actual amount of product in stock in the whole Store, and that she takes these steps to address it. 107b 211 Replace para 211 from third sentence onwards with: When told by a customer that this has happened, JH tells the customer not to start their vehicle’s engine but to just place their keys in the ignition to allow the car to be pushed. If the vehicle is up to four-door family car size, JH assists the customer in pushing it approximately 10 metres to a safe location on the Forecourt, usually down the side of the Shop to ensure that the parking bays are kept free for other customers. If the vehicle is large or JH is unable to assist due to lone working, JH calls the Main Store to ask a manager for some colleagues to be sent to the Petrol Station to help her and/or the customer to push the vehicle. JH tells the customer that they will need to contact a vehicle draining company to arrange for the wrong fuel to be extracted. JH then completes the sale for the incorrect fuel used by the customer. ... The Tribunal accepted Mrs Gage’s evidence that she can and does push vehicles up to four-door family car size in this way. This is within her capabilities, as it is for many people. The fact that Mrs Roberts has not done so does not mean that Mrs Gage cannot, nor that doing this puts Mrs Gage at risk. We accepted Mrs Gage’s evidence that this was good customer service helping the stressed customer, and was in the Respondent’s interest both by keeping the forecourt safe and so the pump would not be blocked for an hour, which would be inconvenient to customers. As such, it was part of Mrs Gage’s job of providing excellent customer service. 108 212 Replace para 212 with: Additionally, JH receives requests for assistance in relation to other vehicle issues such as flat tyres and broken-down vehicles. In these circumstances JH has helped customers by verbally describing the steps required to change a vehicle’s wheel (this occurred once in the Relevant Period) and has assisted in pushing a customer’s vehicle to a safe location in the Forecourt after a vehicle issue to await vehicle recovery. In relation to mis-fuels (paragraph 211) and other vehicle issues that have arisen, this happened four to five times per year at the start of the Relevant Period and two to three times at the end. See dispute 107b above. Mrs Gage only gave evidence about advising one customer how to change a wheel. In relation to this issue, Mrs Roberts accepted that what Mrs Gage does was in the Respondent’s interests. The fact that it was not an express requirement of her role and that she would not be disciplined if she did not help in this way does not stop it from being part of her job. The Tribunal found that it was, again, part of providing excellent customer service. 136 258v Replace para 258(v) with: The customer is not causing suspicion – JH is required to make judgements of what a customer's intentions may be based on what can be observed from the Till Area. JH therefore looks at the customer to check whether there is any cause for concern before permitting fuel to be dispensed in accordance with her training. The purpose of this check includes to prevent unsafe customer behaviour and to try to minimise the number of drive offs (see paragraph 341). JH visually checks to see that the customer’s face is not covered by any helmet or mask. When a customer attempts to fill their motorcycle whilst wearing a helmet, JH politely requests using the tannoy that the customer removes their helmet and balaclava before JH can authorise the Pump. JH also visually checks the customer’s general behaviour to see whether there is anything that would cause concern such as the customer seeming nervous, fidgeting, or concealing their face in other ways (e.g. avoiding their face being on camera). JH notices prior to authorisation that a customer may be acting in a suspicious manner on average approximately once a month. In these circumstances, JH allows for a few more seconds before authorising the Pump to allow the CCTV to capture the image of the customer in the event that this is needed. Finally, JH looks at the customer to see if she can recognise them as having previously defaulted or driven off. If they have previously defaulted or driven off, JH may request that the customer comes inside the Shop to speak about the matter further. If JH has any reason to be concerned about a particular customer, whilst looking at the customer JH mentally takes note of their height and any identifiable features. This is in case of a drive off. JH recognises a customer as having previously defaulted or driven off approximately once every four months. The Respondent’s training material states that the attendant often needs to make judgments of the customer’s intentions based on what can be observed from the control point. Mrs Roberts agreed. Mrs Gage’s answer on this point, taken in context, confirms her view that she was exercising judgment. Mrs Roberts agreed that allowing a few more seconds before authorising the pump was an example of being proactive to reduce drive-offs, which was what the training required. The Tribunal accepted that Mrs Gage would make a mental note of a customer’s identifying features in cases where she was concerned. She knew that the police would ask for a description if she reported a drive-off. Mrs Roberts agreed that this would be helpful. The Tribunal found that all of these actions were a way of doing Mrs Gage’s job. 162 316 Replace para 316 with: When the relevant cups of the till drawer become full, JH obtains a cash bag from the till drawer and counts specified amounts of coins into the bag, i.e., £1 worth of £0.01 coins; £1 worth of £0.02; £5 worth of £0.05; £5 worth of £0.10; £10 worth of £0.20; £10 worth of £0.50; £20 worth of £1.00; £20 worth of £2.00. JH does not mix denominations of coins or part-fill a bag. After filling a bag, JH carries it to the safe and places it in the bottom compartment. JH writes down the number of bags of coins taken to the safe throughout the day to make sure that the till count form at the end of the evening accounts for the correct amount transferred from that till. The Tribunal accepted Mrs Gage’s evidence that it would be less efficient to use the scales than simply to count the relevant number of coins. Otherwise, she would have to leave the till area to collect the scales, estimate the relevant number of coins for the scales, adjust to the precise number by adding or removing coins, bag them up and return the scales. It was easier simply to count the coins out. This was a way of performing the task. 163 318 Replace para 318 with: When giving change to customers JH uses the available coins and notes in a way to make sure that she keeps an appropriate level of each denomination in the till. While the Tribunal accepted that Mrs Gage operates the till in this way, the Tribunal found that it was a more basic process than reflected in the Claimant’s proposed wording. 167 326 Replace para 326 with: JH unblocks an OPT approximately twice a week. To do this, JH opens the OPT and checks the till roll to identify what has caused the jam. This will be either part of a previous transaction’s receipt or on rare occasions a customer’s card. JH tries pulling out the blockage. However, if the blockage is not able to be removed, JH chooses to obtain a small screwdriver (Figure X) from the Till Area to tease out the blockage. Use of the screwdriver in this way is not part of her job. While the Tribunal accepted Mrs Gage’s evidence that she does act in this way, there was no evidence that this was authorised or tacitly approved by managers. She had obtained the screwdriver and put it by the till for the purpose. Mr Hauton raised significant concerns about Mrs Gage proceeding in this way. The Tribunal found that this was something Mrs Gage chooses to do, but is not part of her job, in those circumstances. 186a 380 Replace para 380 with: 186b The Petrol Station holds a lower amount of LPG than the other fuel types. Therefore, the chance that the Petrol Station will run out of this fuel type is higher. Every day a wetstock report is obtained by a PFS colleague during a late shift as per the logbook. Occasionally, the Petrol Station will run out of LPG. Unlike petrol and diesel pumps, during the Relevant Period it was understood that LPG pumps could run dry without damaging the pumps. Accordingly, there was no need for the JH to monitor the levels of LPG stock. When the LPG runs out, JH calls the Main Store to notify a manager. JH then closes down the LPG Pumps on the till by selecting ‘close pump’ and selecting the LPG Pumps. Finally, JH locks the Pumps using the relevant locking bars and padlocks and places an out of order sign on them. It takes JH approximately five minutes to close the Pumps. When the LPG Pumps are out of order, customers may ask JH when the Petrol Station will next be receiving a delivery. JH provides a broad estimate as to when the Petrol Station may next be receiving a delivery. For some customers who are taxi drivers whose cars more frequently use LPG than other customers, JH may offer to call their taxi rank when the next delivery is received to inform them that the Petrol Station's LPG Pumps can be used again. While the Tribunal accepted Mrs Gage’s evidence that an engineer who happened to be on site had told her that low levels of LPG might lead to a customer paying for fuel that had not in fact been dispensed, we found Mr Hauton’s evidence that this was not in fact correct persuasive. He was plainly expert on these matters, and had checked the specific evidence given by Mrs Gage before giving his own. There was no need for wetstock reports to be checked in the way Mrs Gage described and it was not part of her job to do so. Nor, for the same reason, was it necessary to shut the LPG pumps down before they were empty. Mrs Gage’s evidence was clearly to the effect that she provides a “broad estimate” of when LPG might be back in stock, even if she does not have specific knowledge of when the delivery is due. The Tribunal accepted her evidence that she may call local taxi ranks to let them know when the delivery comes in; this is part of good customer service. 197a 407 Replace para 407 with: 197c On a 6 monthly basis the Petrol Station encounters a site crash where the Pumps, Forecourt equipment and/or tills stop functioning. This can be caused by several issues, including most frequently a power cut. When a site crash occurs, JH firstly notifies any customers in the Shop Area and in the Forecourt that the Petrol Station systems have crashed, and that they will not be able to complete their transactions until the Petrol Station has been rebooted. JH apologies for any inconvenience caused to the customers. Then JH notifies the Main Store by calling via the internal phone. If JH is lone working (and cannot therefore leave the Shop), JH requests support from a manager in the Main Store who will ask a colleague to help marshal any new customers away from the Petrol Station and to cordon it off. If JH is working with a Petrol Station colleague, JH or JH’s colleague will cordon off the Petrol Station whilst the other is notifying the manager. JH knows from her experience that when a site crash occurs, before assisting HTEC will ask whether power is being supplied to the Pumps. JH therefore checks the till screen to see if there is power going to them. JH then checks inside the pump distribution board in the Till Area where a button showing a red light would signify that no power is reaching the Pumps. If there is a red light, JH pushes the button to see if the light will go green to signify that the power has been reinstated. If the Pumps do have power, JH flips any fuses in the pump distribution board for individual Pump islands which may have gone during the power cut. JH then phones HTEC for assistance. JH answers any questions and takes any remedial steps they instruct her to take, such as removing the leads from the site controller (which is a piece of equipment which links together all the individual items of electrical equipment), and blowing any dust from the ports before replacing the leads after 10 seconds. However, if the issue with the Pumps and/or tills cannot be remedied by HTEC, HTEC will inform JH that an electrician will be called to attend the Petrol Station. The Tribunal accepted Mrs Gage’s very clear evidence about the steps she would take before phoning HTEC. She explained that this is because she knows from her experience that HTEC have a sheet that they will go through before providing further assistance, so it saves time to go through those steps first. The Tribunal acknowledged Mr Hauton’s evidence that if HTEC were not called, it might mask an underlying issue. However, it is clear from the agreed wording here, that Mrs Gage or a colleague also inform a manager of the issue each time there is a site crash. Her evidence was that her colleagues follow the same steps she does before calling HTEC. In those circumstances it seemed to the Tribunal inevitable that her managers must know that she is taking those steps before calling HTEC as they must discuss with her how the site crash has been resolved. The Tribunal found that her managers tacitly approved this way of doing things. Mrs Roberts’s evidence appeared to the Tribunal to reflect written process rather than what is actually done and was not persuasive. 198 410 Replace para 410 with: Approximately two to three times per week, JH is required to reboot an OPT/Pump if an OPT is not processing transactions (paragraph 323) or if there is another fault regarding a Pump dispensing fuel, such as a permanent ‘Pump in use’ error message. JH knows from her experience that HTEC will ask for certain steps to be taken before they will assist with a Pump issue. JH therefore carries out these steps first to try to resolve the issue, this includes the following; firstly, JH attempts to reboot the single Pump's OPT. JH opens the OPT using the relevant key obtained from the key press. JH then pushes the yellow button inside the OPT to reboot that OPT. If this does not assist, JH reboots the relevant island of two Pumps. To do this JH opens the electrical cupboard and turns off the fuse for that island, before turning it back on. It can take 20 minutes for the island of Pumps to reboot, and JH therefore only does this when customer volume is low. Whilst waiting for the Pumps to reboot, JH places a cone in front of the Pumps on that island. Finally, if this does not assist JH phones HTEC to ask for assistance. The Tribunal accepted Mrs Gage’s evidence that this happened on average 2 to 3 times per week. The only written evidence – Ms Stockings’s email in 2019 – was inconsistent with the suggestion that this only happened occasionally (even if the situation described in the email was unusually bad). Ms Stockings’s email also indicated that the process of reporting to HTEC so that they would “have visibility of” an underlying issue and would therefore address it, did not operate as successfully as the Respondent may have believed. For similar reasons as in relation to dispute 197, the Tribunal found that Mrs Gage takes the steps before calling HTEC, and that this is a way of doing her job. Mrs Gage made clear that she only reboots an island of two pumps and Mr Hauton agreed that that was acceptable. 200b 415 Replace para 415 with: At the end of each day, in accordance with the closing tasks in the logbook, JH or JH's colleague prints a wetstock report. This report states what the level of fuel stock in the system is in litres and what ullage (unfilled space) is remaining in the tanks. JH obtains this report by selecting the 'fuel functions' button on the till before selecting 'wetstock report'. When the Petrol Station receives a delivery, JH may print a wetstock report both before and after the delivery has been made if this is requested by the tanker driver. The levels of petrol and/or diesel in the Petrol Station were running low during approximately six or seven of JH's shifts throughout the Relevant Period. On most of those occasions, this was brought to the attention of the Petrol Station by Head Office. When JH is aware the fuel stock is running low, JH prints a wetstock report at intervals throughout her shift to monitor the levels of the relevant fuel type, and to make sure they do not reach a level at which the Pumps must be closed (paragraph 419). The intervals in which JH prints a wetstock report depends on the level of the relevant fuel type being obtained by customers and/or the level of fuel remaining in the Petrol Station's tanks. Where the Petrol Station was low on petrol and/or diesel but there was not a known national shortage, JH phoned a manager to inform them of the low level of stock. On two occasions, both during national fuel shortages, the manager asked JH to phone the relevant delivery phone line and she did so. As noted above (paragraph 380), the Petrol Station had a low level of LPG more frequently. JH therefore monitored the levels of LPG during one of her shifts on a more frequent basis. The Tribunal did not consider that the question whether Mrs Gage puts the wetstock report in the driver delivery box or on a notice board can conceivably be relevant to the value of the work she performs. There seemed to the Tribunal to be little dispute on the evidence about the remainder of this task. However, bearing in mind the frequency with which this happened, the Tribunal considered it appropriate to include a more concise explanation of what took place. 230 533 Replace para 533 with: Due to the amount of lottery products merchandised in the Kiosk, Morrisons supply cards about obtaining help with gambling addiction, which JH can give to a customer. She was told to provide a card if somebody came back repeatedly. She has done so twice in the Relevant Period. JH tactfully addressed the matter to avoid causing offence. The Tribunal accepted Mrs Gage’s evidence that there was no till prompt about providing the card. We were not shown any evidence of such a prompt. Mrs Gage said that she had not had any training, beyond being told to provide a card if someone came back repeatedly during the day. One the two occasions she provided a card, that was the trigger. 253 399 Replace para 399 with: JH is encouraged to adopt a mindset of “Would I use it?” and “Would I be happy with the performance?” The JH assists to maintain the cleanliness and performance of the Pumps and valeting equipment in the Forecourt (for example by cleaning the pumps in the first part of the Relevant Period and emptying the bins) and helps to maintain the appearance of the Forecourt by picking any litter in line with the CAYG policy. In addition, although there is a third party contractor responsible for landscaping around the Petrol Station and Forecourt, including weed control, in order to maintain the appearance of the Forecourt during summer when weeds grow more abundantly around the Forecourt,JH picks the weeds before spraying a weed killer solution on them. JH picks weeds approximately once every two weeks around the carwash and jetwashes, and approximately once every three months for the general Forecourt during summer (this includes the kerbs and pathways in/around the Forecourt and wider Petrol Station). The Tribunal accepted Mrs Gage’s evidence that she does a range of tasks to keep the Forecourt area clean and tidy, not simply dealing with the weeds. 62 111 – [The paragraph numbers in the schedule of dispute do not correspond precisely with paragraph numbers in 113, 272 the third draft JD. It appears to the Tribunal that paragraphs 114, 274 and 387 of the third draft JD are – relevant, and should be replaced with the following wording. If that numbering has subsequently changed, the 274, parties should replace the relevant paragraphs by agreement if possible.] 386 – 388, The Job Holder is also expected to report any security concerns to the Gadbrook Management in the event 161(e), that a security concern arises, for example, if the Job Holder was to identify a single packet of product 327(g) missing from a case, which could be indicative of theft someone stealing stock, or someone behaving and suspiciously. The Job Holder has reported such issues approximately five times during the Relevant Period. 440(f) Although Mr Rowe did not give evidence personally, the Tribunal accepted Mr Benningwood’s evidence that he recently checked with Mr Rowe and Mr Rowe told him that he had reported this about 5 times. We were satisfied on the balance of probabilities that this had happened. There was no real evidence to the contrary – the Tribunal did not think that the notes of Mr Rowe’s interview were particularly helpful because he was not asked the question directly. 5, 64, Appendix Replace para 7 with: 65, 84, Para 7 The position adopted by Gadbrook management in respect of performance management has varied during 94, the Relevant Period. Since 2018 there has been a significant increase in performance management action and disciplinary sanctions being issued, and a very significant increase in performance management action 110, and disciplinary sanctions in respect of downtime, picking rates and picking errors. 133, 134, The Tribunal found that the documentary evidence did support a finding, on the balance of probabilities, that there has been a significant increase in performance management action and disciplinary sanctions overall and a very significant increase in performance management action and disciplinary sanctions in respect of downtime, picking rates and picking errors. Although the data analysed only related to colleagues who had not left before January 2022, there was nothing to suggest that were information available for colleagues who had left before January 2022, it would have revealed a different pattern. Mr Benningwood did not suggest that it would, and acknowledged that there had been a greater focus on performance management overall and a move towards managing individual rather than group performance since 2018. However, the Tribunal did not find that the evidence was sufficiently precise to justify the inclusion of percentage increases. Appendix Delete para 8 altogether. Para 8 The Tribunal was not persuaded that the reason for the increase in performance management was a deliberate attempt to manipulate the situation because of these proceedings. That would have required the Respondent to have very rapidly anticipated a potentially relevant aspect of the comparator job roles, and devised and implemented a strategy to manipulate that aspect. It was implausible that they had done so. On the other hand, the Tribunal was not satisfied that the explanations given by Mr Benningwood fully accounted for the changes in performance management, given the timings of the matters referred to compared with the changes in performance management, and given the lack of clarity about technological changes. However, provided that there was no deliberate distortion of the situation, the Tribunal did not consider that the reason for the increase in performance management was relevant to the value of the work performed by the comparator. The issue is the extent to which the comparator’s performance is managed, not the reason for that. Appendix Replace para 10 with: Para 10 During the Relevant Period, in relation to the cohort of employees who remained employed in November 2023 and employees who had left employment in 2022, one Logistics Key Operative – Warehouse & FLT colleague was dismissed for poor performance. In this case, the employee was dismissed at the end of their 13-week probationary period for excessive downtime. A number of employees in the same cohort have been subject to repeated sanctions (records of improvement, verbal, first written and final written warnings) for downtime and/or picking performance, with five employees each being subject to over 10 such sanctions between 2018 and 2022 but not subsequently dismissed. The Tribunal was satisfied on the basis of the documentary evidence that there were five employees in this situation between 2018 and 2022. We considered that it would be misleading to describe this as being something that happened over the ten-year Relevant Period. EMPLOYMENT TRIBUNALS Claimants Respondents Ms A Abdar and others 1. Wm Morrison Supermarkets Ltd 2. Safeway Stores Ltd 3. Alliance Property Holdings Ltd PRELIMINARY HEARING BY CVP Heard at: Leeds by CVP On: 21, 22, 24 October 2025 Before: Employment Judge Davies Appearances For the Claimants: Ms Monaghan KC for the Roscoe Reid group of Claimants Mr Short KC and Ms Ling for the Leigh Day group of Claimants For the Respondents: Mr Reade KC and Mr Sugarman

[1]The comparison of contract terms should include the identified terms about redundancy.1.1 The written and oral evidence demonstrates that terms in relation to redundancy have been periodically agreed between the Respondents and the relevant trade unions in relation to all hourly paid workers in scope of those agreements. Once those terms have been accepted following a ballot, Ms Magson agreed in cross-examination that they become part of the relevant workers’ Terms and Conditions (unless and until subsequently varied). The Lead Claimants and the J41 and Gadbrook Comparators have or had contractual terms about redundancy arrived at in that way throughout the Relevant Period (and up to at least January 2025).

1.2 I do not accept the Respondents’ contention that because none of the Lead Claimants has been made redundant during the Relevant Period, the terms have not been “activated” and they ought not to be included in the comparison of contractual terms exercise. The Equality Act 2010 is concerned with terms of work; as Mr Short KC submits, it follows a contractual model not a tortious one. Under s 66, the effect of a sex equality clause is to modify a less favourable term, or to include an absent, beneficial term in an employee’s contract. Under s 132, where a claimant establishes a breach of an equality clause, the Tribunal may make a declaration and may order an award of damages. If no financial loss has been caused, the Tribunal may still make a declaration. As Ms Monaghan KC points out, that is reflected in the Equal Pay Code of Practice. The statutory scheme does not require that the employee has “relied” on the specific term or been denied the benefit of it in that sense, before they can bring a claim for a breach of an equality clause. If a comparator’s terms included a beneficial term in relation to long-term sickness absence, a claimant might well seek a declaration to the effect that their own terms were modified by a sex equality clause to include such a term, to guard against the eventuality that they might need to rely on it in future, even if they had not needed to do so to date. The redundancy terms, which are now accepted to be contractual, are in my view no different. The mechanism by which they are agreed and come into effect, and the fact that a different agreement might be reached in future, does not change that. The negotiated offers are expressed to be effective from a given date, but no end date is given. They remain in force unless and until subsequently varied, as with any other contractual term.

[2]The comparison of contract terms table should continue to include all the identified terms about night work, but none of the Lead Claimants was a regular night shift colleague classified as a permanent night worker, so those elements will not be relevant at the 2026 material factor defences hearing.2.1 Terms in relation to pay for night work for retail workers address both those referred to as regular night shift colleagues who are classified as permanent night workers, and others. None of the Lead Claimants was a regular night shift colleague classified as a permanent night worker. However, the terms make more logical sense when both parts are included, because to some extent they cross-refer to each other.

2.2 Work done by the parties in identifying and comparing the terms for regular night shift colleagues classified as permanent night workers is proportionate for that reason and given that other Claimants are permanent night workers. While the specific provisions applying only to permanent night workers will not be the subject of the material factor defences hearing in 2026, and may, depending on decisions about equal value and material factor defences, ultimately not be taken further, the work involved in including this element in the comparison of contract terms is proportionate in all the circumstances.

2.3 I note for the record that the parties now agree that for somebody who started a shift after 11pm and finished it before 6am, apart from a bank holiday or paid night shift, they would be paid the relevant night rate for hours worked between midnight and 6am.

[3]The days, lates, nights and nights plus rates for J41 and Gadbrook comparators should be included in the comparison of contract terms. I did not hear detailed argument about where they should be included and I make no determination about that.3.1 Ms Barry accepted in her evidence that the terms of the J41 and Gadbrook comparators are to the effect that they can be required to work a late shift or night shift if business needs require that. If they worked a late shift or a night shift, they would be paid at the relevant late or night rate of pay for the shift. Ms Barry did not know whether any of the comparators had been required to work late or night shifts. It is rare but not unheard of. The hours that qualify as a day, late, night or night plus shift are defined.

3.2 The Claimants accept that none of the Lead Claimants is or was a specific “night working” retail colleague. However, Ms Magson agreed that Ms Hoyle worked at least one night shift. Further, Ms Barry agreed that both Mrs Gidman and Mrs Gage have or had shift patterns for which some shift start times would bring those shifts within the definition of a late shift at J41 or Gadbrook.

3.3 The differential rates for lates, nights and nights plus are therefore relevant at least to that extent. It is proportionate to include, for completeness, the entirety of the relevant terms rather than simply the “lates” rates.

[4]The parties agree that the material factor defences hearing should be confined to the Relevant Period but that the comparison of contract terms should nonetheless cover the period to January 2025.

[5]The skill supplement for Checkout Team Leader and the Location supplement for the Southend on Sea store formed part of the basic hourly pay for the relevant Lead Claimants. Legal principles5.1 Under s 66 Equality Act 2010, a sex equality clause has effect:5.1.1 If a term of A’s is less favourable to A than a corresponding term of B’s, by modifying A’s term so as not to be less favourable; and

5.1.2 If A does not have a term which corresponds to a term of B’s that benefits B, by including such a term in A’s terms.

5.2 The starting point in construing s 66 remains the decision of the House of Lords in Hayward v Cammell Laird Shipbuilders Ltd (No 2)

[1988] AC 894

(concerned with s 1(2) Equal Pay Act 1970, the predecessor to s 66 Equality Act 2010). The House of Lords held that it is not correct to take all provisions relating to pay as a single term; individual terms must be separately compared. There is no element of overall comparison of A’s remuneration package with B’s. This may result, ultimately, in the enhancement of both A’s and B’s contracts, by what is referred to as “leapfrogging.” That is accepted as an inevitable consequence of this approach (but, of course, it is subject to a successful material factor defence in relation to individual terms). It is important that the provision in question is capable of being compared from the point of view of the benefit it confers with a corresponding provision in another contract to see whether or not it is more beneficial than that provision. So, in Hayward itself, it was necessary to compare the hourly rates of basic pay, not the basic salaries, so that the hours worked in order to earn the money were taken into account. The word “term” does not mean the totality of the relevant contractual provisions relating to a particular subject matter, e.g. pay. The Tribunal must look at the two contracts and ask the commonsense question – is there in each contract a term of a similar kind, i.e. a term making a comparable provision for the same subject matter? If there is, you compare the two. Put another way, is there a distinct provision or part of the contract which has sufficient content to make it possible to compare it from the point of view of the benefits it confers with similar provision or part in another contract?

5.3 In Degnan v Redcar and Cleveland Borough Council

[2005] IRLR 615

, the Court of Appeal applied those principles in a case where male comparators received the same basic hourly rate as female claimants, but received fixed bonuses and attendance allowances that made their overall pay very substantially higher. The Tribunal held that the terms about bonuses and attendance allowances were separate terms, with the effect that the women could compare their terms with the most generous bonus and the most generous attendance allowance. In a judgment given by Maurice Kay LJ, the Court of Appeal upheld the finding of the EAT that the attendance allowances together with the basic hourly rate and fixed bonuses were a single term. On the facts, it was right to aggregate all monetary payments received by the male comparators for normal working hours in determining their hourly rate of pay. The Court of Appeal approved the finding of the EAT that the attendance allowance was part of the monetary payment for performance of the contract, by attending at work and working during normal working hours. The fact that it could on occasion be paid to a man who left soon after he attended, and was not paid for a day of unauthorised absence, did not alter that.

5.4 That decision was considered again by the Court of Appeal in Brownbill v St Helens and Knowsley Teaching Hospitals NHS Trust

[2012] ICR 68

. That case concerned unsocial hours payments. In a judgment again given by Maurice Kay LJ, the Court of Appeal made clear that the decision in Degnan did not, and was not intended to, give rise to an exception to the principles in Hayward. Rather, it concerned the application of those principles to the “reality of the contractual provisions in the circumstances of the particular case.” Those circumstances included the fact that, when the men’s terms had been negotiated, there had been a history of bargaining devices and artefacts that tended to conceal the reality of the pay elements. The Court of Appeal approved and upheld the judgment of the EAT, that Degnan did not lay down, as a general principle, a broader, overall approach to comparison of remuneration terms to be applied in all cases, and that the Tribunal in Brownbill had erred in finding that the claimants and comparators each had discrete contractual terms relating to unsocial hours worked during normal working hours, but failing to compare those terms in accordance with Hayward.

5.5 The principles therefore remain as articulated in Hayward.

5.6 The decision of the EAT in McNeil v HMRC

[2018] IRLR 398

, is concerned with a different issue and does not materially assist in the application of the Hayward principles in this case. Facts

5.7 Morrisons’ retail rates of pay are set out in Retail rate cards. Those are internal cards for payroll purposes. From 2012 to 2014, there were separate wage cards for Morrisons’ four separate retail wage areas. They specified rates of pay for each role, within each wage area. That included rates for a range of roles, including Sales Assistants and Checkout Operators, Fishmongers and Pharmacy Dispensing Assistants. The rates in wage area 4 for established staff were lower than the corresponding rates in area 3 (though not by a uniform amount or proportion).

5.8 Morrisons and USDAW reached a retail pay deal in 2015-2016 in which the standard hourly rate of pay was significantly increased, and certain elements of pay were consolidated into hourly rates. A briefing pack was issued to explain the changes. It explained that colleagues with certain job titles would receive a skill supplement payment, which would be paid to those colleagues for all hours worked and during any paid absences. The relevant job titles at that time included Fishmonger and Pharmacy Dispensing Assistants. The Checkout Team Leader role did not exist at that time. The briefing pack said that all colleagues would receive a personalized illustration of the changes, and included explanations about what the different parts of the illustration meant. It said that in the section about their Current Base Pay, the “Base Hourly Rate of pay” was their contractual hourly rate, and included any location, skill or night supplements. In the section about their New Base Pay, the Base Pay was the standard proposed rate of £8.20 for all colleagues; the Skill Supplement was the supplementary payment for Skilled roles (and the amounts for roles including Fishmonger and Pharmacy Dispensing Assistant were given); the Location Supplement was a supplement paid to wage area 1 and 2 locations (and the amounts were given) and the “Total New Hourly Rate” was the sum of those calculations and would be referred to as the colleague’s rolled up rate of pay.

5.9 The retail hourly pay rate cards changed in format after these changes. For 2016/2017, there were still separate cards for different wage areas. The rate card for wage area 4 specified the Base Rate of £8.20 for an established customer assistant. There was then a separate table, that set out Supplement payments by role (including Fishmonger and Pharmacy Dispensing Assistant) and then identified the “Role Rate” for those roles. That was the sum of the Base Rate and the Supplement.

5.10 The rate card for 2017/2018 specifies “Base Rate”, “Location Supplements” and “Skill Supplements.” An hourly rate for Customer Assistants is specified (£8.50). Location Supplements for Wage areas 1 and 2 are specified, and Skill Supplements are specified. The Skill Supplements cover a range of roles, e.g. Fishmonger, Pharmacy Dispensing Assistant and the new Checkout Team Leader. The supplement for Checkout Team Leader is specified as £0.20. There is then a separate box setting out the “Role Rate.” Each role is listed for each wage area, and an hourly rate set out under the heading “Role Rate.” The Role Rate for Checkout Team Leader in wage area 4 is specified as £8.70.

5.11 For subsequent years, up to 2020/2021, all of that information is set out in a single table. The base rate for each wage area is given, the Supplement (per hour) for the specified roles including Checkout Team Leader, Pharmacy Dispensing Assistant and Fishmonger is listed, and then the “Role Rate” is given in the last column”.

5.12 For 2021/2022, there is no reference to (Skill) Supplements. The job card gives rates for the different roles, for each wage area, and, for the first time, refers to a Night Supplement.

5.13 The Checkout Team Leader role did not exist before 2016. In July 2016 when she became Checkout Team Leader, Ms Hoyle signed to confirm her acceptance of amended terms and conditions of employment. Section 4 of those terms, “Rate of pay” said that her rate of pay was “£8.20000 per hour plus any supplements to which you are eligible as set out in the Colleague Handbook … .” All of her previous terms and conditions, from when she was a Checkout Operator, specified her rate of pay and made no reference to any supplements. The terms made clear that Ms Hoyle’s terms and conditions were contained in that document and in the Staff Handbook.

5.14 The 2012 Staff Handbook contained a section setting out the premiums for overtime, Sundays, temporary nights and unsocial hours for hourly paid colleagues. It did not contain any reference to Skills Supplements.

5.15 The 2019 Staff Handbook said that all hourly paid retail colleagues received Morrisons’ base rate of pay (then £8.70 per hour). The base rate was payable for all hours worked. In addition to the base rate, colleagues might also be eligible for one or more of the supplements listed for any hours where the relevant supplement applied. The listed supplements were: Skilled Workers Supplement, Night Workers Supplement and Location Payments Supplement. In relation to Skilled Workers Supplement, the Handbook said, “Skills pay at Morrisons. Which is why … Fishmongers, Checkout Team Leaders … all receive an additional payment on top of their base rate. Your People Manager will be able to confirm the current rate of the relevant supplement.”

5.16 In the Payments section, Ms Hoyle’s payslips during 2016 and 2017 itemised payments for Basic Hours (number of hours and total paid) and Checkout Team Leader (the same number of hours and additional total paid). In the bottom section, the payslips specified her hourly rate. That was the rate inclusive of Checkout Team Leader supplement. In 2021 her payslips itemised Basic Hours (hours worked and total paid) and Skill Supplement (total paid). They also specified her hourly rate. That was again the rate inclusive of the Checkout Team Leader supplement.

5.17 It was put to Ms Magson in cross-examination that the skills supplement was to reflect the fact that a retail worker doing certain jobs must bring some special skill for which the supplement was paid. She said that it was, “based on the tasks of that role.” She agreed that it was because they were undertaking a particular skill not ordinarily carried out by those who work on the checkout.

5.18 As already noted, Morrisons had four retail wage areas at the start of the Relevant Period. Part of the 2015/2016 pay deal involved the merger of wage areas 3 and 4, so that stores in wage area 3 were no longer eligible for a Location Supplement. From that point, there were three wage areas. Ms Magson agreed that Morrisons paid more in wage areas 1 to 3 (then 1 and 2) to take account of prevailing market conditions. The cost of living in some areas might be one of the reasons. She agreed that the higher pay had nothing to do with how the worker did the job or whether they turned up for work, it was all to do with where they did it. The location supplements were one of the matters agreed in the pay negotiations with USDAW, and forming part of the workers’ terms and conditions once agreed at ballot.

5.19 Mrs Haynes worked in an area 3 store. Prior to the 2015/2016 pay deal, she was eligible for a location supplement.

5.20 Mrs Haynes signed to confirm her acceptance of amended terms and conditions in November 2010. Section 4, “Rate of pay” said that her rate of pay was £6.41040 per hour. Section 7, “Place of work” specified Store 281 Southend on Sea. The terms made clear that Mrs Haynes’s terms and conditions were contained in that document and in the Staff Handbook. I was not shown any subsequent terms and conditions for Mrs Haynes.

5.21 The 2012 Staff Handbook dealt with location supplements under the heading Location premiums. It said that certain locations paid a different hourly rate of pay and/or premiums. This was to take into account geographical location and prevailing labour market conditions. Colleagues moving location would have their terms and conditions adjusted to the new location. [For completeness, although not relevant to Mrs Haynes, under the heading Location Payments Supplement, the 2019 Staff Handbook said that some locations attracted an hourly location payment, to help attract new colleagues and retain existing ones. Store teams would confirm if this applied. The locations were regularly reviewed. Colleagues who transferred location would have their pay adjusted.]

5.22 The Staff Handbook did not specify the amount of the location supplement payable to Mrs Haynes. As noted above, prior to 2017/2017, the location supplement was not spelled out in the rate cards either. It could be calculated by looking at the difference between equivalent rates in the different wage areas.

5.23 At all times when Mrs Haynes’s store was eligible for a higher rate of pay, her payslips simply specified the hourly rate applicable for wage area 3. They did not separate out the standard (area 4) hourly rate and the area 3 supplement.

5.24 After 2016, although not applicable to Mrs Haynes, I note that payslips for those in wage areas 1 and 2 did separate out Basic hours (hours worked and total paid) and Location supplement (same number of hours worked and total paid) in the payments section. Again, they specified an hourly rate at the bottom, which incorporated both those elements.

5.25 Throughout the Relevant Period, holiday pay was calculated based on whichever was the greater: average pay over the preceding 52 weeks or contractual pay. Examples of payslips for Ms Hoyle and Mrs Haynes showed that, if the contractual rate was used, their holiday pay was calculated based on the hourly rate including Skill or Location supplement. The same was true of sick pay.

5.26 The focus of the evidence at the preliminary hearing was on the Claimants’ terms. The parties did not draw my attention to any separate skill supplement payable to the Comparators. Detail about the Comparators’ terms is included in the COTT tables (which I record are not agreed documents). Basic hourly rates of pay are set out. Those basic pay rates for the Comparators are different for each location. This is based on what has been agreed locally; there is not a separate location supplement, rather a basic hourly rate of pay for each location. There is no reference to any skill supplement. Analysis

5.27 The question for me is whether, for the purposes of comparing their rate of pay with that of the comparators under s 66, the Lead Claimants’ Skill Supplement (Ms Hoyle) and Location Supplement (Mrs Haynes) form part of a single term – governing their basic hourly rate of pay – or whether there are separate terms governing basic hourly rate of pay, Skill Supplement and Location Supplement. I ask myself the commonsense question – looking at the Claimants’ and the Comparators’ contracts – is there in each contract a term of a similar kind, making comparable provision for the same subject matter.

5.28 I have no hesitation in finding that there is, in each contract, a single term governing basic hourly rate of pay, which includes “Skill Supplement” (Ms Hoyle) and “Location Supplement” (Mrs Haynes). In the Claimants’ case, that is found in section 4 of their terms and conditions, which provides for an hourly rate of pay. The Skill Supplement and Location Supplement form part of the basic hourly rate of pay, and that rate is specified at the bottom of the worker’s payslip. As Mr Reade KC submits, the union negotiations, rate cards, payslip payment information and other information show how that is calculated “under the bonnet”, but they do not reflect discrete terms.

5.29 The rate cards are not contractual documents, they are internal documents for payroll purposes. They provide a degree of transparency about how pay is calculated. They are concerned throughout with “role rates”, that is rates paid for roles (in different wage areas).

5.30 The “Skills Supplement” for Checkout Team Leader is not a payment for particular Customer Assistants with specific skills or qualifications, or who are going above and beyond in performing the role. As the detailed job descriptions determined at Stage 2 hearings demonstrate, Checkout Team Leader is a different role from Customer Assistant. The Skills Supplement is nothing more than the difference between the rate of pay for the role of Customer Assistant and the rate of pay for the role of Checkout Team Leader. Put simply, every Checkout Team Leader in every Morrisons store in the same wage area is paid the same hourly rate for every standard hour worked. There is an hourly rate of pay for Checkout Team Leaders in each wage area and that rate of pay is calculated by using the Customer Assistant hourly rate as a starting point and adding an appropriate sum to it to arrive at the Checkout Team Leader’s rate of pay.

5.31 Likewise, every Customer Assistant in every Morrisons store in the same wage area is paid the same hourly rate for every standard hour worked. There is an hourly rate of pay for Customer Assistants in each wage area, and there is an hourly rate of pay for Checkout Team Leaders in each wage area.

5.32 In the language of Hayward, there is a distinct provision or part of the contract – part 4, specifying basic hourly rate of pay for the specific role at the specific location - which has sufficient content to make it possible to compare it from the point of view of the benefits it confers with similar provision or part in the Comparators’ contracts – basic hourly rate of pay for the specific role at the specific location.