Ms K Element and Others v Tesco Stores Ltd: 3304495/2018 and Others

EMPLOYMENT TRIBUNALS

Case No 3304495/2018

Between

Ms K Element and OthersClaimant

Tesco Stores LtdRespondent

Before

Employment Judge Hyams

Date 4 July 2024

REASONS

[1]In paragraphs 2-9 below, we summarise the claims which led to the hearing which we conducted on the dates stated above and the background to that hearing. In paragraphs 10-26, we refer to the relevant parts of the substantive law relating to the claims made in these proceedings. In paragraphs 27-36, we describe in some detail the manner in which we conducted the hearing. In paragraphs 37 and 38, we describe some site visits that we made in order to assist in our understanding of the evidence and factual issues before us. In paragraphs 39-48, we record our reasons for rejecting an application made by the respondent for certain documents to be put before two witnesses whose first language was not English and who were called to give evidence for the respondent while they were giving that evidence. In paragraph 49 we list the witnesses who gave evidence to us, stating when they did so and (in the case of Case Numbers: 3304495/2018 & others 4 the respondent’s witnesses) for what purpose. In paragraphs 50-63, we refer to some salient aspects of the evidence before us, and state our findings on that evidence. In paragraph 64, we state our conclusion on the submission which had been made to us that we would need to state what we understood had been agreed and as well as make findings of fact on those things about which the parties were not agreed. In paragraphs 65-88 we state our conclusions on the points of principle which led to our above judgment. In paragraphs 89-92, we state our reasons for the orders which we have (as recorded in our above judgment) concluded should be made and our intention to discuss and if possible agree the terms of those orders at the hearing which will be resuming before us on 19 July 2023. The claims and the background to, and an overview of, the hearing which led to our above judgment

[2]The claimants work in the respondent’s retail stores. They claim equal pay on the basis that their work is of equal value to that of comparators who work in the respondent’s distribution centres. The hearing which we conducted and which led to our above judgment was held in person and by CVP, so that there was on all of the days when the parties were present a hearing in person, with some persons present by CVP only. That hearing was a stage 2 hearing within the meaning of rule 6 of the Employment Tribunals (Equal Value) Rules of Procedure 2013, which are in Schedule 3 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, SI 2013/1237, and to which we refer below as “the EV Rules”. The parties had agreed that there would be three such stage 2 hearings. This was the first one. It concerned six claimants whose cases were selected by their representatives as sample cases (not lead cases within the meaning of rule 36 of the Employment Tribunals Rules of Procedure 2013, since at the parties’ request no order was made under that rule). They claimed that their work was of equal value to that which was done by one or more of eight comparators, who were also so selected.

[3]The hearing which we conducted was listed by Employment Judge (“EJ”) Manley at a preliminary hearing which she conducted on 10 and 11 November 2021. The period for the comparison of the work of the claimants and the comparators was determined by EJ Manley to be 18 February 2012 to 31 August 2018.

[4]The dates for the stage 2 hearing which we conducted were listed by EJ Manley at the hearing of 10 and 11 November 2021 and were recorded as follows in paragraph 1 of the record of that hearing. “Monday 6 March to Friday 24 March 2023 (15 days with parties); Monday 27 March to Friday 31 March 2023 (5 days tribunal only); Monday 17 April to Friday 28 April 2023 (10 days with parties); Tuesday 2 to Friday 5 May 2023 (4 days tribunal only)”. Case Numbers: 3304495/2018 & others 5

[5]On 6 March 2023, however, we were confronted with a scenario which was summarised in this way in the main opening skeleton argument for the respondent (it was called the respondent’s “opening submissions”, but since both sets of claimants had referred to their opening arguments as “skeleton” arguments or submissions, we refer to all of the documents setting out the parties’ initial contentions on points of principle as skeleton arguments), under the hearing “The evidence”: “By way of background, there are 37 witnesses, currently more than 22,000 pages of documents, thousands of disputes for the Tribunal to determine, three witnesses who need interpreters, and at least two who require measures to ensure effective participation.”

[6]The hearing bundle was being added to at the time that that skeleton argument was finalised (it was dated 20 February 2023), and the bundle was expanded on what appeared to be a daily basis throughout the hearing before us. That bundle included the witness statements for all parties. Not all of the makers of those statements were called to give oral evidence, however. We refer below to the persons from whom we heard oral evidence.

[7]The parties had prepared in addition to witness statements documents which they called equal value job descriptions (“EVJDs”) and records of dispute in relation to the test claimants and their comparators (“RODs”). Those things were done pursuant to rule 4(1)(d) of the EV Rules, which provides: “the parties shall before the end of the period of 56 days [after the stage 1 equal value hearing] present to the Tribunal an agreed written statement specifying—(i) job descriptions for the claimant and any comparator;

(ii) the facts which both parties consider are relevant to the question;

(iii) the facts on which the parties disagree (as to the fact or as to the relevance to the question) and a summary of their reasons for disagreeing”.

[8]The issues for us at the stage 2 hearing which we conducted were as stated in rule 6 of the EV Rules, paragraph (1) of which provides: ‘Any stage 2 equal value hearing shall be conducted by a full tribunal and at the hearing the Tribunal shall—(a) make a determination of facts on which the parties cannot agree which relate to the question and shall require the independent expert to prepare the report on the basis of facts which have (at any stage of the proceedings) either been agreed between the parties or Case Numbers: 3304495/2018 & others 6 determined by the Tribunal (referred to as “the facts relating to the question”); and

(b) fix a date for the final hearing.’

[9]“The question” in that paragraph is defined by rule 1(2) of the EV Rules as “whether the claimant’s work is of equal value to that of the comparator”. Relevant law Section 65(6) of the Equality Act 2010

Relevant law

[10]We have already referred to the relevant parts of the EV Rules. They rely on and are subservient to the relevant parts of the Equality Act 2010 (“EqA 2010”). The operative provision of the EqA 2010 for the purposes of a stage 2 hearing within the meaning of the EV Rules is section 65(6), which is in these terms. “(6) A’s work is of equal value to B’s work if it is—(a) neither like B’s work nor rated as equivalent to B’s work, but

(b) nevertheless equal to B’s work in terms of the demands made on A by reference to factors such as effort, skill and decisionmaking.” Brunnhofer

[11]In Brunnhofer v. Bank Der Österreichischen Postsparkasse AG,

Case C-381/99

[2001] IRLR 571

, the European Court of Justice said this. “41 Determining whether work is the same or of equal value The national court is asking essentially whether the fact that the female employee claiming discrimination on grounds of sex and the male comparator are classified in the same job category under the collective agreement governing their employment is sufficient to reach the conclusion that the two employees concerned are performing the same work or work to which equal value is attributed within the meaning of Article 119 of the Treaty and Article 1 of the Directive. 42 In replying to this point raised by the reference, it must be borne in mind that it is clear from the Court’s case law that the terms ‘the same work’, ‘the same job’ and ‘work of equal value’ in Article 119 of the Treaty and Article 1 of the Directive are entirely qualitative in character in that they are exclusively concerned with the nature of the work actually performed (see Macarthys

[1980] IRLR 210

, cited above, paragraph 11, and case 237/85 Rummler

[1987] IRLR 32

, paragraphs 13 and 23). Case Numbers: 3304495/2018 & others 7 43 The Court has repeatedly held that, in order to determine whether employees perform the same work or work to which equal value can be attributed, it is necessary to ascertain whether, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those persons can be considered to be in a comparable situation (see

case C-400/93

Royal Copenhagen

[1995] IRLR 648

, paragraphs 32 and 33, and Angestelltenbetriebsrat der Wiener Gebietskrankenkasse

[1999] IRLR 804

, cited above, paragraph 17). ... 48 It is therefore necessary to ascertain whether, when a number of factors are taken into account, such as the nature of the activities actually entrusted to each of the employees in question in the case, the training requirements for carrying them out and the working conditions in which the activities are actually carried out, those persons are in fact performing the same work or comparable work.” Shields v E Coomes Holdings Limited

[12]Shields v E Coomes Holdings Limited

[1978] ICR 1159

was a case concerning the right to equal pay for like work. It therefore was not a claim for equal pay for work of equal value. However, the things which the Court of Appeal said in it about the manner in which a job done by a claimant or a comparator must be assessed were, we concluded, applicable to claims for equal pay for work of equal value. We came to that conclusion primarily on the basis that there was no reason to conclude (or at least no reason that we could see to justify us in concluding) that the statements of principle in that case did not apply to cases where what was claimed was that jobs were of equal value rather than that they involved like work. In part that conclusion was based on a purposive approach to the law of equal pay. It was also based on the following factors.12.1 The key issue in Shields was the relevance in a claim for equal pay for work which it was claimed was of equal value (using that term in the broad sense used by Underhill P, as he then was, in paragraph 22 of his judgment when sitting in the Employment Appeal Tribunal (“EAT”) in Prest v Mouchel Business Services Ltd

[2011] ICR 1345

; we have set out paragraph 22 in paragraph 26 below) of a requirement of an employer which was not in actually relied on by the employer in practice.

12.2 That was an issue of principle which both could, and as a matter of principle (by reason of the doctrine of precedent, it being part of the ratio decidendi of Shields which appeared to us to be applicable here) should if it arose here be applied by us.

12.3 For the reasons which we state in paragraphs 67 and 68 below, that issue arose here. Case Numbers: 3304495/2018 & others 8

[13]We saw that it was said by Lord Denning MR in Shields at

[1978] ICR 1159

, 1169E that a comparison of two jobs where it is claimed that the work done in them is the same ‘involves a comparison of the two jobs — the woman’s job and the man’s job — and making an evaluation of each job as a job irrespective of the sex of the worker and of any special personal skill or merit that he or she may have. This evaluation should be made in terms of the “rate for the job,” usually a payment of so much per hour. The rate should represent the value of each job in terms of the demand made on a worker under such headings as effort, skill, responsibility, or decision. If the value of the man’s job is worth more than the value of the woman’s job, it is legitimate that the man should receive a higher “rate for the job” than the woman. For instance, a man who is dealing with production schedules may deal with far more important items than the woman — entailing far more serious consequences from a wrong decision. So his job should be rated higher than hers: see Eaton Ltd. v. Nuttall [1977] I.C.R. 272.’

[14]The claim in Shields was brought by a woman who worked in a bookmaker’s shop. The employer’s justification for the difference in pay between men and women was recorded in the headnote in this way: “The employers considered the shop to be one of nine situated in areas where the prospect of robbery and customers causing trouble was high and they paid the male counterhand more than the employee [i.e. the claimant] because he was employed to act as a deterrent and to render immediate physical assistance if required. He was also expected to be available in case of trouble when the manager opened the shop in the morning and, when necessary, to carry cash between the employers’ betting shops.”

[15]However, as the headnote recorded in the next sentence: “There had been no trouble of the kind feared since the employers took over the shop.”

[16]In his judgment, at 1174G-1175CH, Orr LJ said this: ‘The subsection [i.e. section 1(4) of the Equal Pay Act 1970 as amended by the time of the claim made in that case; section 1(4) concerned “like work”] by its terms requires that, in comparing her work with his, regard should be had to the frequency with which any such differences occur in practice as well as the nature and extent of the differences, and it is abundantly clear, in my judgment, that the comparison which the subsection requires to be made is not between the respective contractual obligations but between the things done and the frequency with which they are done. But it is equally clear from the terms of the decision of the industrial tribunal that the majority of the members misdirected themselves in this respect by paying too great Case Numbers: 3304495/2018 & others 9 attention to the contractual obligations and too little to the acts in fact done and their frequency, and in particular to the fact that Mr. Rolls [the comparator] had never, on the evidence, had to deal with any disturbance or attempted violence. It is true that the arrangement made by the company for dealing with such incidents was, apart from the Equal Pay Act 1970 and Sex Discrimination Act 1975, a sensible one, and the fact that no trouble in fact arose does not establish that they were being overcautious in making that arrangement at the nine shops, but the fact that Mr. Rolls did not ever have to deal with any trouble is by the terms of section 1(4) very material for the present purposes and in my judgment much too little regard was paid to it by the industrial tribunal. The same consideration applies to the duty of Mr. Rolls to be present at the opening of the shop by the manager: plainly a sensible precaution, but here again there has been no untoward incident and this was a matter which the industrial tribunal were required to take into account.’

[17]At 1179-D-G, Bridge LJ said this: ‘The matter falls for decision, as already stated, under section 1 of the Equal Pay Act 1970. In comparing the applicant’s position with that of her fellow counterhand, Mr. Rolls, three possible questions fell to be answered, as they would in any case where a woman claims an equality clause by virtue of employment on like work with a man under section 1(2)(a). First, was their work of the same or a broadly similar nature? Secondly, if so, were any differences between the things she did and the things he did (regard being had to the frequency, nature and extent of such differences) of practical importance in relation to terms and conditions of employment? These first two questions arise under section 1 (4), which defines like work. The legal burden of proving that she is employed on like work with a man rests on the woman claimant. But if the first question is answered in her favour, an evidential burden of showing differences of practical importance rests upon the employers. The third question under section 1(3) [which was re-enacted as part of section 69 of the EqA 2010] arises only if the woman has established that she is employed on like work with a man. Can the employer then prove that any variation between the woman’s contract and the man’s is genuinely due to a material difference (other than the difference of sex) between her case and his? If so, her claim to an equality clause is defeated.’

[18]At 1180C-H, Bridge LJ said this: ‘In considering this second question, it has been emphasised in a number of cases that a difference between duties which the man and woman whose work is being compared are under a contractual obligation to perform is not a relevant difference unless it results in an actual difference in what is done in practice. It is by comparing their observed activities not their notional paper obligations that the relevant differences are to be ascertained. This is an important principle. Where the differences between the employees to Case Numbers: 3304495/2018 & others 10 be compared are not reflected in differences in things done, they fall for consideration only when the third question is asked, viz. is the variation between the woman’s contract and the man’s (a difference in rate of pay or other contractual benefits) genuinely due to a material difference (other than the difference of sex) between her case and his? The kind of differences which can be considered at this stage are manifold and it would be undesirable to attempt to categorise or limit them. A difference in mere seniority, whether measured by age or length of service, would be an obvious example. It may nevertheless be difficult to draw a clear line of demarcation between differences proper for consideration under subsection (4) and those which can only be considered under subsection (3). The Employment Appeal Tribunal has held that differences in the degree of responsibility borne by two employees may properly lead to the conclusion that there are differences between the things they do for the purposes of subsection (4), even though it may be difficult to pin-point and identify the precise differentiation of activity: Waddington v. Leicester Council for Voluntary Service [1977] I.C.R. 266 and Eaton Ltd. v. Nuttall [1977] I.C.R. 272. No doubt this principle is correct, though how far it can be applied to the facts of particular cases may be debatable and must in the end be a matter of degree. The important thing is that the words of subsection (4) “differences … between the things she does and the things they do” should in no way be strained beyond their natural and ordinary meaning. If the differences relied upon to justify the more favourable treatment of a man than a woman cannot fairly be brought within these words, the employer still has the full protection of the fall-back provision in subsection (3) provided always that he can discharge the onus of making good his case of justification in accordance with the terms of that subsection.’ Beal v Avery Homes (Nelson) Limited

[19]In Beal & Others v Avery Homes Nelson) Limited & Others

[2019] EWHC 1415 (QB)

, Lavender J conducted an exercise which, if it had been conducted in an employment tribunal, would have been a stage 2 hearing within the meaning of the EV Rules. In paragraphs 24-33 of his judgment, he referred to the approach required to be taken when deciding whether or nor work was of equal value. In doing so, he referred extensively to the decision of the EAT (presided over by Underhill P) in Potter v North Cumbria Acute Hospitals NHS Trust

[2008] ICR 910

. In paragraphs 32 and 33 of his judgment in Beal, Lavender J helpfully said this: ‘32. Of course, where an employee is contractually required to do something (and that requirement has not fallen into desuetude or otherwise been varied), then that activity will form part of their work (even if, in practice, they neglect or refuse to perform it). But most of the issues in the present case concerned activities where the contractual position was not so clear-cut. On the whole, the dispute was not as to what the employee did, but as to whether it formed part Case Numbers: 3304495/2018 & others 11 of their work. I will deal with the individual issues later, but it may be helpful to set out in general terms what seems to me to be the appropriate approach. In general terms, therefore:(1) Where an employee is instructed by their manager to do something, then, if they do it, that is surely part of their work. Moreover, that is so, even if they might have been entitled to say, “But that is not something I am obliged to do.”

(2) The same is likely to be the case where the manager does not instruct, but requests or encourages, the employee to perform the activity in question. On the other hand, in such a case, it may be relevant to note for the expert’s benefit (if it is the case) that the employee could not be required to perform that activity.

(3) Where an employee does something which they have not been instructed, requested or encouraged to do, it may still constitute work if, for instance: (a) it is simply a way of doing something which forms part of their work; and/or (b) their manager knows that they are doing it, but does not object and thereby tacitly approves of their doing it.

(4) On the other hand, something may not be part of an employee’s work if they have not been instructed, requested or encouraged to do it, their doing it has not been approved by their employer and it does not simply constitute a way of doing something which forms part of their work. 33. I stress that these are merely general considerations, which are not intended to place a gloss on the Act and that each disputed issue has to be considered on the basis of its own particular facts.’

[20]The following passage of Lavender J’s judgment in Beal was also of considerable assistance to us. ‘(2)(v) The Care Quality Commission and the Fundamental Standards 43. The operators and managers of care homes must be registered and regulation 8 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the 2014 Regulations”) imposes an obligation on them to comply with regulations 9 to 20A, which are known as the “Fundamental Standards”. Any breach of that obligation may result in regulatory action being taken by the CQC. Moreover, regulation 22 provides that, in certain specified cases, a breach of that obligation by the registered person will be a criminal offence, subject Case Numbers: 3304495/2018 & others 12 to the defence that they took all reasonable steps and exercised all due diligence to prevent the breach. 44. None of the Sample claimants or Comparators were registered persons, so the 2014 Regulations did not apply directly to them. However, the Claimants proposed that each job description should include a list of those Fundamental Standards to which the employee’s work was relevant. The Defendants opposed this proposal, on the basis that it risked trespassing into the evaluation, rather than merely the description, of their work, which at this stage is a matter for the expert, and not for the Court. 45. I agree with the Defendants that it would not be appropriate to include the proposed list in the job descriptions. It would be unnecessary and unhelpful and might involve the Court in going beyond its proper function at this stage:(1) An employee’s work can be adequately described without the proposed list.

(2) The expert will be able to have regard to the regulatory framework, including the Fundamental Standards, in assessing the value of each person’s work. Insofar as he deems it appropriate to take these matters into account, his assessment is likely to be considerably more nuanced than simply saying, for each employee, “Their work is (or is not) relevant to this or that Fundamental Standard.”

(3) It follows that it is unlikely that the expert would be assisted by the proposed list.

(4) However, if the proposed list were to influence the expert’s opinion as to the value of an employee’s work, then that might in itself be an undesirable outcome, since the Court ought not to be dealing at this stage with the evaluation of the employee’s work, but merely the identification of that work.’

[21]A further paragraph of much assistance to us was paragraph 88 of the judgment of Lavender J where this was said about the work of a claimant by the name of Mrs Shore. “In relation to Mrs Shore’s work, the Defendants relied on the evidence of Mrs Greatrex. She said that there were some issues concerning Mrs Shore’s attitude, including one complaint, although I was not told the outcome of this complaint. It is not relevant for present purposes, since the aim of this exercise is to describe her work, not whether she was doing it well or badly.” Case Numbers: 3304495/2018 & others 13

[22]The next part of the judgment of Lavender J was about another issue relating to Mrs Shore. In paragraphs 89-91, Lavender J said this, which we also found illuminating. ‘89. In their closing submissions, the Claimants proposed the following revised wording: “The JH worked in a pressurised environment because of her responsibility to complete certain fixed tasks during each shift, as well as helping with Care Assistant tasks, as described elsewhere in this JD. Understaffing of the dementia unit where the JH worked increased the work pressure on her. The unit was understaffed in November 2015 and October 2016, but not as at 16 May 2017. Throughout the JH’s employment, including as at the Material Date, it was part of her role to deal with any increased pressures that arose as a result of any understaffing.”90. The two paragraphs of this proposed wording represent two distinct aspects of this issue. The first paragraph is essentially an evaluative issue, i.e. whether the demands of Mrs Shore’s job, as set out elsewhere in the job description, and assuming no understaffing, should properly be described as a “pressurised environment”. It would be neither appropriate no[r] helpful for me to apply that label to Mrs Shore’s work, since the evaluation of her work is a matter for the expert at this stage.

91. The second paragraph is accurate and, in my judgment, should be included in Mrs Shore’s job description. It is clear from CQC reports that understaffing had been an issue at Rowan Court, but appeared to have been resolved by 16 May 2017. It is perhaps only a statement of the obvious that a shortage of staff will create additional pressures for any senior employee, but that will be a matter for the expert to consider.’

[23]We found paragraphs 104-105 of Lavender J’s judgment to be of material assistance to us also. They (like paragraph 91 of that judgment) showed that there may in some cases be “merely a statement of the obvious”, in other words something that adds nothing material to the factual position, but that in some cases the statement may be about something that increased the value of an employee’s work.

[24]A number of other parts of the judgment of Lavender J in Beal were of assistance to us in that they confirmed our own initial thoughts about the approach which we should be taking towards the assertions of the parties in this case. By way of illustration, paragraph 219 of the judgment showed that the words “Initiative and creativity had to be used in the performance of this task which involved steps Case Numbers: 3304495/2018 & others 14 such as ordering relevant materials and using his carpentry and other skills to complete the conversion” should not be included because whether or not that was so was an “evaluative issue”. Prest v Mouchel Business Services Ltd

[25]In Prest v Mouchel Business Services Ltd

[2011] ICR 1345

, Underhill P was obliged to decide whether or not changing the comparator in an equal pay claim involved, necessarily, the making of a new claim. That was relevant because of the 6-year time limit for which provision was made in section 2ZB(3) of the Equal Pay Act 1970 (the predecessor to section 132 of the EqA 2010). In paragraphs 11-13 of his judgment, at 1349-1350, Underhill P said this (we have for convenience in this and the quotation from that judgment set out below inserted the endnotes and for the sake of clarity underlined their text): ‘11 ... [T]he sole issue which I have to decide is how section 2ZB applies in the case of a claim by reference to a comparator added by amendment. It was common ground that there were only two possible answers:(a) that the arrears date is for all purposes the date of the institution of the proceedings themselves, i.e. the presentation of the ET1, and that the fact that the particular comparator was named later is irrelevant; or

(b) that, in relation to that comparator, the proceedings are only instituted when the application to amend is made. [Endnote 2: Mr Blake made it clear that he did not argue that the relevant date was when the application was granted.] [Mr Blake was counsel for the employer in that case. Co-incidentally, he appeared before us led by Mr Jones, acting for the Leigh Day claimants.] 12 The starting-point in choosing between those alternatives is that in my judgment Parliament in enacting section 2ZB(3) must have been concerned with when the substantive claim which attracts the liability for arrears was first formally brought before the tribunal. In the case of a claim introduced by way of amendment to existing proceedings, the date at which those proceedings were first instituted is logically an accident, and it does not makes sense to determine the relevant time limits by reference to it. If the claim is new in substance then it is artificial and unreal to regard it as having been instituted at some earlier date simply because an earlier claim with which it has become procedurally entwined was instituted at that date: cf the reasoning, albeit that the specific statutory provisions are different, of Brandon LJ in disapproving the “relation back” theory in Liff v Peasley

[1980] 1 WLR 781

(see at pp. 799–803), subsequently approved by the House of Lords in Ketteman v Hansel Properties Ltd.

[1987] 1AC 189

. My view on this point is in accordance with the decision of Slade J in Potter v Case Numbers: 3304495/2018 & others 15 North Cumbria Acute Hospitals NHS Trust (No 2)

[2009] IRLR 900

: see paras 114-116 (at p 913). 13 Thus the real question is whether the claims by reference to Mr. Welsh and Mr. Blenkinsop are substantively different from that which was initially pleaded. As to that question, there is a certain amount of recent authority to which both the parties referred. I review it as follows.”

[26]Having reviewed that authority, Underhill P said this. “21 In these circumstances I have thought it right to start with a clean slate, putting the authorities to one side for the present. I also put to one side the phrase “cause of action”, not because I think that the cases which employ it are irrelevant but because it comes with a certain amount of baggage which may get in the way. 22 On the basis set out at para 12 above, the essential question with which I am concerned is whether the two claims – the one originally pleaded and the one introduced by way of amendment – are in substance the same. In my view that does not depend as such on the identity of the individual comparator named. Take a case where a hundred men are doing an identical job. As a matter of procedure, it has, at least in domestic law, been conventionally regarded as necessary for a claimant to identify one of those men – let us say A – as her comparator. But in fact which individual she chooses is a matter of indifference. [Endnote 4: For myself, I can see no logical reason for the practice of requiring the naming of an individual comparator in all cases, and specifically in “collective” cases. The reference under each of the heads of section 1(2) to “a man in the same employment” need not require the naming of a particular man; still less can any such requirement be found in the EU legislation. In the straightforward case where the pay is the same for all the men doing the particular work which the claimant says is of equal value to her own, I do not see why it should not be sufficient to plead “I claim to be paid the same as the widget-makers, who are all men” (or, it might be, “the grade 1 widget-makers”). Indeed the practice in the mass equal pay claims which are currently going through the system is that cases are generally initially pleaded in precisely that fashion. Though it is regarded as necessary for individual comparators to be named eventually, that is essentially by way of particularisation. I asked counsel if they could shed light on the origins of the practice of requiring the naming of names, and they helpfully provided notes following the hearing; but they were not able to find any authoritative discussion of the question. The earliest relevant reported case appears to be Clwyd County Council v Leverton

[1985] IRLR 197

, which takes for granted that individual comparators must be named but holds that it is legitimate to start by pleading a general case and giving further particulars after disclosure. I would not wish, by drawing attention to this point, to be thought to be recommending the discontinuation of the current practice. It remains the law that a claimant must be able to establish an actual, as opposed to a Case Numbers: 3304495/2018 & others 16 hypothetical, comparator in an equal pay claim (see Walton Centre for Neurology and Neurosurgery NHS Trust v Bewley

[2008] ICR 672

); and such are the complexities of local authority (and NHS) remuneration that it is a healthy discipline to ensure that general claims are made by reference to identifiable individuals. But it may nevertheless be worth bearing in mind that it is no more than a practice, and not a fundamental principle. (I should mention for completeness that Mr. Blake suggested that the reasoning in “Enderby (no.2)” – Evesham v North Hertfordshire Health Authority

[2000] ICR 612

— was relevant in this context, but I did not find anything in it which explicitly addressed the question.)] What matters is whether the work that they (all) do is comparable [Endnote 5: It would be more useful to say “of equal value to hers”, because that is the underlying question, as appears clearly from the EU legislation and the ECJ case-law. But unfortunately our domestic terminology has appropriated “equal value” as the label for a particular category of claims, i.e. those where the work is not “like” and has not been the subject of a formal job evaluation, so that the tribunal has to make its own judgment on the issue of equality of value.] to hers: it is the receipt of unequal pay for equal work which is the foundation of an equal pay claim. If the claimant subsequently decides for reasons of convenience [Endnote 6: Experience shows that there are many reasons why this may need to be done. The comparator(s) originally named may have been mistakenly identified as doing the work in question, or they may turn out on closer investigation to be atypical in some way. Or there may be pragmatic reasons for a change, such as that their documents may have gone missing, or they may be unavailable to give evidence or to have their work evaluated by an expert.] to substitute a fresh comparator – B – doing the same work as A (or as A was thought to have been doing) that does not mean that the nature of the claim has changed: whichever is taken as the individual comparator, the work is the same. 23 In my view, therefore, what matters is whether the work said to be being done by the new comparator is different from that said to be being done by the comparators originally named. It is only if it is indeed different that a substantially new claim is being advanced for the purpose of section 2ZB(3) (as explained at para 12 above); and the same applies to cognate questions such as that which arose in Brett.” The manner in which the hearing before us was conducted

[27]The opening skeleton argument for the claimants represented by Harcus Sinclair UK Limited (to whom we refer below as “the Harcus claimants”) helpfully summarised the manner in which they and the claimants represented by Leigh Day (to whom we refer below as “the Leigh Day claimants”) had divided up the work of preparing for, and presenting, the claimants’ cases in the hearing before us. In paragraphs 5-7, this was said (with a footnote, which we have inserted, underlining its text for the sake of clarity). Case Numbers: 3304495/2018 & others 17 “5. The first claims in this case were presented in February 2018. There have been many Preliminary Hearings since then. The approach approved by the tribunal has been to divide store roles carried out by the Claimants into three tranches. The first tranche covers three roles: Customer Assistant Replenishment, Customer Assistant Express, and Customer Assistant Nights. 6. Six sample Claimants have been selected and their equal value claims have progressed to this stage; all other claimants in tranche 1 roles [Footnote: There is an ongoing debate as to what effect the outcome of the sample Claimants’ equal value claims will have for others in the same, tranche 1, roles. There is also ongoing debate as to how and when the tranche 2 and 3 claims should progress, and that matter is listed to be determined at a further PH in May 2023.] await the outcome of those claims. 7. This Stage 2 hearing has been listed to hear evidence in relation to the sample Claimants (two of whom worked as Customer Assistant Express, another two as Customer Assistant Nights, and the final two as Customer Assistant Replenishment) and 8 sample comparators (4 of whom worked in ‘ambient’ Distribution Centres (‘DCs’) and the other 4 in ‘fresh’ DCs). There is one Harcus Claimant and one Leigh Day Claimant in each of the three tranche 1 roles, and it has been agreed that Harcus will take the lead in respect of the fresh DC comparators, and Leigh Day in respect of the ambient DC comparators. The following skeleton submissions therefore focus on the 3 Harcus Claimants who are sample Claimants, and on the 4 fresh DC comparators.”

[28]We were fortunate to have appearing before us counsel who had a great deal of collective experience of, and expertise in, the law of equal pay. We were assisted greatly by their submissions and their focused approach to the presentation of the evidence. They all acted with highly commendable skill and worked very hard to ensure that we were able to hear all of the evidence and submissions more or less within the originally-set timetable, albeit that (as we describe below) we expanded the hearing considerably. We are grateful to all of them. The approaches of the claimants and the respondent towards the evidence and the issues differed considerably, however, and we were as a result obliged to determine some issues of general principle. It was, as can be seen from the extract from the respondent’s main opening skeleton argument that we have set out in paragraph 5 above, being said to us that we were going to have to determine thousands of factual disputes. Initially, we accepted (because we had no basis for declining to accept) that assertion. However, we bore it in mind that it was necessary for us to apply our own critical analysis to the question of what factual disputes required determination. The Leigh Day claimants’ main opening skeleton argument in fact urged us to do that, and we found that we could best set the scene for our discussion about and determinations on at least some of Case Numbers: 3304495/2018 & others 18 the issues of principle which arose by setting out the following long passage from that skeleton argument. ‘WHY ARE THERE SO MANY ISSUES TO DETERMINE? 19. As we said above, in theory the Tribunal’s task at a Stage 2 Hearing should be a straightforward one. All that is required is to decide what work the employees do. One might expect there to be very little dispute. The problem, the Tribunal will have anticipated, is that the procedure makes no provision for the parties to put their case on the demands arising from the work before the IEs prepare their report. That, of course, is deliberate. The content of the EVJD is not intended to be an exercise in advocacy on the substantive merits of the question. Where a party tries to use the EVJD to make a case on equal value, it distorts the process and makes agreement impossible. 20. In practice, this distortion takes three forms, each of which are to be found in the Respondent’s approach to the EVJDs:(1) The talking up (to the point of exaggeration) of the work performed by the comparators;

(2) The talking down (to the point of devaluation) of the work performed by the Claimants; and

(3) The smuggling into the job descriptions of evaluative language in, it is presumed, the hope of affecting the IEs’ assessment at least sub-consciously. 21. It was precisely in order to avoid this possibility that an effort was made to agree points of principle at the outset of the series of round table meetings (also referred to as “RTMs”). Those principles were formulated with help from the IEs who helpfully indicated what would likely assist them. The principles were set out in writing and a copy is at {H/30/1} (“the PoP Document”). The Claimants initially understood that these principles had been agreed by the parties at the RTMs. However, the Respondent’s subsequent comments on the PoP document suggest an unwillingness to engage positively in the process. The Respondent then took a decision to cease participation in the RTMs altogether. 22. The effect has been to leave a very large number of disputes for resolution, a great many of which are about the inclusion of language which is either expressly evaluative (i.e. it refers not to the job tasks but the demands placed upon the employee) or else is either intended to (or risks) influencing the evaluation of demands. This was a matter raised by the Leigh Day Claimants at the last Preliminary Hearing. The Tribunal will recall that a hope was expressed that discussion might Case Numbers: 3304495/2018 & others 19 lead to a material narrowing of the scope of such disputes. Whilst there has been some narrowing of issues it has not been as significant as the parties might have hoped or the Tribunal may have expected. WHAT ARE FACTS? 23. The question “what are facts” may sound philosophical, but there are two practical issues: (1) “Editorial” disputes; and (2) Expressions of opinion. Editorial disputes 24. Each party is responsible for its own EVJDs. If a party’s EVJD asserts something as fact and its truth is disputed, the Tribunal may be asked to make a finding. However, it is not open to the other party to insist that a statement of fact is phrased in a manner which is more to their liking. For example: (1) at paragraph 337 of Janice Cannon’s EVJD, the Respondent seeks to change “JH provides customer service” to “JH provides assistance to customers” {C4/3/80}; (2) at paragraph 343 the Respondent insists that “serving customers on the shop floor” be changed to “assisting customers on the shop floor” {C4/3/81}; and (3) at paragraph 389 the Respondent seeks to change “JH checks all over the item to see if there are any marks or dust / dirt on it” to “JH glanced at the item to see if there are any marks or dust / dirt on it” {C4/3/90}. 25. Another example of an editorial dispute is where one party insists that additional material which does not directly describe the job should be introduced as “context”. Usually, the purpose of the proposed inclusion is advocacy on the question of equal value. In other words, it is intended to diminish or increase the perception of the demand that the job imposes rather than describe what it is that the jobholder does. This sort of “advocacy” on the demands of the role is inappropriate at a Stage 2 Hearing. The Tribunal should reject it, whether it is an attempt to devalue the role in a RoD, or embellish it in the EVJD. For example: (1) at paragraph 1 of Carole Worthington’s EVJD, the Respondent seeks to add: Case Numbers: 3304495/2018 & others 20 “The Woolton superstore is based in a quiet, affluent, area of Liverpool. It was a community store, with suburbs around it. Given its location, the store had older clientele and regular customers; local customers would visit the Store’s café for a chat. There were Customer Assistants who worked at the store until they retired, as well university students and younger employees. JH’s husband and daughters also worked at the store. The store had a relaxed atmosphere, and the job holder found it to be a happy place to work. Colleagues, including managers, would laugh and joke whilst getting the job done and it felt like a family. The JH usually had the flexibility to take her breaks when she wanted to and to complete tasks that she preferred such as reductions, safe and legal checks and replenishing promotion ends. The JH did not have targets and was not under any pressure to complete tasks within a defined timeframe” {C6/3/1}; (2) at paragraph 9.2.22 of Siobhan Williams’ EVJD, the Respondent seeks to add (to the paragraph on notifying customers of promotions): “However, JH was not expected to be able to recall all such promotional offers and there were no consequences for the JH if the offer was not explained to the customer on every occasion” {C5/3/40}; (3) at paragraph 1.2.2 of Siobhan Williams’ EVJD, the Respondent seeks to expand the sentence, “A security guard works from 15:15 – 23:00 every day”, by adding, (as well as details of shift patterns across the RP): “When on shift, the security guard is located in between the store entrance and the checkouts and given the short distance, is able to clearly see and hear what is going on at the checkout, as well as at the entrance to the store. As there is a large area around the checkouts and entrance without much shelving, the security guard has a good view of the store. The security guard also walks around the shopfloor and walks over to any customers looking suspicious to deter shoplifting” {C5/3/2};

(4) at paragraph 32 of Janice Cannon’s EVJD, the Respondent seeks to insert the wording: Case Numbers: 3304495/2018 & others 21 “The JH’s tasks were routine and repetitive, and the only factors generally having any material bearing on the order in which those tasks were done was the timing of the delivery and the tidiness of the shop floor on a Thursday” {C4/3/9}.

(5) the Respondent seeks to insert a new paragraph 1.1.6 in Siobhan Williams’ EVJD that says: “During the RP, the JH enjoyed herself at work, getting on well with colleagues (one of whom was the JH’s cousin) and generally having a laugh. The JH explained that the JH felt comfortable at the store, which was a “community store” (with regular customers from the neighbouring area who JH would chat to) and that the JH liked the job. The JH and five of her colleagues worked at the Kingstanding store throughout the RP, with a further colleague starting in September 2012 and working throughout the RP. The JH knows her colleagues well, having worked closely with them over a number of years. The JH was not subject to targets during her shifts and there was no pressure on the JH to complete certain tasks before her shift ended” {C5/3/2} 26. The purpose of the suggested amendments set out above are, pretty obviously, to provide “context” that is intended to suggest that the jobs were somehow less “demanding” than they might otherwise be thought to be. As one might expect, the Comparator EVJDs similarly contain irrelevant “context” which is included for the opposite purpose. For example: (1) Section 2 of the comparator job descriptions is intended to be a “context section”. However, they are drafted to exaggerate the role of the comparators. They state that: (i) “Ensuring the continuous and efficient delivery of service by Thurrock DC was critical to the supply of Stock to Tesco’s customers; any material or sustained disruption to that service had a direct and adverse impact on the availability of stock for the 526 Stores it serviced and the customers who shopped in them” (see, e.g. Hornak EVJD at paragraph 2.9 {D6/1/19}); (ii) “Every policy, process, operation, and activity implemented or otherwise used in the DC was designed and applied to ensure maximum Case Numbers: 3304495/2018 & others 22 productivity and minimum disruption to service at all times.” (see, e.g. Hornak EVJD at paragraph 2.12 {D6/1/10}); (3) [sic; not (2)] Section 8 of the ambient comparator job descriptions is almost entirely commentary on and analysis of the comparator roles, by reference to “performance management regime”, “accuracy”, “management processes for accuracy”, “personal accountability” and “absence management” (see for example Hornak, section 8 of EVJD at {D6/1/147 to 153}). Expressions of opinion 27. There are two significant issues that the Tribunal will need to beware of under this heading: express advocacy on the issue of demands and the use of what has been referred to by the parties as “evaluative” language. Demands 28. The comparator EVJDs contain sections which deal explicitly with demands. It is anticipated that all parties will ultimately provide the IEs with similar material as the IEs have told the parties that they are likely to find it useful in due course. However, it is important for the Tribunal to have in mind that it is not being asked to make any findings on issues of demand at this stage. The commentary on demands is not to be treated as setting out “facts” because that would effectively bind the IEs on an issue which, at this stage, is a matter for them. Accordingly, any such commentary should be excluded from the EVJDs.

[29]There are examples throughout the comparator EVJDs and are best seen in the RoDs for the comparators and identified within the category “analysis/evaluation”. For example, in the RoD for Ernie Davis:(1) Within section 2 (which is supposedly a “context” section), paragraphs 2.19 to 2.21 refer to “System Direction, Control and Monitoring” {D5/4/2}, and 2.34 to 2.36 refer to “Risks and Hazards” {D5/4/3}.

(2) Within section 3 (supposedly an overview section), 3.30 to 3.32 refer to the supposed “monotony” of the comparators’ work {D5/4/7}; Case Numbers: 3304495/2018 & others 23

(3) Section 6 includes sections on “Burden of Responsibility” {D5/4/27} and “Burden of Accountability and Responsibility” {D5/4/55};

(4) Section 7 contains sections on “focus and concentration” and “stamina” {D5/4/83};

(5) Section 8 is titled “Performance and Accountability”; and

(6) Sections 9 and 10 are titled Working Conditions {D5/4/87} and Risks and Hazards {D5/4/93} and contain repeated analysis and evaluation (as well as significant repetition of earlier parts of the EVJD). Evaluative/Analytical/Subjective Language

[30]The second significant issue is the frequent use of evaluative language. This is a broad category. However, it is clear that the use of language may potentially influence how demands are assessed. This has been acknowledged by the International Labour Office in its document “Promoting Equity, Gender Neutral Job Evaluation for Equal Pay: a Step-by-Step Guide 2008”. This states (at page 51): “Another aspect which may influence the evaluation is the use of terms which devalue a job, for example: “Routine” “Basic” “Simple” “General” “Only” Thus, use of terms which devalue the job requirements should be avoided.”

[31]While the ILO document focussed on job evaluation studies, the EVJDs in equal value claims should similarly avoid language which devalues or overvalues the requirements of the jobs being compared.

[32]Different types of evaluative language are considered in turn immediately below: the common theme is ... the Respondent’s use of language in its comparator EVJDs and Claimant RoDs in an inappropriate way to seek to overvalue the comparator roles and devalue the Claimant roles. Responsible

[33]In most cases, it should be possible simply to describe what someone does. Describing them as being “responsible” for doing it adds an evaluative gloss. For example, [if] one says “I put the bins out on a Thursday night”, that describes the task. If one says “I am responsible for putting the bins out on a Thursday night” that imbues the task with Case Numbers: 3304495/2018 & others 24 an implied importance which is really aimed at creating an impression of increased demand.

[34]Because “responsibility” is a matter which is very often taken into account by job evaluation experts, the danger of over- and misuse of the word is a familiar issue. It is for that reason that it was raised specifically at the round table meetings (“RTMs”) and referred to in the PoP document.

[35]The original proposal was as follows: “The word ‘responsible’ is to be reviewed and removed from the EVJDs. Where there are relevant facts which might be relevant to the issue of personal responsibility (such as an absence of checks by another person) a narrative explanation of the relevant facts should be provided. The IE will then be able to take account of those facts to the extent which the IE considers appropriate.” {H/27/4, at paragraph 12} The IEs agreed with that proposal {H/28/3 at paragraph 9 in red text}. The idea was that rather than, as it were, using the word “responsible” to hint at some particular personal responsibility, it should instead be spelt out. The Respondent’s position was that the use of the word responsible was to be reviewed but they took out the reference to it being removed and added further caveats on when it could be used (see the PoP Document: {H/29/4}). The final version of the PoP Document simply stated that the word “responsible” would be reviewed. {H/30/4}.

[36]In accordance with the PoP document, the Leigh Day Claimants have largely removed the word “responsible” from their Claimant JDs unless the specific use was justifiable, particularly if it was a personal legal responsibility (such as selling age-restricted products to underage customers). The Leigh Day Claimant EVJDs use the word “responsible” between 3 and 6 times (excluding where used as part of the name of a training course). By contrast, the ambient comparator EVJDs use the word “responsible” over 30 times (except in relation to Wayne Jones who performed assembly activities, where the word is used 7 times). For example, the EVJD of Ernie Davis states that he “was responsible for unloading a range of UoDs” {D5/1/20, paragraph 3.15}, and that he was “responsible for collecting those UoDs” D5/1/20, paragraph 3.16}. These are simply a misuse of the word, in an attempt to exaggerate the task being performed, and should be replaced with a sentence explaining what was done: i.e. in the first example, the job holder “unloaded a range of UoDs”. Had to/required to/might do/may do Case Numbers: 3304495/2018 & others 25

[37]The Respondent has repeatedly stated in comparator JDs that a comparator “had to” or “was required to” do something, rather than simply saying “he did it”. The EVJD of Ernie Davis uses the phrase “had to” in 192 paragraphs, and the phrase “required to” in 108 paragraphs. See, for example, in paragraph 3.6 {D5/1/18} “the job holder had to push pull and twist”; in paragraph 3.21 {D5/1/20} “the job holder had to manually handle”; paragraph 3.37 {D5/1/22}, the job holder had to travel to waiting lanes.”

[38]Again, this language goes beyond a simple description of what is done. It is done too often to be a mere accident of drafting. It is likely intended to contrast with the irrelevant “contextual” material described at paragraph 25(5) above, where the Respondent appears to be keen to suggest that working in a store is an environment which has few demands and little pressure of expectation. In that context, the gloss of obligation added by this use of language is, like the use of the word “responsible”, intended to make an unstated point about job demands.

[39]A further contrast is seen in the Respondent’s approach to the Claimant RoDs. While in the EJVDs, the Respondent states that the comparators “had to” and were “required to” do things, in the Claimant RoDs the Respondent has repeatedly changed the descriptions of the work that the Claimants “do” to say that they “may”, “might” or “could” do such work. Subjective language

[40]The comparator EVJDs are littered with evaluative and subjective language. To give some examples: in Ernie Davis’ EVJD “careful” or “carefully” are used 15 times; “pressure” or “pressures” are used 18 times; “monotony” or “monotonous” are used 10 times; “concentrate” or “concentration” are used 12 times; “demand”, “demands” “demanded” or “demanding” are used 19 times. There are other examples.

[41]By contrast, in the RoDs prepared in response to the Claimant EVJDs the Respondent seeks to add subjective language to the Claimants’ EVJDs which has the effect of minimising or devaluing the work they do. For example, the Respondent proposes inserting the word “routine” at 7 points in Carole Worthington’s EVJD and at 5 points in Janice Cannon’s EVJD. In the Respondent’s proposed changes, the word “only” is inserted to convey a limitation on the work done 6 times in Carole Worthington’s EVJD, 9 times in Janice Cannon’s EVJD and 21 times in Siobhan Williams’ EVJD. This is exactly the language that the ILO guidance (paragraph 30 above) states should not be used as it devalue[s] the role. Specific examples include: at paragraph 3.7.3 of Siobhan Williams’ EVJD, which deals with responding to customers’ body language, the Respondent seeks to add “although JH would Case Numbers: 3304495/2018 & others 26 likely only notice such body language in the most obvious of cases” {C5/3/16}6; and at paragraph 9.3.5, concerning resetting the till receipt machine: “it only involved the JH pressing the reset printer button on the Mainbank Checkout” {C5/3/41} [Emphasis added]. The suggested language was not, it will be noted “the JH was ‘responsible for’ or ‘had to’ press the reset printer button …’. 29 In paragraph 14 of the respondent’s main opening skeleton argument, this was said. ‘The Harcus Sinclair claimants have suggested that it is for the full Tribunal to determine only “factual” disputes. However, as the EV rules make clear, if there is a dispute, the Tribunal must also determine the relevance of asserted facts to the question of whether a claimant’s “work” is of equal value. What “relevance” means for this Stage 2 hearing is that if a fact might reasonably be relevant for the purposes of the later assessment of value by the IEs or party experts, that fact must be included in the job description.’ 30 There was no authority given for the proposition in the final sentence of that paragraph, and none was provided to us during the course of the hearing. The proposition did not take into account the effect of rule 6(3) of the EV Rules, which is in these terms: “At any stage of the proceedings the independent expert may make an application to the Tribunal for some or all of the facts relating to the question to be amended, supplemented or omitted.” 31 The Harcus claimants also said this in paragraph 18 of their main opening skeleton argument. “The Harcus Claimants recognise that completing the evidence in the allotted time will require robust tribunal management of the hearing, and that none of the parties is likely to be able to ask all of the questions they would wish to if there were no time constraints. For example, one of the Respondent’s statements served in relation to a Harcus Claimant (from Matt Diment) is 187 pages long (which is nearly twice as long as the JD to which it responds) and to ask about every disputed matter in that statement would take many days. It should be remembered, however, that the aim of this hearing is for the tribunal to make findings of fact about what 6 store workers and 8 DC workers did at work on a day to day basis. To allow more than 5 weeks would, the Harcus Claimants say, be wholly disproportionate to that aim.” 32 The timetable which the Harcus claimants proposed was in fact the most attractive to us, as it used for the hearing of the evidence the time which had originally been set aside for the hearing of evidence. However, it was not realistic, given the volume of material which we were going to have to consider, even on the basis that much of the material before us was either a duplication or of at Case Numbers: 3304495/2018 & others 27 best only peripheral relevance and, if it were relevant, of only little weight. The timetable proposed by the respondent was not included in the respondent’s main opening skeleton argument and we saw it only because it was set out in an additional skeleton argument for the Harcus claimants in relation to the steps to be taken for the hearing of evidence from such of the witnesses as were properly to be regarded as vulnerable. The respondent’s proposed timetable proposed the use of the whole of the hearing time up to and including 28 April 2023 for the oral evidence of and relating to the six sample claimants. That evidence consisted of the sample claimants’ own oral evidence and much oral evidence intended to be adduced by the respondent in response to that of those claimants. The respondent’s proposed timetable did not allow any time for the evidence on behalf of the respondent from and in relation to the eight comparators. The justification for that stance was stated in the following paragraphs of the respondent’s main opening skeleton argument. ‘TIMETABLE 119 The parties will work to seek to agree a timetable. The claimants’ counsel have kindly sent a first draft timetable to the respondent’s counsel. 120 It is important to note that Stage 2 hearings are not like regular Tribunal cases where all facts do not necessarily have to be found as many will be background to the central issues in dispute. In Stage 2 hearings, every point of fact in dispute which is relevant to evaluation requires determination for the purposes of the job description, and in this case, there are thousands of them (although the parties will continue working to narrow disputes up to and during the hearing). 121 The respondent’s overriding concern is that it would not be in the interests of justice for the case to be shoehorned into the available time at the cost of the opportunity to test all issues in dispute properly. 122 As HHJ Clark said in the equal pay context, “proportionality […] cannot override the duty to do justice according to law between the parties” Hovell v Ashford & St Peter’s NHS Trust

[2009] ICR 254

, para 11. There are other authorities in other fields of law expressing the same approach – that fairness must not be sacrificed to speed.’ 33 The problem with the approach which was proposed by the respondent at that time was that it assumed that the hearing would have to be adjourned part-heard, and such an adjournment would have been highly undesirable from the point of view of the doing of justice. In addition, if we accepted the proposed approach of the respondent then the length (and therefore the costs) of the hearing would be increased considerably. The claimants’ counsel both (understandably and justifiably) expressed considerable alarm and concern at the prospect of those things. However, the first day of the hearing was taken up entirely by the advancing of three applications, one made by each set of claimants and one Case Numbers: 3304495/2018 & others 28 made by the respondent. The first two applications were made by the Leigh Day claimants and the respondent for the taking of measures over and above those which had been agreed by the parties with a view to ensuring that all of the parties’ witnesses who might be considered to be vulnerable were able to give their evidence effectively and fully. The third application was made by the Harcus claimants and was for us to exclude (i.e. not admit as evidence) certain passages from the witness statement of Mr Matt Diment. 34 On 7 March 2023, we the tribunal spent a day(1) reading as much as we reasonably could in order to start to be able to hear evidence and

(2) considering those three applications. During the course of 7 March 2023, we sent by email our decisions on the three applications and our reasons for them. We say no more here than that we dismissed all three applications for the following summary reasons. We dismissed the first two applications because we concluded that the measures which had previously been agreed by the parties would in our view be sufficient. We did not determine the third application fully on 7 March 2023. We left it open to the Harcus claimants to press that application if it appeared to them to be necessary to do so. The possibility that it would not be necessary to do so arose from the fact that we, through EJ Hyams, repeatedly said to the parties both on the first day of the hearing and on the second day with the parties present, 8 March 2023, and subsequently, that we would be determining only relevant factual matters, and because Mr Epstein helpfully said that (1) the respondent would not be relying at this stage 2 hearing on any assertions of fact in the respondent’s witness statements or EVJDs which were not material to the issues which we had to decide at this stage 2 hearing, and (2) things which were relevant only at a final hearing within the meaning of the EV Rules fell within that description of immaterial factual assertions. However, Mr Epstein was not willing to accept on behalf of the respondent that the physical location of a distribution centre (“DC”) was not material in a stage 2 hearing. He also asserted that “the presence or absence of direct or indirect supervision is going to be highly relevant”. 35 On 8 March 2023, EJ Hyams discussed with the parties the need to confine the scope of our inquiry to those things, and only those things, which were relevant, albeit that if something factual was relevant only peripherally then we might conclude that it was not in the interests of justice, applying the overriding objective set out in rule 2 of the Employment Tribunals Rules of Procedure 2013, to come to a conclusion on that thing. Rule 2 provides this. “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; Case Numbers: 3304495/2018 & others 29 (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” 36 In the end as a result of

36.1 us (1) allocating to the hearing with the parties present days which had been set aside for our use in private, i.e. 2-5 May 2023, (2) allocating to the hearing some additional hearing days (28-31 March 2023 and 15, 16 and 23-24 May 2023),

(3) allocating an additional six days (11, 12 and 14 April 2013 and 9, 10 and 12 May 2023) for us to read (in private) witness statements and EVJDs, and in the latter set of days to start to read the transcripts of cross-examinations,

(4) doing much reading of the parties’ witness statements and EVJDs otherwise than during the hearing day, and

(5) limiting the time for the cross-examinations of both parties, and

36.2 much hard work and co-operation on the part of all of the parties during the period from 6 March onwards, the oral evidence of the parties was concluded by 16 May 2023. We then heard oral submissions on 23 and 24 May 2023. Site visits 37 In addition, we carried out site visits on days which were not originally set aside as hearing days for the tribunal. On 22 February 2023, we spent a day visiting three of the respondent’s stores at which some of the sample claimants worked. They were Watford Extra, Danbury Express, and Broomfield Road Express. The latter two were situated in Essex. 38 On 13 April 2023, we visited the respondent’s Thurrock Distribution Centre and its Hinckley Distribution Centre, at which some of the comparators worked. Translation issues 39 The time which we had to hear oral evidence was reduced by an application which was made by Mr Purchase on behalf of the respondent at the start of the hearing day on Friday 21 April 2023. That was the day after Mr Macko’s evidence Case Numbers: 3304495/2018 & others 30 had been given through an interpreter of the Slovak language. The application was for permission for the original versions of the witness statements of at least (see below in this paragraph) the other two comparators for whom English was not their first language, which were made in those witnesses’ first languages, to be put before those witnesses while they were giving evidence. Those other two comparators were Mr Hornak and Mr Pustula, whose first language was, respectively, Slovak and Polish. We did not understand Mr Purchase to be asking for Mr Macko to be recalled and given a further chance to answer questions by reference to the original version of his witness statement and a translation of the EVJD for him, but it appeared when we reviewed the text which we have set out in paragraph 43 below that he was envisaging that as a possibility. 40 The EVJDs for all of those comparators had (understandably) been written on behalf of the respondent in English. Mr Purchase applied for permission for translations of those EVJDs also to be put before those comparators when they were giving evidence. 41 The stated justification for the application was that the comparator witnesses would be put at an unfair disadvantage if they did not have their original witness statements and the translations of the EVJDs prepared in respect of them (i.e. those witnesses) by the respondent before them when they were giving

evidence.

[42]The application was vigorously opposed by both sets of claimants’ representatives.

[43]The justification for the application was initially put in this way by Mr Purchase. “It’s that the Slovakian versions of those documents should be used as the starting point for them, and I’ll explain why. But before I do that, it’s important to note first that Mr Macko’s grasp of English is stronger than Mr Hornak’s and, as I understand it, stronger than Mr Pustula’s, who will also be giving evidence next week. We’re in a position where necessarily significant passages of witness statements and job descriptions are being relied on, significant both in the sense that they’re quite long and in the sense that they’re quite dense, and in the sense that they’re quite technical. The translation exercise is obviously far from straightforward for the interpreter as well. What we say is that that situation clearly puts these witnesses at a disadvantage compared to witnesses who speak English as their first language. Those speakers have the luxury of being able to read those documents when they’re being asked questions, to go back to them, to remind themselves of them, to refer to them. The witnesses who don’t speak English as a first language do not have that. The level of concentration required of those witnesses as well is necessarily that much greater because they’re having to try to remember translations which have been given to them sometimes at considerable length. Obviously, the scope for misunderstanding is Case Numbers: 3304495/2018 & others 31 greater, partly through the process of interpretation, full stop. Partly because of those circumstances which I’ve just mentioned. So if I can turn, first, to the witness statements. There really ought, in my submission, to be no issue at all in terms of using the Slovakian versions of the statements or the foreign language of the statements as the starting point. In fact, arguably those should be used, because it is they that are the authentic document. The witness evidence was actually prepared in Slovakian and it’s the Slovakian statements which are approved and relied on by the witnesses. It’s the English versions which are the translations.”

[44]He added that “insofar as there is any difference of position in relation to the job descriptions and any basis for legitimate concern, the unfairness to the witness of being shown an English version of the job description, which they won’t fully understand, and then having to answer questions based on a spoken translation of what is sometimes very dense and technical and long material outweighs any such concerns.”

[45]Mr Jones on behalf of the Leigh Day claimants pointed out that they were not in a position to accept that any translation of the EVJD was accurate, and that the witness statements of the relevant witnesses which we had read and on which the respondent placed reliance were in English and had been certified to be accurate translations of the original versions in the witnesses’ native languages. Mr Hornak was expected to give evidence on that day. Mr Jones said that if the respondent were permitted to put before Mr Hornak a translation of the EVJD for him on that day, then the claimants would not be able to ascertain whether or not it was an accurate translation and therefore the claimants would not be in a position to deal with the evidence of Mr Hornak on that day.

[46]We refused the application advanced by Mr Purchase. We did so because we concluded that it would be contrary to the overriding objective in rule 2 of the Employment Tribunals Rules of Procedure 2013 to grant it. That was for the following reasons.46.1 Granting the application was not required by the interests of justice. That was not least because the witness statements of the witnesses who were being cross-examined and the EVJDs relating to those witnesses’ work were being quoted to those witnesses only to help them to understand the cross-examination question which was about to be asked of them.

46.2 Those witness statements and the EVJDs were at the time of the crossexaminations prior statements which would be relevant only as prior inconsistent statements, and only if the witness said something that differed from those statements.

46.3 Those witness statements and EVJDs did not need as a matter of fairness to be read to the witnesses before the cross-examination question was put; they were being put to the witnesses in that way as a result of an agreement between the parties that the witnesses would be given more warning of the Case Numbers: 3304495/2018 & others 32 reason for the question than was required by the common law. The main purpose of that agreement was to help those witnesses who could be regarded as vulnerable, to give reliable evidence.

46.4 While what was sought was said by Mr Purchase to be required out of fairness to the relevant witnesses, they were not accused of any wrongdoing, and the only potential unfairness, if such were caused, would be caused to the respondent.

46.5 Fairness to the respondent was in our view achieved here by the provision by His Majesty’s Courts and Tribunals Service of an independent interpreter, at public expense.

46.6 If we granted the application then there would be a delay at that crucial stage of the hearing, when we already had a tight timetable for the completion of the oral evidence and submissions.

[47]We could see no appellate authority for doing what was sought in the application advanced by Mr Purchase. While that factor was in no way determinative, it fortified our conclusion that the provision of an independent interpreter was sufficient to satisfy the requirements of fairness and the interests of justice.

[48]As it happened, during the course of the hearing, the respondent added to the hearing bundle the original witness statements of Mr Hornak and Mr Pustula and translations of the EVJDs for them, and on several occasions when those witnesses were being cross-examined, we permitted (without objection by the claimants’ counsel) them to look at those documents before answering a question. For the sake of completeness, we record here that during the making by the parties of closing oral submissions, Mr Purchase indicated that he would, if we had granted the application to which we refer in paragraph 39 above, have asked that those documents were put before those witnesses rather more frequently than he did in fact do so. The witnesses from whom we heard oral evidence

[49]We heard from the following witnesses, in the following order. In each case, we state on whose behalf the witness was called and the day, or days, when they gave oral evidence.49.1 Mrs Carol Worthington. She was one of the sample claimants. She gave evidence on 8 and 9 March 2023. At all material times (i.e. throughout the period from 18 February 2012 to 31 August 2018, to which we refer from now on as “the relevant period”) she worked as a “Customer Assistant – Replenishment” in the dairy department at the respondent’s Woolton Superstore (“Woolton”).

49.2 Mr Colin Richardson. At the time of giving evidence to us he was the Manager of the respondent’s Church Road Haydock Superstore Case Numbers: 3304495/2018 & others 33 (“Haydock”) and had been the manager of Woolton from July 2014 until the end of the relevant period. He gave evidence on behalf of the respondent in relation to the work done by Mrs Worthington. He did so on 10 March 2023.

49.3 Ms Rebecca Thompson. She was a sample claimant. She worked as a customer assistant in the non-food department of Haydock, replenishing from 4.45pm to 10pm on Friday and Saturday evenings between 13 October 2017 and 31 August 2018. She gave evidence on 13 March 2023 and for most of 14 March 2023.

49.4 Ms Abbie Parkin. She was the respondent’s “F&F Clothing and General Merchandising Manager” at Haydock. She gave evidence on 14 March and for most of 15 March 2023 on behalf of the respondent in relation to the work done by Ms Thompson.

49.5 Ms Charlotte Pilling. She was employed by the respondent as a Team Manager during the period from 13 October 2017 to 31 August 2018 at Haydock. She gave evidence on 15 March 2023 on behalf of the respondent in relation to the work done by Ms Thompson.

49.6 Mrs Roxanne Garrod. She was a sample claimant. She worked at the respondent’s Danbury Express Store (“Danbury”) and the respondent’s Broomfield Road Express Store (“Broomfield”) throughout the relevant period as a customer assistant. She gave evidence on 16 March 2023 (when we started the hearing with the parties present at 11.00am) and until lunchtime on 17 March 2023.

49.7 Mr Matt Diment. He was the manager of Danbury and subsequently Broomfield during the relevant period. He gave evidence on behalf of the respondent about the work done by Mrs Garrod. He did so in the afternoon of 17 March 2023 and in the morning of 20 March 2023. (We then adjourned the hearing to the start of the next hearing day, 21 March 2023.)

49.8 Ms Siobhan Williams. She worked throughout the relevant period as a customer assistant at the respondent’s Kingstanding Express Store (“Kingstanding”). She was a sample claimant. She gave evidence on 21 and 22 March 2023.

49.9 Ms Catrina Jemmett. She was the manager of Kingstanding from 1 May 2017 to 31 August 2018 and gave evidence on behalf of the respondent about the work done by Ms Williams. Ms Jemmett gave that evidence on 23 March 2023 (when we commenced the hearing with the parties present at 11.00am) and for the first part of 24 March 2023.

49.10 Mr Andrew Woolley. He was employed as the Deputy Manager of Kingstanding from 5 August 2013 to 8 August 2016. He gave evidence on behalf of the respondent about the work done by Ms Williams. He did so Case Numbers: 3304495/2018 & others 34 on 24 March 2023 from 11:31 to 13:16, when we adjourned the hearing until Tuesday 28 March 2023.

49.11 Ms Toni Oz. She was a sample claimant and during the whole of the relevant period worked as a “Customer Assistant (Nights)” at the respondent’s Wisbech Superstore and then, when it closed and was immediately replaced by the respondent’s Wisbech Extra store (“Wisbech Extra”), at the latter store. She gave evidence on 28 March 2023.

49.12 Mr Richard Priest. He was employed by the respondent as a “Night Line Manager” in the respondent’s Wisbech Superstore from June 2013 to April 2014 and then, when Wisbech Extra opened in April 2014, he transferred to that store and worked as a “Night Team Manager”. He gave evidence on 29 March 2023 on behalf of the respondent about the work done by Ms Oz.

49.13 Mr Matthew Rouse. He was employed by the respondent as “Lead Night Manager” at Wisbech Extra from March 2017 to 31 August 2018. He gave evidence on behalf of the respondent about the work done by Ms Oz. He did so during the final part of 29 March 2023.

49.14 Mrs Janice Cannon. She was a sample claimant. She was employed throughout the relevant period as a “Customer Assistant – Nights” in the respondent’s Watford Extra store (“Watford Extra”). She gave evidence on 30 March 2023. She worked in the clothing department at Watford Extra during the relevant period. That department was known as “F & F”, having previously been called “Florence & Fred”.

49.15 Ms Alison Humphreys. She was the manager of the F & F department at Watford Extra from June 2014 to 31 August 2018. She gave evidence on behalf of the respondent about the work done by Mrs Cannon during that period. Ms Humphreys gave evidence on 31 March 2023.

49.16 Mr Christopher Gleiwitz. He worked at Kingstanding from August 2012 to February 2013. He gave evidence on 17 April 2023. He did so on behalf of the respondent about the work done by Ms Williams.

49.17 Mr Paul Evans. He was employed by the respondent as a shift manager at the respondent’s Magor DC throughout the relevant period. He gave evidence on behalf of the respondent about the work done by two of the eight comparators. Those two were Mr Wayne Jones (who, alone among the comparators, did not give evidence to us) and Mr Ernest Davis. Mr Evans gave evidence on 17 April 2023 and for most of 18 April 2023.

49.18 Mr Michael Rogers. He was employed by the respondent as a “People and Safety Trainer” (“PST”) at Magor DC from 2017 to 31 August 2018, but also doing the work described as “assembly” and “loading” which were the core of the work done by a number of the comparators. From the start Case Numbers: 3304495/2018 & others 35 of the relevant period until the time in 2017 when Mr Rogers became a PST, Mr Rogers trained colleagues on those tasks of assembly and loading at Magor as well as doing those things himself. Mr Rogers gave evidence on behalf of the respondent on 18 April and during the morning of 19 April 2023. His evidence related to the work done by Mr Ernest Davis.

49.19 Mr Paul Matthews. He was employed throughout the relevant period as a Warehouse Operative at Magor DC, doing assembly for about 60% of his time, and as a Trainer for the rest of the time, giving training on various things including the operation of fork lift trucks, health and safety, and assembly. He gave evidence on behalf of the respondent. He did so on 19 April 2023. His evidence related to the work done by the following comparators: Mr Wayne Jones, Mr Ernest Davis, Mr Martin Hornak and Mr Vlastimil Macko.

49.20 Mr Vlastimil Macko. He worked as a Warehouse Operative at Thurrock DC throughout the relevant period. He gave evidence (through an interpreter of the Slovak language) on behalf of the respondent on 20 April 2023.

49.21 Mr Clive Pilley. He was employed as a Night Shift Team Manager at Thurrock DC from the start of the relevant period until 2014. He gave evidence on behalf of the respondent about the work done by Mr Macko and Mr Hornak. Mr Pilley gave evidence on 21 April 2023.

49.22 Mr Ernest Davis. He was employed by the respondent as a Warehouse Operative at Magor DC throughout the relevant period, working nights. He occasionally worked during that period at an adjacent DC operated by the respondent, Magor Trunk DC. He gave evidence on behalf of the respondent during the morning of 24 April 2023.

49.23 Mr David Jonathan Todd (known as “John”). He worked as a Checker at the Hinckley DC throughout the relevant period. He was a comparator. He gave evidence on behalf of the respondent. He did so in the afternoon of 24 April 2023 and during the morning of 25 April 2023.

49.24 Mr Anthony White. He was employed by the respondent as a Shift Manager at Hinckley DC from 2015 until the end of the relevant period. He gave evidence on behalf of the respondent in relation to the work done by Mr Todd. He gave that evidence in the afternoon of 25 April and the first part of the morning of 26 April 2023 after we had resumed the hearing at 11.00am with the parties present.

49.25 Mr Kevin Bates. He gave evidence for the rest of 26 April and during the morning of 27 April 2023. He did so on behalf of the respondent. He was a manager at Hinckley DC. His evidence related to the work done by Mr Shawn Pratt and Mr Robert Pustula, both of whom were comparators. Case Numbers: 3304495/2018 & others 36

49.26 Mr Robert Pustula. He worked at Hinckley DC during the relevant period as a Warehouse Operative. He gave evidence (through an interpreter of the Polish language) on behalf of the respondent in the afternoon of 27 April and in the morning of 28 April 2023.

49.27 Mr Martin Hornak. He worked at Thurrock DC during the whole of the relevant period as a Warehouse Operative. He gave evidence (through an interpreter of the Slovak language) on behalf of the respondent during the afternoon of 28 April 2023 and during the morning of 2 May 2023.

49.28 Mr Shawn Pratt. He was employed as a Warehouse Operative (Nights) at Hinckley DC throughout the relevant period. He gave evidence on behalf of the respondent for most of 2 May 2023 and the first part of 3 May 2023.

49.29 Mr Richard Yates. He was employed as a Warehouse Trainer and an Assembly Trainer at Hinckley DC in the relevant period up to 2016 when he became a full-time People & Safety Trainer there. He gave evidence on behalf of the respondent in the middle of 3 May 2023. His evidence related to the work done by Mr Pratt and Mr Pustula.

49.30 Mr Christopher Bumpass. He worked at Didcot DC as an Operative Team Manager during the relevant period. He gave evidence on behalf of the respondent about the work done by Mr Leslie Young, who was a comparator. Mr Bumpass gave evidence in the afternoon of 3 May and during the morning of 4 May 2023.

49.31 Mr Leslie Young. He gave evidence on behalf of the respondent during the afternoon of 4 May and the morning of 5 May 2023. He worked at Didcot throughout the relevant period principally as a forklift truck driver but also doing assembly.

49.32 Mr Carl State. He gave evidence on behalf of the respondent for part of the morning and all of the afternoon of 5 May 2023. He worked during the relevant period at Didcot DC. For part of that period, he worked as a forklift truck instructor and examiner and as a trainer, training staff on assembly. His evidence related to the work done by Mr Young. Some salient aspects of the evidence before us and our findings of fact on those salient aspects (1) Time pressures imposed by the respondent on the claimants

[50]When being cross-examined, Mr Gleiwitz said that “We generally expect people to be working around 30 to 40 minutes a cage”, but that it depended on the circumstances and the person. He clarified that that was per cage of what the respondent called “ambient” goods, so that what he was saying was that the Case Numbers: 3304495/2018 & others 37 respondent expected shop floor staff to be able to put out on display the contents of a cage containing ambient goods within a period of 30-40 minutes. That was contrary to the stance which had before then been taken by the respondent’s counsel in their cross-examination of the sample claimants (and, as shown by that which was said in paragraph 25(1) and (5) of the opening skeleton argument for the Leigh Day claimants, which we have set out in paragraph 28 above, generally), which was that they were under no particular time pressures. While the latter proposition was difficult to accept or understand, so that (as we, through EJ Hyams, pointed out at the time) it had an air of unreality about it, this evidence of Mr Gleiwitz was a new statement on behalf of the respondent about a matter which was of considerable importance. It was to the effect that the sample claimants were indeed under time pressures when doing at least one major part of their work.

[51]In addition, we record here that Mr Richardson said on the fourth day of the hearing before us, i.e. 10 March 2023, at internal page 27 of the transcript for that day: “Yeah, I can recollect the team being asked to speed up. The delivery needed to be on a bit quicker. There was a lot to be done.”

[52]Mr Richardson then acknowledged that the staff of which Mrs Worthington was a part were not able to “pace” for themselves, i.e. determine for themselves how fast they would do, their work, and he said that if they were not moving quickly enough then he, for example, would tell them so. In addition, Mr Richardson said that the target time for getting a dairy delivery out on the shop floor was 11.00am. We understood that to be a target to get out onto the shop floor all of the dairy and related “fresh” items which had been delivered that day for which there was at that time room in the chilled cabinets on the shop floor.

[53]There was too a document copied at page 109 of the EVJD for Mrs Cannon, which Ms Humphreys, her line manager, accepted she (Ms Humphreys) had created and put on the Watford Extra noticeboard. That had the following text in it. “F & F Productivity Timings – Delivery & pre-sort: Productivity Timings In order to manage workload please use the timings below as a guide for how long it will take colleagues to carry out certain tasks and routines. Boxed delivery – 35 minutes a dollie Average delivery size Average time to complete 5 dollies 3 hours 10 dollies 5 hours Case Numbers: 3304495/2018 & others 38 15 dollies 8 hours 20 dollies 10 hours 25 dollies 13 hours Hanging cage delivery – 23 minutes a cage Average delivery size Average time to complete 5 cages 2 hours 10 cages 4 hours 15 cages 6 hours 20 cages 8 hours 25 cages 10 hours Did you know: Boxed blue tray deliveries currently make up around 80% of your total delivery. Hanging cage deliveries make up approximately 20% of your total delivery throughout the week. If you have more than one colleague working delivery the timings should reduce. For example, two colleagues working 5 dollies should take 1.5 hours whereas one colleague working 5 dollies would take 3 hours on average. RFID Delivery receive scan Average delivery size Average time to complete 5 dollies 2 minutes 30 seconds 10 dollies 5 minutes 20 dollies 10 minutes If your portals do not work then make sure that you are completing the delivery receive scan function on the RFID handheld. It should take you 30 seconds per dollie to do so this.”

[54]It was put to Mrs Cannon in cross-examination (recorded at line 13 of page 11 of the transcript for 30 March 2023) that “there was no pressure from Tesco for [her] to work at anything other than a pace that was comfortable to [her]”. She agreed Case Numbers: 3304495/2018 & others 39 that she had not been taken to task expressly by Ms Humphreys in regard to the speed at which she worked but said (as recorded at line 15 on page 14 of that transcript) that she thought that “questions would have been asked” if she had not finished the task which was referred to by the parties as “availability” as “that might have been a disappointment” to her line manager. There was then this exchange. “Q. Okay. But you were never challenged by your manager about not doing availability , were you? A. I was never challenged by my manager. I did a really good job to the best of my ability , and if that .... if that meant missing a break and staying on, then I would do that for her. Q. Okay. Would you accept that in fact the only time your manager would even question a position was if there really was a lot of work that she’d left for somebody and it hadn’t been done? A. I’ve never been in that position to have anything questioned, so I couldn’t really tell you. And I don’t know of anyone that has been in that position. Q. Okay. A. But I never, ever wanted to be in that position, purely the fact that I work very fast, very hard and .... and I do the best I can, and I know what the standards are on our department. So I’m .... I’m trying to achieve those standards every time I’m in, and it can be very, very challenging on our department.”

[55]Given the evidence to which we refer in the preceding paragraphs (50-54) above, and given the fact that it was highly unlikely that an employer such as the respondent would impose targets on its distribution centre (or central warehousing) staff but not expect its shop floor staff to work under any kind of time pressures, we came to the firm conclusions that55.1 the claimants were put under time pressures in the same way that the respondent’s DC staff were put under time pressures, and

55.2 the only material difference in this regard between the two sets of staff was the fact that some of the DC staff wore arm-mounted computers or terminals about which we heard much oral evidence, as a result of which it was possible to monitor more effectively their use of time. (2) The relevance of some of the evidence adduced by the respondent, including the statistics which were included in the respondent’s witnesses’ witness statements Case Numbers: 3304495/2018 & others 40

[56]A second salient feature of the evidence before us was that on many occasions during the cross-examinations of the respondent’s witnesses, it became clear that they had attested to things about which they had no knowledge, such as statistics or percentages about relevant things. The Leigh Day claimants referred to this as “an exercise in ventriloquism”. That was done in the following passage of their written closing submissions: ‘24. ... Rather than rely on the evidence of the job-holders, the Respondent called 12 DC Management witnesses and 10 Store Management witnesses (a further witness, who had never met the Claimant his statement purported to speak to, was not called). It will not have escaped the Tribunal’s notice that whereas the Store Management witnesses were keen to diminish the work (and the value of the work) done by the Claimants, the DC Management witnesses, by contrast, were there to talk up the jobs done by the Comparators. Mr Roux came to talk about the risks of working in DCs, no-one came to talk about the risks of working in stores. Many paragraphs of the witness statements simply asserted that the EVJDs were accurate: something which the witnesses frequently had to admit in cross-examination was not correct. Some witnesses were ultimately driven to admit that the language in their witness statements was designed to give the Comparator tasks a spurious complexity (see for example {Day24/125:5}, Ernest Davis agrees that to say counting between 5 and 15 items requires “a heightened and sustained focus” was “overegging” it. It is unlikely that that phraseology originated with him); others that they had little direct knowledge of what the Claimants were doing whilst working on shift (see for example Catrina Jemmett’s evidence at {Day13/58:2} and {Day13/63:21} or Christopher Gleiwitz’s evidence at {Day19/44:23} to {Day19/45:6}); and still others that the figures they were attesting to were not ones they could verify from their own knowledge (Mr Black’s evidence being the standout example, but see also, for instance Mr Hornak on the question of how many times he got on or off his LLOP). 25. These were not occasional failures to come up to proof, there was a consistent pattern. The Tribunal may find it difficult to avoid the conclusion that much of the Respondent’s witness evidence was an exercise in ventriloquism. One very clear example was Mr Black who had been put forward in a manner which, putting it at its lowest, left the impression that he had performed analyses of data that he had not in fact performed (see {B/3/15} 45 and {Day2/65:14}). On it becoming clear that the Respondent would have to acknowledge that it was lawyers and not Mr Black who had done the relevant analysis, he was made to “check their homework” in an effort to give him some sort of standing as a relevant witness. Even then it was first suggested that he had checked everything {Day33/135:15} only for him to have later to accept that he had not.’ Case Numbers: 3304495/2018 & others 41

[57]There might be thought to be in that passage a degree of inconsistency with the submission that a sample claimant’s or a comparator’s job should be determined by us by reference in part, if not in large part, to the respondent’s training documents or documents recording safe ways of doing things. We refer further to that submission in paragraph 76 below. As we record there, that submission was advanced in written closing submissions most clearly by the Harcus claimants, but it was advanced also on behalf of the Leigh Day claimants in oral submissions. It had in fact been foreshadowed by what Mr Jones said at the hearing of 19 December 2022 which led to the order set out in paragraph 84 below, as recorded in paragraph 10 of EJ Hyams’ record of that hearing. The possible inconsistency to which we refer in the first sentence of this paragraph arose from the fact that if the training materials were paramount then by implication what a manager was able to say about the work in fact done by a sample claimant or a comparator was of significantly less importance than what was in those materials. However, taken in isolation, what was said in paragraphs 24 and 25 of the Leigh Day claimants’ written closing submissions was entirely apt, and we accepted it. We concluded that the respondent’s legal representatives had compiled evidence at least in part with a view to supporting the respondent’s intended submissions to this tribunal, and then asked the witnesses who were called to give evidence to us to approve a witness statement (or statements) which was (or were) intended to support those submissions. Those witnesses had then felt obliged if at all possible to agree to those statements, and in at least some cases they had not read them properly before doing so.

[58]The most important factual issue arising from what the Leigh Day claimants said was to an extent an “exercise in ventriloquism” was whether or not we should accept the statistics on which the respondent relied (and those statistics changed during the hearing when the respondent’s legal team and those providing instructions to it provided new statistics via spreadsheets). We ourselves raised the question whether or not there was any evidential basis for those statistics. No witness was called to attest to the statistics by saying(1) that they had been drawn from the respondent’s computer network and databases, and

(2) in what way they had been extracted from that network and those databases. In the end, we were forced to conclude that there was no evidential basis for the statistics.

[59]However, the respondent did, in documents such as that which was at G/363, which was a 41-page letter dated 1 May 2023 from Herbert Smith Freehills, solicitors representing the respondent, explain (albeit only through those solicitors) the manner in which the statistics had been created. As we ourselves (through EJ Hyams) observed during oral submissions, rule 41 of the Employment Tribunals Rules of Procedure 2013 permits a degree of latitude in relation to the admission of evidence in an employment tribunal. That rule is in these terms. “The Tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective. The following rules do not restrict that Case Numbers: 3304495/2018 & others 42 general power. The Tribunal shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.”

[60]However, as EJ Hyams also pointed out, we had to act lawfully. When reflecting on this issue, we concluded that there had been nothing to stop the respondent from adducing evidence from one or more witnesses about the manner in which it had extracted the statistical evidence on which it relied from its network databases. Rather, we thought, it would have been fairly straightforward to have done that. If it had been done, then the claimants could have asked questions about the manner in which the statistics were derived and (if appropriate) compiled. It was also the case that the respondent had been somewhat selective in its approach to statistical evidence (if we can call it “evidence”), since, as recorded by the Leigh Day claimants in paragraph 24 of their written closing submissions, which we have set out in paragraph 56 above, the respondent had called a witness to put before us statistics related to accidents in DCs but no witness to do the same thing relating to accidents in stores.

[61]After much careful thought, we initially concluded that we should admit the statistics on which the respondent relied at the end of the hearing before us, but treat them with considerable caution, and accord to them only such weight as appeared to us to be appropriate. However, when we were deliberating on the factual issues relating to the work of the first sample claimant from whom we heard evidence, Mrs Worthington, we came to the conclusion that we could not fairly accept any of those statistics, or alternatively that in the circumstance that the claimants had not been able to challenge in any way the manner in which those statistics had been derived and formulated, they did not constitute reliable evidence and for that reason alone we should not admit them.

[62]Nevertheless, given the fact that we have (as we have stated in our above judgment, for the reasons stated in paragraphs 89-93 below) concluded that the parties must reformulate their cases on the factual issues before us, we have concluded that if the statistics are relevant then the respondent will be able to put new oral evidence before us about those statistics and the claimants will be able (unless they accept that new evidence) to cross-examine the giver(s) of that new oral evidence. We add, however, that if there are in existence statistics which were compiled or created by the respondent for purposes other than those of this litigation, then those statistics are likely to speak for themselves. We note in this regard that there was already in the papers before us at the time when we arrived at our above judgment at least one document which contained some potentially relevant statistics relating to accidents in stores and which appeared to have been created otherwise than for the purposes of this litigation. That document was drawn to our attention by the Leigh Day claimants. It was at C7/9. (3) A salient inconsistency in the respondent’s case Case Numbers: 3304495/2018 & others 43

[63]Finally here, we record that there was at least one salient example of a failure by the respondent to see an inconsistency in its case which could be regarded as resulting from a focus on the intended submissions of the respondent rather than on the facts. That example is that the sample claimants were repeatedly crossexamined on the basis that the cages which contained the goods which they were putting out on the shop floor were only rarely dangerous in that they only rarely had faults which might scratch the user if the user were taking proper care (for example it was said by Mr Purchase to Mrs Worthington on 9 March 2023, as recorded in lines 3-4 on page 90 of the transcript for that day, that “[if she had been] taking proper care [then she] could have avoided that, couldn’t [she]?”), but the evidence of the respondent about those cages when they were in the DC and being filled with the goods which were subsequently delivered to the respondent’s stores was (as stated most clearly in paragraph 6.183 of the EVJD for Mr Hornak and paragraphs 6.194 and 6.195 of the EVJD for Mr Pratt) that they had faults which “sometimes … caused lacerations” to the user’s hands. That fact appeared to have escaped the notice of the respondent’s legal team. Submissions which we heard on the manner in which we should make our

findings

[64]One major issue on which we heard submissions was to what extent we should state in any document or documents recording our determinations those things on which the parties agreed. Initially, in part because we could see that we were (assuming that the parties had advanced their cases on the facts in an appropriate way) going to have to determine a large number of factual disputes, even if we confined our stated conclusions only to those things that we concluded were in fact relevant rather than just ones which might reasonably be regarded as relevant, we were inclined not to record those things which were agreed. However, after we were told that the parties might (and were likely to) spend a very long time disputing the manner in which those things which were agreed should be put before the independent experts, and after starting to record our conclusions on the relevant facts relating to individual employees, we concluded that we should record those things that were agreed in the same documents as those in which we recorded our conclusions on those facts. Having then taken a number of days to come to conclusions on the factual issues put before us in relation to the job of Mrs Worthington and having(1) started to do the same in regard to the job of Ms Williams and

(2) looked at the Harcus claimants’ submissions in regard to the job of Ms Thompson, we came to the conclusions stated in our above judgment. One of the things which should result from the parties complying with the orders which we have described in paragraphs 6 and 7 of our above judgment is that there will be no need for us to record the agreed facts. Our conclusions on points of principle

facts.

[65]We now state our conclusions on the points of principle which led to that judgment. Case Numbers: 3304495/2018 & others 44 Relevance

[66]We concluded that we had to decide what was relevant at this stage, and that if we merely decided what “might reasonably be relevant for the purposes of the later assessment of value by the IEs or party experts”, as the respondent urged on us (as we record in paragraph 29 above; that position was maintained during closing submissions), then we would not be doing the job which the legislative framework, and the interests of justice, required of us. That was almost selfevident, but if there were any doubt about it, it was removed by rule 6(3) of the EV Rules (which we have set out in paragraph 30 above), which showed in our judgment that(a) we had to decide what was relevant, and

(b) if the independent experts thought that we had failed to make a finding on or in relation to something relevant, then they could ask us to make a finding on or in relation to that thing. Relevance of potential consequences for an employee if he or she did not do something

[67]Time and again, it was put on behalf of the respondent in cross-examination to sample claimants that there was no suggestion of a negative (meaning disciplinary) consequence for them if they did not do something and then it was said in closing submissions that the absence of such a consequence meant that doing that thing was not part of a claimant’s job. For example, in regard to one of the respondent’s critical policies, which was known as its “Cold Chain” policy, this was said in the row numbered 67 in the ROD relating to Mrs Worthington: “There would be no consequences for the JH if the 20 minute guidance was exceeded.”

[68]However, there was nothing in the case law to support the proposition that there had to be a consequence for an employee arising from a failure to do something before it could be part of the employee’s job for equal pay purposes to do that thing. Rather, the case law showed the opposite: see paragraphs 11-26 above. The opening words of paragraph 32 of Lavender J’s judgment in Beal (which we have set out in paragraph 19 above) were the most clear authority for the proposition that the absence of a potential consequence for not doing something was irrelevant to the determination of whether doing that thing was part of the employee’s job for equal pay purposes.

[69]For the avoidance of doubt, we saw the reference in the part of Lord Denning’s judgment which we have set out in paragraph 13 above to consequences as a reference to the consequences to the employer of a decision made by an employee, rather than to the disciplinary consequences to the employee. Measures of performance and working conditions

[70]Much reliance was placed by the respondent on the fact that it had a performance management regime in place at its DCs which entailed the application of performance indicators which were derived from the use of information and Case Numbers: 3304495/2018 & others 45 communication technology by the comparators. That regime was the subject of the witness statement and oral evidence of Mr French. In paragraph 4 of his witness statement, he said that he had been ‘asked to address the Claimants’ proposed description of the Performance Index (“PI”) i.e. the measure used by Tesco DCs to measure the productivity of its warehouse operatives, including the comparators.’ That measure was referred to by the respondent as the “PI rate”. The respondent applied different PI rates to different sets of employees, and it was Mr French’s evidence (which we accepted in this regard) that those rates were measures of effort and were determined in part by reference to the physical layout and conditions of the workplace in question.

[71]We posed the question of the relevance of those rates, and we heard submissions on that issue. After careful deliberation, we concluded that those rates were not irrelevant, since they were (for the reasons which we give in the following paragraph below) relevant to the time pressures on the comparators, and that at this stage, namely that of a stage 2 hearing, all we could do was to record our conclusions on(1) how those rates were decided on,

(2) when they were relied on by the respondent in regard to each comparator (since the PI rate regime was not applied by the respondent to all of the tasks entrusted to the comparators), and

(3) what those rates were in regard to each comparator. We also concluded, however, that the respondent’s training documents relating to the work done by the sample claimants might (for the reasons which we given in paragraph 75 onwards below) be relevant in determining what time pressures were imposed on those claimants, such as in relation to the “cold chain” to which we refer in paragraph 67 above.

[72]We concluded that the time pressures on sample claimants and comparators were relevant because the “demands” of a job within the meaning of section 65(6) of the EqA 2010 (which we have set out in paragraph 10 above) in our view had to be determined in part by reference to72.1 physical conditions such as heat or cold,

72.2 dangers, albeit as mitigated by the taking of measures to reduce or eliminate those dangers, and

72.3 pressures of time.

[73]We say “in part” not least because section 65(6) itself refers to “factors such as effort, skill and decision-making” (our underlining). However, we concluded that the three factors which we have set out in the preceding paragraph above would be relevant in determining what were the demands of the job in question.

[74]Contrary to the respondent’s submissions, what would not in our view be relevant at this stage was the physical location of the workplace as such, for example whether it was in a peaceful residential neighbourhood or an isolated industrial park. Nor would the relationships which the job-holder had with his or her colleagues be relevant at this stage. Case Numbers: 3304495/2018 & others 46 Training documents and manuals

[75]Before considering the parties’ contentions on the factual issues before us, we came to a provisional conclusion that the respondent’s training documents and related documents such as manuals (including safety manuals) or sets of instructions about how to carry out tasks safely were likely to be the best evidence of what the job in each case entailed. That was because of the case law to which we refer in paragraphs 11-26 above. It is true that (as it was emphasised to us by Mr Epstein in oral closing submissions) Shields concerned a claim for equal pay for like work, and not work of equal value, but in our judgment (for the reasons which we give in paragraph 12 above) Shields is authority for the proposition that in determining whether work was “equal work” within the meaning of section 65(1) of the EqA 2010, the question is what was the job of each person: not what was it that they did minute by minute when they were at work. That which they did which went beyond their employer’s express written requirements might (given what was said in paragraph 32 of the judgment of Lavender J in Beal, which we have set out in paragraph 19 above, and what Bridge LJ said in Shields which we have set out in paragraph 18 above) have become part of their job for the purposes of an equal pay claim, but that did not in any way detract from the proposition that the best way to see what was an employee’s job for those purposes was to see how the employer required the employee to work. That in turn could at least normally best be seen by reference to what was in the employer’s training documents and (assuming that they were not a simple repetition of what was in the training documents) its instructions on how to do the things which the employee did, or was contractually required to do. Those documents and instructions would be likely to take a number of forms, and their precise format would not be important.

[76]Having come to that initial conclusion, we carried out the exercise to which we refer in paragraph 89 below. We then came to a provisional conclusion that, given our conclusion stated in the preceding paragraph above, the parties had prepared and pursued their cases on the facts in a fundamentally erroneous way. We then reviewed the submissions of the parties about that issue. We were then reminded that the respondent’s written closing submissions reflected at least broadly, and in some cases stated precisely, their stance that it was only if a claimant had actually received training of a certain sort that we could take into account the documents recording or imparting that training. We were also reminded of the Harcus claimants’ submission in paragraphs 215 and 216 of their written closing submissions, which was this. “215. Second, information and evidence about training is relevant not because of the training per se, but because the training materials are excellent evidence of:a. what the jobholders actually did;

b. how they did it; and Case Numbers: 3304495/2018 & others 47

c. what the Respondent required/expected of the jobholders. 216. This second purpose is very important. In many instances, the training materials provide objective contemporaneous evidence of what the Respondent expected of its employees and, in most instances, the Tribunal may find that it can easily be satisfied that the jobholders were required to do their jobs in the way in which the training materials show, unless there is some specific reason to conclude that they did not. The training materials are evidence of what was required by the Respondent, even if the jobholders did not always do precisely what they had been trained to do. Moreover, the training materials are good evidence of what the jobholders did in fact do. It is a reasonable inference that, unless there is particular reason to doubt it, the jobholders did their jobs as they had been trained to do them.”

[77]We saw also that in that skeleton argument, this was said. ‘Aspirational’ training materials 228. One of the Respondent’s surprising submissions during the Stage 2 Hearing was that the training material in relation to the Claimants’ roles was merely ‘aspirational’. For example, the Respondent said that:a. per Mr Purchase KC, ‘A lot of training and policy material is setting out objectives or aspirations’ [reference given]; and

b. per Mr Epstein KC, ‘Many of these training documents are aspirational and they don’t reflect what was actually done in practice’. [Reference given] 229. It was not entirely clear what the Respondent meant by that, but the submission always seemed to be aimed at trying to persuade the Tribunal that the Tribunal should ‘water down’ its findings in relation to the Claimants’ ‘work’ and not conclude that the training materials described what the Claimants did and/or were required to do. 230. The submission is surprising (and wrong) for a number of reasons. a. First, it is entirely unsupported by any evidence, and is contrary to the evidence which the Tribunal has seen. The Respondent has not adduced a single bit of evidence, either in documentary form or from any of the tens of thousands of employees whom it could have chosen to call to give evidence, that Tesco employees were trained to a standard at which they were not expected to perform, or that the training contained anything other Case Numbers: 3304495/2018 & others 48 than what management actually wanted employees to do. Instead, the evidence which the Tribunal has heard is that the Respondent (as one would expect) provided training to its employees using its training materials, and trained employees to do what was in the training materials in the expectation that the employees should do what they had been trained to do when they were doing their jobs. For example,: i. Mr Bates acknowledged that loaders have to consider sticking to the rules they’ve been trained in to manage risk [reference given] and ii. Mr Pustula accepted that he followed his training, and therefore would not have twisted his body. [Reference given] b. Second, it is implausible that the Respondent’s assertion could be correct. It would fly in the face of any commercial good sense for the Respondent to go to the time, expense and hassle of producing training materials which showed anything other than what the Respondent expected its employees to do and how the Respondent expected its employees to do it. Moreover, the Respondent appears to accept that all the training materials were materials which were used in training various employees, and so it would make even less sense for the Respondent actually to be providing training on anything other than that which the Respondent expected the employees to do.

c. Third, the use of the word ‘aspirational’ / ‘aspirations’ by both of the Respondent’s leading counsel on separate occasions suggests that this is a deliberate position which is being taken by their client, rather than an ‘off the cuff’ remark. It is difficult to understand how the Respondent feels able to advance that position in circumstances where there is no evidential basis for it at all. 231. The Tribunal should reject completely the suggestion that the contents of the training materials were merely ‘aspirational’ and/or should be disregarded by the Tribunal for any other reason The training materials assist the Tribunal in the three ways identified at paragraph 215 above: a. they are evidence of what the job holders are likely to have done and how they are likely to have done it, as a matter of fact; b. they are evidence of what was required of the job holders by the Respondent, even if the job holders did not always do precisely what they had been trained to do; and Case Numbers: 3304495/2018 & others 49 c. they are evidence of some of the skills which were necessary in order to do the jobs.”

[78]Having by then (as we describe in paragraph 89 below) spent over a week determining the factual disputes relating to the job of Mrs Worthington, we came to the clear conclusion that those submissions of the Harcus claimants were entirely correct.

[79]We record here too that while the respondent made separate submissions in relation to the training which each sample claimant had received, that is to say submissions(1) about what the evidence was in that regard and

(2) to the effect that we should make findings of fact about precisely what training the sample claimants actually received, those submissions were in our view based on a fundamentally flawed proposition. That proposition was that it was necessary for the independent experts to know precisely what training the respondent had actually provided to (or arranged to be provided to) the sample claimants. That proposition was asserted to have been soundly based on the fact that the independent experts had here stated a series of factors which they were proposing (they called them “provisional factors”: see page G/11/3) to apply when assessing the demands within the meaning of section 65(6) of the EqA 2010 which had been placed on the sample claimants and their comparators during the relevant period, and that one of them was this (at G/11/4): “Factor 2. Experience – Training and Education required. Three elements are considered under this factor – experience required, formal qualifications as indicators of the training/education required and the requirement to enhance the knowledge base. It should be noted that is experience [sic] is not just a matter of recording the years etc. we do need to know the sort of experience required and how it is relevant to the job. Qualifications/educational requirements should be treated with care – essentially, we need to know if there are any mandatory requirements such as a driving licence or food hygiene certificate. Other qualifications should be recorded with a comment as to whether they are desirable, essential, expected, etc. Enhancement of the knowledge base deals with the requirement for on going training or updating the knowledge etc. This may include attendance at courses to familiarise the job holder with changes in technology, new techniques or methods of working.”

[80]We saw that that factor referred to what was “required” for the job by way of(1) experience and

(2) formal qualifications, but only “as indicators of the training/education required and the requirement to enhance the knowledge base”. We saw too that while “mandatory requirements” by way of “qualifications” Case Numbers: 3304495/2018 & others 50 or “educational requirements” were implied by the experts to be of central importance in applying this factor, there was a need to refer to “other qualifications”, which might or might not be merely “desirable”. In addition, the experts were there saying that all “Qualifications/educational requirements should be treated with care”.

[81]In any event, the training which the sample claimants received while they were employed by the respondent could in our view only rarely be relevant to “mandatory requirements” by way of “qualifications” or “educational requirements”. The only training which could be material in that regard was that which related to, for example, the driving of a forklift truck or a heavy goods vehicle. However, the key factor then would be the formal qualification or certificate which resulted from the training, from which the required training could be deduced. That was because while the precise training which the employee received would be evidence of what the job required by way of training and experience, the formal qualification or certificate would in all probability be the best evidence of what the job required in that regard.

[82]Such training as the sample claimants received during their employment by the respondent which related to the jobs which those claimants did during the relevant period was going to be relevant to show what the jobs were, as we say in paragraph 75 above, but whether or not the sample claimants actually received all of the training of which there was evidence in the respondent’s records and which related to those jobs was, for the reasons given in that paragraph, not determinative of what the jobs were for present purposes. Far from it. However, there was much documentary material in the hearing bundle showing what training the respondents had given to persons doing the jobs which the sample claimants did. It was referred to by the respondent in its closing submissions only with a view to showing wherever possible that the sample claimants had not received that training.

[83]The respondent’s separate submissions on the training which the sample claimants had (or as the case may be had not) received were in fact remarkably long: for example the respondent’s submissions on the training which Mrs Worthington had or had not received and related matters were 80 pages long, albeit that they were in tabular form much of which consisted of text in red font and struck through to show that the respondent was contending that that text should not be included in our document recording what we regarded as the relevant facts on which the independent experts should base their opinion. That length had to be seen in the light of the fact that the respondent’s submissions relating to the facts which we should find about the job of Mrs Worthington (which were also in tabular form) were 139 pages long, and there were within those pages a number of blank rows. (There was also a considerable amount of repetition, albeit that some of that repetition was the result of repetition on the part of the legal team acting for the sample claimants in the EVJDs, to which repetition the respondent was responding.) Case Numbers: 3304495/2018 & others 51

[84]The claimants’ closing submissions did not refer to all (or even the majority) of the documentary evidence relating to the training which the respondent had given to employees doing the same job as the sample claimants. That was almost certainly because of the volume of that evidence and the difficulty for all parties of dealing with each and every factual dispute before us, whether in crossexamination or closing submissions. At least some of that documentary evidence had in fact been provided by the respondent only as a result of an order(1) made by EJ Hyams at the request of the claimants at the final preliminary hearing before the stage 2 hearing which we conducted and

(2) recorded in writing in a document which was sent to the parties on 4 January 2023. That order was in these terms: “2 The respondent must by ... 4.00pm on Monday 16 January 2023,

2.1 state what training modules it would have expected a staff member in each sample claimant’s position to have undertaken up to and during the Relevant Period of 18 February 2012 – 31 August 2018, and

2.2 provide copies of those modules if they have not already been provided to the claimants.”

[85]Thus, there was in the bundle before us a substantial number of documents which were evidence of the training which the respondent would have expected to be given to persons doing the jobs of the sample claimants, but we had not by the end of the oral hearing been referred specifically by any party (either in oral submissions or in the documents which we had by then read) to some of those documents. We, however, made it clear through EJ Hyams during the hearing that we regarded all of those documents as being potentially relevant at least to the question of what was the job of each sample claimant, and(1) no party asserted that we should not refer ourselves to those documents when deliberating, and

(2) while we were making our determinations of the relevant facts, we referred ourselves to all of those documents and not just those to which we had been specifically referred by one or more parties.

[86]In fact, when deliberating and considering with care the provisional factor which we have set out in paragraph 79 above, we realised that those documents would be relevant in addition to the “Enhancement of the knowledge base” to which the independent experts referred in that factor. However, we also concluded that such enhancement would be relevant only to the question of what was “the job” of the relevant person (here the sample claimant in question).

[87]In any event, given our conclusions stated in paragraphs 75-78 above, we saw no good reason to make determinations about precisely what training the sample claimants and their comparators had actually received, with one exception.

[88]That exception was that the question whether an employee had received training would be material if the training had led to a determination (by whomever) that Case Numbers: 3304495/2018 & others 52 the employee was competent to do the thing to which the training related and the respondent would (or could) not permit that thing to be done without such determination. We had in mind in this regard training to be a forklift truck driver. Thus, the question whether a comparator had received that training was material, but we could see no other training in regard to which we would need to make a specific finding of fact of that sort. The way forward

Introduction

[89]After we had come to provisional conclusions on the issues of legal principle to which we refer above (and in particular that which we state, as a firm conclusion, in paragraph 75 above), we started our deliberations on the factual issues which had been put before us. We first carried out a painstaking analysis of the parties’ submissions on the facts relating to Mrs Worthington’s job, and made findings of fact on all of the factual matters which were put in dispute by the parties in that regard. That took over a week, during the course of which we found ourselves looking at a number of points for, and finding, training documents of the sort to which we refer in paragraph 5 of our above judgment to which the parties had not referred but which were relevant to the job of Mrs Worthington. (We should say, however, that there was a considerable amount of overlap and repetition even in the documents of which there were already copies before us, and at least some of the documents to which we referred ourselves added little or nothing to those to which the Leigh Day claimants had already referred in their closing submissions.) We then turned to the parties’ submissions on the facts relating to Ms Williams’ job. We were dismayed by their length and complexity, especially, but not only, when it was borne in mind that her work was principally that of(1) replenishment and

(2) operating a checkout. We then looked at the Harcus claimants’ submissions on the job of Ms Thompson. We saw that they had not (despite their written submissions, to which we refer in paragraphs 76 and 77 above) referred there to very many of the respondent’s training documents, although we did see that it was recorded in the respondent’s closing submissions that the Harcus claimants had in communications with the respondent about the job of Ms Thompson relied on many training documents of the sort to which we refer in paragraph 5 of our above judgment. That led us to re-appraise the manner in which the parties had put their cases to us. Having done so, we came to the conclusion (to which we came reluctantly, and initially hesitantly but finally with certainty) that all parties had erred in the manner in which they had advanced their cases on the factual issues before us. We concluded that the respondent had prepared its case on the fundamentally erroneous basis recorded in paragraph 3 of our above judgment and that to the extent that the claimants had approached the factual issues in the same way, they too had erred. However, certainly by the time of closing submissions, the claimants were relying on the training materials which they had by that time been able to identify as being material to the jobs done by the sample claimants and their comparators, and both sets of claimants were saying to us that those training Case Numbers: 3304495/2018 & others 53 materials were relevant in that they were at least good evidence of what those jobs were. Possibly incomplete disclosure so far

[90]In the course of our deliberations regarding the job of Mrs Worthington we referred ourselves to the document at C7/143. We saw that much of that document was not at that tab, but our searches suggested that it had been sliced up and put into the bundle as a series of documents. That possibility was apparent from the fact that at least the documents at C7/133, C/147 and C7/149 appeared to be part of the document the first part of which was at C7/143.

[91]In any event, we concluded that the respondent might not have been able to locate (and had probably not been ordered to disclose: see the final part of this paragraph) all of the training documents to which we refer in paragraph 5 of our above judgment. The respondent’s position had been that only documents relating to training which the claimants could show had been given to them should be taken into account, and given that the respondent’s written closing submissions stated (in paragraph 286a) that the respondent was ‘unable to say what training would have been given to “a staff member in the sample claimants’ positions”, only “what additional training was available and therefore might have been given to a different colleague doing the sample claimant’s role with the sample claimant’s job history”’, it occurred to us that the respondent should be required to make a further search, carried out in the light of our conclusion stated in paragraph 75 above, for all documents of the sort to which we refer in paragraph 5 of our above judgment, and to disclose the results of that search in so far as the documents had not already been disclosed. We add here for the avoidance of doubt that the order which EJ Hyams made as recorded in paragraph 84 above was not as wide as the order which we have concluded should now be made, as the order set out in paragraph 84 above referred only to “training modules”. The documents which should now be searched for and disclosed include for example (and we refer to this purely as an example; it is intended in no way to limit the breadth of the search) “safe systems of work”, that is to say any documents recording safe ways of doing the things which the sample claimants and their comparators were required by the respondent to do as part of their jobs. We emphasise that the form of the document and its title will not be determinative of the question whether it should be disclosed. Rather, it will be the substance of the document that is important. By way of illustration, even a document stating guidance on how to do a task will fall within the scope of the description of a training document for the purposes of paragraph 5 of our above judgment. New orders for the things referred to in rule 4(1)(d) of the EV Rules

[92]We also concluded that we should make the orders which we describe in paragraph 7 of our above judgment. The reason for those orders should be apparent from what we say above, but the form which the new job descriptions should take may not be. We have it in mind that the new job descriptions(1) will Case Numbers: 3304495/2018 & others 54 be such as have been agreed by the parties,

(2) will not include statements of fact which are not about the tasks which the job-holder was required to do, and

(3) will

92.1 state the tasks which the job-holder was required by the respondent to do, including their frequency and the length of time which they would typically have taken that job-holder to do;

92.2 state and append in respect of each such task the documents which (1) record or otherwise are the best evidence of the training, or (2) consist of the training, which a person doing that job would, or as far as the respondent was concerned should, have received; and

92.3 if it is contended that the job-holder carried out that task in a way which differed from the manner shown by that training, state92.3.1 whether that manner was known about by the respondent, and, if so and it was correct to say it,

92.3.2 that the respondent had approved or at least knowingly tolerated that different manner.

[93]We will on 19 (and if necessary 20) July 2023 hear submissions from the parties on the precise terms of the orders that we describe in paragraphs 6 and 7 of our above judgment, and in regard to consequential and related orders. One thing that we ought to say now is that we do not expect all of the documents evidencing or consisting of the training given to a claimant or a comparator to be appended to the agreed job descriptions. Rather, we envisage only enough documents doing those things to be so appended (so that we do not expect there to be any unnecessary repetition in that regard). We add that to the extent that working conditions are material at this (stage 2) stage, then they can be the subject of, or dealt with when complying with, the second and third of the three types of order to which we refer in paragraph 7 of our above judgment. We add too that the factual issues about which the parties disagree will need to be arrived at in the light of our above rulings on the law so far as relevant. Those issues may also need to be framed in the light of any comments made by any of the independent experts at the hearing of 19 and 20 July 2023. Finally, we record that we see a statement within the meaning of rule 4(1)(d)(iii) of the EV Rules as including a statement about things which would, if they had been agreed, have been dealt with in the job description within the meaning of rule 4(1)(d)(i) of those rules. ___________________________________ Employment Judge Hyams Date: 12 July 2023 Sent to the parties on: 12 July 2023 ..................................................................... For Secretary of the Tribunals Case Numbers: 3304495/2018 & others 1 EMPLOYMENT TRIBUNALS Claimants Respondent Ms K Element & others v Tesco Stores Limited Heard at: Watford, in person and by Cloud Video Platform (“CVP”) With the parties present on: 6, 8, 9, 10, 13-17, 20-24, and 28-31 March, 17-21, 24-28 April, 2-5, 15, 16, 23 and 24 May 2023 Without the parties present on: 7 March, 11, 12 and 14 April, 9, 10, 12, 17, 25, 30 and 31 May; 3, 4, 6, 7, and 10 July 2023 Site visits: 22 February 2023 and 13 April 2023 Before: Employment Judge Hyams Members: Mr R Clifton Ms M Harris Additional sitting days without the parties present, spent deliberating: 10 October, 7 and 8 November, 5-6, 12-14 and, 18-20 December 2023 2-4, 9-11, 30 and 31 January, 1, 6-8, and 27-29 February, 5-7, 12-14, 20-22 March, 18, 19, 23-25, 29-30 April, 1, 7-9, 14-16 May, and 4-6 and 11-13 June 2024. Representation (principally): For the claimants represented by Leigh Day: Mr Sean Jones, KC, Mr Andrew Blake, of counsel and Ms Rachel Barrett, of counsel For the claimants represented by Harcus Sinclair: Mr Keith Bryant, KC, and Mr Stephen Butler, of counsel Case Numbers: 3304495/2018 & others 2 For the respondent: Mr Paul Epstein, KC, Mr Matthew Purchase, KC, and Ms Louise Chudleigh, of counsel UNANIMOUS RESERVED JUDGMENT ON THE FACTUAL ISSUES ARISING AT THE STAGE 2 HEARING WHICH OCCURRED ON THE ABOVE DATES The tribunal’s conclusions on the factual issues arising in relation to the question what was the work for the purposes of section 65(6) of the Equal Pay Act 2010 of the six sample claimants and the eight comparators about whose work the tribunal heard evidence at the stage 2 hearing which started on 6 March 2023 are stated in the eight schedules at pages 30-619 below.

deliberations.

[98]The differences between the parties in paragraphs [151-157] (which related only to free cages) were immaterial. What happened in practice did not alter the role of the JH and her work for the purposes of section 65(6) of the EqA 2010. What was important was who decided whether to accept a free cage, and it was the JH’s manager, not the JH. That much was agreed, and was what we would have expected in any event. Promotion ends (“PEs”) [162-171]

[99]The manner in which the JH’s work related to what the respondent called “promotion ends” was stated in(1) C7/159, which was nominally relevant only to Express stores but informative and likely to be accurate for all stores if only in principle, and

(2) C7/350, which was relevant nominally to grocery only, but stated the principles Case Numbers: 3304495/2018 & others 60 clearly. It was clear to us from those documents (in so far as it was not explicit in the disputed part of the EVJD for Mrs Worthington), and we concluded as a finding of fact, that PEs were created by the respondent’s head office merchandising team. C7/248/7 showed that the merchandising plans had to be adhered to strictly.

[100]The differences between the parties on the content of paragraphs [162-171] were material only if, and if so only to the extent that, the respondent’s proposed words implied a difference in the work done by the JH. The respondent proposed the use of the words “looks at” rather than “reads” in paragraph [164]. The implied assertion that there was a difference in practice between the two could not be accepted, and we rejected it. That is because one cannot apply a print-out without paying attention to its content, and whether one referred to that task as “looking at” or “reading” was immaterial, because in our judgment the same amount of attention was required to be paid no matter how one described the mental process.

[101]As for the dispute about paragraph [169], even the evidence of Mr Richardson on this, in paragraph 228 of his first witness statement, was no more than that the JH “would have obtained manager approval before” rearranging PEs and that “The weights of products were considered by the Merchandising team when they created the plans for the PEs.” In this regard, we accepted the JH’s evidence given on day 2, as recorded in the claimants’ closing submissions, which was that the JH was trusted to rearrange products on a PE if in her judgment it was necessary for ease of access for customers, but we also accepted that if she was in doubt then she would ask her manager for guidance or a decision, and that ultimately responsibility for the layout on a PE rested not with the JH but with the respondent’s line manager (subject to being overruled in the unlikely event that the JH’s line manager’s line manager disagreed with the line manager’s judgment). In addition, we concluded from C7/248/7 that the JH was required to adhere to the respondent’s current merchandising plans. We also accepted the evidence of Mr Richardson that the respondent’s head office merchandising team created the PEs and that that team would normally have heavier items at or towards the bottom of a PE. As for what was the work for the purposes of section 65(6), in the light of those findings, we concluded that, since(1) it was in the respondent’s interests for its shop floor staff to use their own judgment in at least some ways, including for example in regard to the best way to resolve customer disputes, and

(2) it was clearly in the respondent’s interests for the JH to exercise her judgment on the layout of a PE, especially when there was an obvious need to rearrange it, the work of the JH included applying her judgment in deciding whether to rearrange a PE, subject to the qualifications that (a) if she was in doubt then she would ask her line manager for a decision on the matter so that she could use her judgment only if there was an obvious problem, and (b) the number of times when there would be a need to rearrange a PE in the way claimed by the JH was on the balance of probabilities very small so that the frequency with which it occurred was minimal. That number was very small because we accepted that it was unlikely that the respondent’s merchandising team would, except on very rare occasions, have put a markedly heavier product at the top of a PE. Case Numbers: 3304495/2018 & others 61

[102]We found the respondent’s objection to the claimants’ version of paragraph [171] to be mistaken. The respondent did not, it appeared, dispute the factual assertion that “the aisle Facings ha[d] no explicit indication that a product [might] also be found on a PE”. Indeed, we inferred from paragraph 230 of Mr Richardson’s first witness statement that he agreed that that was so. So, the JH either had to remember, or check to see, what was on a PE. We could not see a difference between those two things for the purposes of section 65(6) of the EqA 2010. It appeared to us that the effort required was probably the same, although whether it was the same was subject to the view of the IEs. In addition, if the JH remembered what was on a PE then that helped the respondent. In any event, in our view the work for the JH for the purposes of section 65(6) of the EqA 2010 included being aware of what was on the PEs, which meant that she would have to(1) pay attention to what was on the PEs, and

(2) restock them at the same time as restocking a Facing. Out of stock product queries 103 [161] fits here. Distance over which, and doors through which, cages and blue top trolleys were pulled to the shop floor by the JH 104 [84-85] The JH would pull cages filled with products and blue top trolleys loaded with products onto the shop floor. The shortest distance in that regard was about 40 metres, and the maximum distance required to be covered was about 60m. The JH would in doing so pull the cage/blue top trolley through a thick plastic curtain on the inside of the dairy chiller door and then through three doors, two of which were swing doors. [We have amended the words of paragraphs [85-85] to cater for our conclusion on the occasional use by the JH of blue top trolleys, assuming, which as we say in explanation of paragraph 91 above we doubted, that it was material for the purposes of section 65(6) of the EqA 2010.] Returning stock to the chiller 105 [112-116] fit here. Repairing packaging

[106]Paragraphs [214-217] fit here. Storing and recording waste

[107]Paragraphs [265-285] fit here. Our conclusions on the issues in dispute in those paragraphs are as follows. Case Numbers: 3304495/2018 & others 62

[108]We accepted the words contended for by the respondent in relation to paragraph [269], except that we accepted the oral evidence of the JH recorded on page 161 of day 2 that she found items which were not “hers” about once a month. However, the key here was what was her job, and it was in this respect to be alert for items which were not “hers” and needed to be wasted. The number of times when she found them was on that basis irrelevant. If that is wrong, then we have made the necessary finding of fact here.

[109]In regard to paragraph [271], given that the issue here was what was the value of the work of a dairy replenisher, we concluded that the task to which that paragraph related could sufficiently be described without reference to the precise placement of the drain down which waste milk needed to be poured. Having said that, at C7/119/6 it was stated that liquid waste had to be disposed of only in a “foul drain”, which meant the “cleaner’s room”, or a “sink or toilet”. As a result, disposal of liquid waste was required to be done in that way, and that was the proper way to record the JH’s work in this respect.

[110]As for the content of paragraph [272], we accepted the respondent’s proposed additional words. If the JH was not required to be in the chiller to do the work of recording dairy waste, then the fact that she chose to do it there was irrelevant for the purposes of section 65(6) of the EqA 2010. However, the time spent on the task was best recorded in accordance with the oral evidence of the JH, i.e. usually 20 minutes to half an hour but it could take up to 40 minutes. So, the latter figure of 40, and not 30, was apt.

[111]The words of paragraph [285] had to be seen in the light of C7/119, on page 2 of which it was said that “Out of code, damaged and Emergency Product Withdrawals must be separated to ensure accurate waste recording (check signage for correct location).” On the next page there was a diagram of a waste cage showing that “Out of Code Products” and “Damaged Products” were required by the respondent to be kept separately. Milk returns

[112]Paragraphs [286-289] fit here. The dispute in regard to paragraph [286] was about the frequency with which the JH did the task of recording milk returns, on the substance of which we accepted the evidence of Mr Richardson in paragraphs 328- 329 of his first witness statement. That supported the conclusion that the task was done whenever it was most convenient, which was, on the oral evidence of the JH (given on day 2, recorded on page 167 that day’s transcript), which we accepted, on most Sundays and every other Tuesday. Waste disposal [290-292]

[113]The first dispute in regard to paragraph [290] as contested by closing submissions (which was whether or not wasted items were always placed in a plastic bag before Case Numbers: 3304495/2018 & others 63 being put in a waste cage) was probably unnecessary. Assuming that it was material, we resolved it by agreeing with the respondent’s version, which in our judgment best reflected the position as shown by C7/119/2, which showed that some, but not all, products to be thrown away had to be put into bags. This matter was in fact stated by the claimants to be merely an editorial difference.

[114]The evidence of Mr Richardson in regard to the disputed element of paragraph [291] did not relate to the issue of the height of the waste cage, nor how best to describe the way in which the JH put waste in it. We therefore concluded that the height of the cage was 6ft, which meant that if it was a four-sided cage then the JH would have to get the waste over its side, and whether the effort was correctly described as “lifting” or “throwing” must have depended on what was being put in the cage, which was as shown by C7/119/2. However, the next page of that document showed a two-sided cage being used as a waste cage. As a result, assuming that the dispute was material, we resolved it by concluding that the JH “lifted or threw the items, as necessary”. Animal product waste disposal [[293-295]

[115]The dispute in regard to paragraph [293] was resolved by us by reference to C7/119/7, which showed that there was a legal requirement to remove animal byproduct waste “from the store using a controlled process”, as recorded on that page. Thus, the disputed words should be “legal requirements”. We concluded that the words “within Dairy” added nothing to the existing words proposed by the claimants and should not be included in paragraph [293]. Immediate waste disposal [296-298]

[116]Paragraph [298] was the subject of paragraph 148 of the JH’s first witness statement. She there referred to having to take “a hazardous or leaky product, like a jar of casserole mix a customer has dropped on the floor, straight to the bin cage”. That went beyond the content of paragraph [298], which was about damaged glass items only. Given paragraph 148 of the JH’s first witness statement, it was not surprising that Mr Richardson’s response in paragraph 326 of his first witness statement dealt with “products such as leaking packets of raw chicken” as well as broken glass. We saw no good reason to reject the claimants’ proposed words for paragraph [298], which made sense from a practical point of view, so we accepted them on the balance of probabilities, but we concluded that the words of paragraph [296] should be amended to cater for the possibility of product being “hazardous or leaky”. So, the words of paragraph [296] should be these instead: “When the JH identified or was called to any hazardous or leaky product, such as damaged or broken glass or a leaking packet of raw meat, which was around every three months, the JH immediately disposed of it. JH took the product and all broken glass off the shop floor immediately and put it straight into the bin cage.” Case Numbers: 3304495/2018 & others 64 “Safe and legal” checks

[117]Paragraphs [324-330] fit here. The only initially disputed aspect of those paragraphs related to the frequency with which the JH checked to see whether any “items which went out of code the day before remain[ed] in the reductions chiller cabinet”, but it appeared that the parties had agreed that frequency by the time of closing submissions. For the avoidance of doubt, since such checks were vital for the respondent, we concluded that the JH’s work for the purposes of section 65(6) of the EqA 2010 included carrying out such checks every day unless a colleague had done that or was going to do it. Determining and processing reductions

[118]Paragraphs [331-365] apply here. The disputes in those paragraphs as they stood by closing submissions were resolved by us in the following manner. 119 [332]: we agreed with the claimants that the respondent’s proposed words were superfluous. 120 [335]: we agreed with the respondent that this was a duplication. 121 [337]: since Mr Richardson did not do the reductions at the material times himself, his estimate of the minimum time it would take to do first reductions was less likely to be accurate than that of the JH. However, we could not see why the precise amount of time it took was material. If it was material, however, then the fact that the JH herself said that it could take up to 90 minutes had to be incorporated in the final words of [337]. In those circumstances, we accepted the claimants’ proposed words for that paragraph, with the substitution of 90 minutes for “an hour” in the first sentence. As for the second sentence, given the third sentence we found it hard to believe that the potential length of time that it would take the JH to do second reductions was material, but we saw that even the JH said in paragraph 162 of her first witness statement that they might take 2 hours, but that that was rare. In those circumstances, and given the content of paragraphs 161-169 of the JH’s first witness statement, we concluded that the use of the word “around” sufficiently captured the position, so we accepted the claimants’ proposed words for the second sentence. The third sentence was in substance agreed, so we accepted it as proposed by the claimants. 122 [344] The respondent’s proposed words and its case in regard to them were inconsistent with these words of C7/249/2 (which was part of the document entitled “Know Your Stuff For... Fresh Food Replenishment – Rotation”): “As you are working you should at all times be aware of and check the date codes on products”. It was also much more likely than not that the respondent required the JH and others in her position to check date codes, given the importance to the respondent of not having out of date stock on display. We add that we found nothing in any of the training Case Numbers: 3304495/2018 & others 65 materials before us (including documents in the bundle before us to which we were not referred specifically by the parties but to which we referred ourselves: see paragraph 83.1 above) which contradicted that instruction. Given that Mr Richardson’s evidence in paragraph 198 of his first witness statement was that rotation did not have to be carried out thoroughly, but that it was plainly inconsistent with the respondent’s own training materials, as shown for example at C7/249, we concluded that his evidence in regard to [344] was unreliable so that the JH’s should be preferred. For the avoidance of doubt, to the extent that what Mr Richardson said in paragraph 198 of that witness statement contradicted the respondent’s training materials, we rejected it. 123 [356] The words proposed by the claimants made no sense if they were read in isolation. The subject-matter of [356] was in any event to an extent catered for by [357], which was agreed. We understood that customers might get too close to the JH when she was carrying out reductions, or reach across her to pick up a newlyreduced product. If that occurred then it was a material matter. If in practice the JH could instead have carried out the reductions in the warehouse then that was also material, and the JH accepted that she could do that, but we accepted her evidence in paragraph 170 of her first witness statement that she did not normally do that because it was “much quicker to do it on the shop floor”. Accordingly, we concluded that the words in [356] should be these. “When the JH carried out reductions on the shop floor, customers might gather close to where she was working, making the process difficult. The JH would then be required to exercise tact and politeness in ensuring that customers gave her the space needed to carry out the task.” 124 [361]: C7/289/3 included these words: “When reducing products you should follow the department/store guidelines on how much to reduce products by if carrying out final reductions, manual reductions or percentage reductions.” We understood that that was what the respondent’s proposed additional words for [361] were intended to convey. We concluded therefore that the claimants’ contested proposed words at the end of [361] (“independently and without reference to a manager”) should be replaced by these: “in accordance with the current store (i.e. Woolton) guidelines and in the knowledge that the reduction would be reviewed on the following day by a manager”. 125 [362] In the light of that change, we concluded that the claimants’ proposed additional words in [362] were superfluous and should not be included. Similarly, the respondent’s proposed additional words in [362 and 364] were superfluous and should not be included. Serving customers on the checkouts [387-555] Case Numbers: 3304495/2018 & others 66 126 [387] The frequency with which the JH worked on checkouts was disputed. The respondent’s position was based on a spreadsheet which was proved by Mr Black. He gave no direct evidence on that spreadsheet, and there was no other evidence relating to the figures in it. We were in that circumstance unable to accept that spreadsheet as evidence of the frequency with which the JH assisted on checkouts. In addition, the one document in which anything was said about the manner in which the JH worked on checkouts was the page of the JH’s personnel file consisting of an annual appraisal for a year which we could not discern where (at C6/5/121, in the “Manager’s Summary”) it was said that she was “Multi skilled and one who definitely responds first time and promptly on checkouts”. That suggested rather more frequent assistance on the checkouts at some point during the relevant period than was contended for by the respondent. In those circumstances, we accepted the words proposed by the claimants for [387].

[127]We resolved the other disputes in [387-555], which we have not already resolved above, in the following manner. 128 [404] and [421]: the claimants’ proposed words were in our view apt, especially given the reference to a “Carry Out Service” at C7/143/11. 129 [411]: the respondent had no direct evidence to give in response to the JH’s evidence that she had to deal with price inconsistencies “at least a few times a year”, as stated in paragraphs 219 and 220 of her first witness statement and there was no reason to doubt what was said in those paragraphs. Accordingly, we accepted the claimants’ proposed word “Occasionally”. 130 [418]: the same was true in relation to the frequency with which the JH used the handheld scanner to scan heavy or bulky items. The current words of [418] do not refer to frequency. We concluded that the words “This occurred occasionally.” should be added at the end of [418]. 131 [430] and [432]: the word “occasionally” aptly reflected the JH’s evidence in paragraph 217 of her first witness statement, which we accepted. 132 [435]: the word “occasionally” aptly reflected the JH’s evidence in paragraph 213 of her first witness statement, which we accepted. 133 [437]: the words “around once a week” aptly reflected the JH’s evidence in paragraph 215 of her first witness statement, which we accepted. 134 [440]: the respondent’s contentions about this paragraph were correct, in our view. The paragraph had to reflect paragraph 216 of the JH’s first witness statement. 135 [441]: the frequency of the JH’s work on checkouts is determined by us above. The claimants’ proposed additional word of “occasionally” was therefore apt, and we rejected the respondent’s proposed formulation. Case Numbers: 3304495/2018 & others 67 136 [454]: the respondent led no evidence about the application of its Bulk Purchase Policy. Instead, it based its contention that [454] should be deleted on the JH’s evidence in paragraph 218 of her first witness statement. That contention was in our judgment wrong. That paragraph was about a material aspect of the JH’s work for the purposes of section 65(6) of the EqA 2010, as it was about something which involved a need to interact with a customer in a potentially difficult situation. Its aptness was in our view confirmed by C7/70/5. No frequency was stated in [454], however, but we concluded that the words of that paragraph were sufficient and apt. Age-restricted sales [455-466]

[137]Legal responsibility for age-restricted sales was (given the passage in the judgment of Lavender J in Beal v Avery Homes set out in paragraph 20 of our judgment of 12 July 2023) immaterial at this stage. In addition, there were in [455-466] many words about age-restricted sales, when few words would have been far better, with crossreferences to the applicable training materials. The JH’s responsibilities (and those of all other checkout operators employed by the respondent) in this regard were stated apparently comprehensively in the training documents at C7/13, C7/15 and (to the extent, if at all, it added anything) C7/190. For the avoidance of doubt, we concluded that if and to the extent that the parties have disagreed about the job facts relating to age-restricted sales and any of those documents contains a statement relating to that disagreed matter, that statement is determinative.

[138]Indeed, we could see nothing in [455-466] which added anything to the content of those training documents. Accordingly, the words to replace those paragraphs should be these: “The JH’s responsibilities when working on checkouts in regard to agerestricted sales are stated in C7/13, C7/15 and C7/190.” If the independent experts need any further finding of fact in regard to age-restricted sales, then they can ask us for it, and we will consider their request. Bag-packing 139 [467]: we doubted that there was any material difference between packing a bag “carefully”, and packing it “carefully, stably and securely”. We assumed that it was never the intention of the JH, nor that of the respondent, for a bag to be packed otherwise than stably and securely, as that would be problematic for the customer. We thought that the word “carefully” added nothing material in any event, so that the addition of the words “stably and securely” also added nothing material. The respondent’s document C7/124/9 referred only to the service of packing a customer’s bag, not to the manner in which it should be packed (i.e. with what care). The same was true of C7/184/2. However, C7/84 referred to when a customer should be offered the service of bag packing, and how it should be done. We saw from C7/84 that there was no need to be trained in order to be able to provide a bag-packing service, but that it was necessary to consider the need to make sure that heavy products were at the bottom and lighter or more delicate ones were at the top of a bag. Case Numbers: 3304495/2018 & others 68 Mobile telephone top-up 140 [472]: the respondent had no direct evidence to give in response to the JH’s evidence that she topped up customers’ mobile telephones “at least a few times a year”, as stated in paragraphs 219 and 220 of her first witness statement. Accordingly, we accepted the claimants’ proposed word “Occasionally”. Gift cards 141 [483]: the respondent had no direct evidence to give in response to the JH’s evidence that customers left activated gift cards at the checkout “at least a few times a year”, but probably “pretty rare[ly]” as stated in paragraphs 219 and 220 of her first witness statement. Accordingly, we accepted the claimants’ proposed words, which did not state a frequency. We doubted that what was said in [483] was material here. Paying with cash 142 [489-491]: C7/96, headed “Know Your Stuff For Checkouts – Accepted Methods Of Payment” showed at pages 1-11 what checkout operators, including the JH, needed to know about bank notes. The only reference there to referring to a manager was on page 1, where it was said that “When you are presented with notes that are not the currency you normally deal with you should contact your Team Leader for advice if you are unsure.” That was reflected in the words proposed by the claimants for [489- 490] to the extent that they referred to seeking assistance. What the JH was recorded to have said in her interview recorded at C6/4/33 (internal pages 129-130) was not, as contended for by the respondent, that “she would refer the note to the person running the back”. Rather, it was that “most of us would call whoever was on the back: can you just check this with me?” There was in fact no evidential basis that we could see, and certainly none identified by the respondent, for its contention that £50 notes were “always referred to the Team Leader for scrutiny”. As a result, we rejected that contention and the words proposed by the respondent for [489] and accepted the words proposed by the claimants.

[143]As for [490], the respondent led no direct evidence and there was no documentary evidence that we could see to contradict the content of paragraph 241 of the JH’s first witness statement. We could see no justification for rejecting that paragraph, which was credible in itself. What the JH said in cross-examination in relation the matter did not in our judgment detract from the words proposed by the claimants for [490] or suggest that they were inapt. For the reasons stated in this paragraph and the preceding paragraph above, we accepted the claimants’ proposed words for [490]. 144 [491]: given our conclusion in paragraph 68 of our reasons for our judgment of 12 July 2023, we saw no reason to reject the words proposed by the claimants or to accept those proposed by the respondent. We therefore accepted the claimants’ Case Numbers: 3304495/2018 & others 69 proposed words, but on the basis that they were in our view not material for present purposes. Cashback 145 [502]: we saw no justification for including the respondent’s proposed words, since our determination stated above on the issue of the frequency of the JH’s helping out on the checkouts was sufficient. However, the claimants’ proposed words did not reflect the part of the JH’s evidence on which they were based. Those proposed words were therefore inaccurate and had to be rejected if only for that reason. However, in addition, the respondent’s training materials (at C7/70/3 and C7/169/4) made it clear that the offer of “cashback” had to be made only when a customer used a debit card and only if the customer had spent at least £1. In addition, both at C7/70/3 and at C7/169/4, there was a reference to giving cash back only if the customer asked for it. In order to reflect those documents and in the light of the lack of a clear recollection of the JH in paragraph 244 of her first witness statement, the words of [502] needed to be: “Whenever a customer using a debit card asked for cash back, the JH was required to comply up to a maximum of £50 as long as the customer had spent a minimum of £1 and the customer’s credit limit on the card was not exceeded.” Tesco Clubcard 146 [520]: we accepted the respondent’s proposed text in preference to that of the claimants, given that the issue was what was expected of the JH. That it was the expectation was shown by C7/167/5. Saving stamps [523]

[147]The respondent had no direct evidence to give in response to the JH’s evidence that she dealt with saving stamps “at least a few times a year”, as stated in paragraphs 219 and 220 of her first witness statement. The contention of the respondent about the unreliability of that passage in regard to savings stamps did not persuade us that the text, similar to that of [521] and [522], which was (by the time of closing submissions now) agreed, should be rejected. Accordingly, we accepted the claimants’ proposed word “Occasionally” in [523]. Promotions 148 [529-530]: we accepted the respondent’s submissions on these paragraphs: the claimants’ proposed words for [529] having now been agreed, [530] is a duplication and should be deleted. Till roll replacement [531] Case Numbers: 3304495/2018 & others 70

[149]We accepted the respondent’s submission that the frequence of the need for the JH to change the till roll was not stated in paragraph 247 of her first witness statement. The claimants did not identify any other evidence in support of the proposition that it was about every two months. The task was described at C7/163/93, although naturally the tills will have changed over time. It was in our view sufficient therefore for the independent experts to know simply that it was part of the JH’s job when working on a checkout to be alert to a warning that the till roll needed to be replaced and to replace it as shown by for example C7/163/93. Assisted service checkouts 150 [541]: we could see nothing in the training materials which directly assisted our resolution of the dispute about the words of [541], so we determined it on the balance of probabilities and by reference to pages 2 and 3 of C7/39. We concluded, notwithstanding the respondent’s extensive submissions on the point, that the claimants’ proposed words best reflected the reality of what was required, both as shown by C7/39 and the JH’s evidence as referred to by the claimants in their closing submissions. 151 [547]: the respondent’s proposed words were inconsistent with that which we regarded as a requirement recorded at C7/39/2 to “[explain] interventions at the checkout in a friendly manner”. That was what the JH’s job was when there was a problem, and therefore we accepted the claimants’ proposed words for [547]. 152 [554-555]: we could not see that it was material whether or not ASCs were thieves’ tills of choice. Rather, the issue was whether or not there was a high risk of theft, for which the JH had to be on the lookout, i.e. to the risk of which she had to be alert. Common sense suggested that an ASC was indeed an area where intending thieves were most likely to be able to steal, and C7/34/1 bore that out, with its reference to nine separate ways in which theft could occur there. That page also bore out the detail of [554], although in our judgment C7/34/1 was better and more apt in that regard. In addition, the relevant pages of C7/147 (pages 3, 4 and 6) were the best evidence of what was required of the JH in this context. As a result, [554] and [555] in our judgment needed to be replaced by these words. “There was a high risk of thefts at ASCs, as shown by C7/34. It was the JH’s job when working at an ASC to be alert to the risk of thefts as shown on the first page of that document and to deal with it in the manner shown at pages 3, 4 and 6 of C7/147.” Cleaning and related issues [556-598]

[153]We agreed with the respondent that the role of the JH in regard to cleaning and keeping the warehouse safe was best regarded as an incidental (albeit vital) part of her work. That was said (although the precise description of the work of cleaning and Case Numbers: 3304495/2018 & others 71 keeping the warehouse safe was that it was “integral and not separate” rather than “incidental”) in response to section J of the EVJD for the JH, which was [556-598].

[154]The tasks which the JH had to carry out in the course of her work as a replenisher or otherwise as a customer assistant in relation to cleaning and otherwise helping to look after the physical environment in which she worked were stated in the documents referred to in paragraphs83.1 and

83.2 above, namely pages 13-16 of C7/142 and C7/234. We saw all of those things which were the subject of dispute in [556-598] as being catered for by what was said in those documents.

[155]For the avoidance of doubt, we accepted that the substance of [556] as contended for by the claimants accurately reflected the first box on the right hand side of C7/142/13 read with C7/234/3, part of which we have set out in paragraph 159 below, and therefore we accepted the claimants’ proposed words for [556], substituting up to “requires” these words: “As shown by the first box on the right hand side of C7/142/13, the JH was required”.

[156]The claimants’ proposed content of [559] was disputed because of the reference in it to smelling a spillage. In our judgment, the key thing was to be alert to the risk of a spillage, not the manner in which one came across it. If it were not immediately apparent to the eye, then it might become apparent only through the nose, but that was irrelevant, as was shown by the words on the right hand side of C7/142/13.

[157]Similarly, the disputes in regard to [567-568] concerned the frequency with which the JH might need to use absorbent powder or cat litter. If (which we doubt) it is material, then we accepted that the JH said in cross-examination that she used absorbent powder up to twice a year. We also accepted that the equipment referred to at C7/142/14 was intended by the respondent to be kept replenished, as shown by the text on the left hand side of that page. However, if the JH had instead to use cardboard from the recycling cage and cat litter, then that was probably no different in terms of demand for the purposes of section 65(6) of the EqA 2010.

[158]The assertion of rarity made by the respondent in regard to [569] was in our judgment not justified. Mr Richardson’s evidence differed on this from that of the JH, but(1) he was on the shop floor in the dairy area less than the JH,

(2) he accepted (as recorded on page 169 of the transcript for day 4) that his evidence on this (as, we think, was the JH’s) was a matter of impression, but

(3) Mr Richardson’s evidence sought to diminish the impact of the “clean as you go” policy. That was shown by the following words in paragraph 332 of his first witness statement: ‘I disagree that colleagues “kept an eye out” for mess, spillages or trip hazards. To me, this language suggests a requirement to look out for something proactively and with particular attention. Instead, colleagues dealt with them, as and when they came across them.’ Case Numbers: 3304495/2018 & others 72

[159]Those words had to be read in the light of these words on C7/234/3: “Slips, trips and falls are the biggest cause of accidents. This is why we adopt the principle of ‘Clean As You Go’ whenever we are working on the shopfloor or in the Chiller or Warehouse. You should remember from your ‘Working Safely’ training in Bronze For Everyone that keeping the store safe for customers and staff is everybody’s responsibility and you should clear and clean any potential hazards you see, even if you think its ‘not your mess’ or on ‘someone else’s department’. At all times you should be vigilant of any packaging or products that have fallen onto the floor. Whenever you see any packaging on the floor, you should remove it immediately. ... If a product has fallen from the shelf and spilt over the floor, you must stay with the spillage and get someone to call for a contract cleaner. You must never leave the spillage unattended.”

[160]Mr Richardson demonstrated by the evidence that we have set out in paragraph 158 above in our view either(1) that he had tailored his evidence to suit the respondent’s opposition to the claimants’ case, or

(2) a surprising lack of awareness of his own responsibilities as a manager, which in our judgment had to include reminding staff of the need to be vigilant to the risk of the causes of slips, trips and falls. In any event, we saw no reason to doubt the JH’s evidence in cross-examination on this (recorded at line 22 of page 39 to the first line of page 41 of the transcript for day 3), which we saw was reflected in the claimants’ proposed words for [569], and concluded that the right frequency for [569] was as stated by claimants, namely “around three times a month”.

[161]As for [570], the respondent led no evidence about the frequency with which a leaky bottle was carried around the store, and we thought (given our own experience of shopping in supermarkets) that it was likely to be a regular rather than an occasional occurrence. In any event, while frequency was probably material here, what was most material was the fact that the JH had to be alert to the possibility of leaks from bottles as opposed to large spills, so that she had to be particularly alert to spot them and, if she did, to clean them up immediately, albeit that if there was only a “trail of spillage” rather than a large spillage, it would on the balance of probabilities have been acceptable to the respondent for the JH to go and get a mop to clean it up. In any event, we accepted the claimants’ proposed words for [570].

[162]The dispute in regard to [573] was resolved in our judgment by reference to these words at C7/234/3: Case Numbers: 3304495/2018 & others 73 “If you see any damaged products that have spilled onto the shelf, you should carefully remove it, clean the shelf and any affected products before taking the damaged product to the Waste and Damages location for your department.”

[163]In the light of those words and the fact that, as we agreed with the respondent, cleaning as one went was done in the JH’s case when replenishing, we accepted the respondent’s proposed words for [573] up to “as necessary to do so”, but not the rest of those proposed words.

[164]We resolved the dispute in regard to [575] in part by reference to C7/234/2, which in our judgment showed that customer assistants such as the JH were expected to “clean all shelves, the sides of the cabinet, and any glass or mirrors visible to the customer” in the process called on that page “case cleaning”. However, that process was stated in that document to take place four times a year, which was rather less than what the claimants referred to in [575], which was two to three times a month. In addition, the claimants’ proposed words in [575] went further than the content of C7/234/2, but they were in no way inconsistent with that content, and made sense to us. In addition, we did not see what Mr Richardson said in paragraphs 353-354 of his first witness statement as covering the whole of the situation, since there was plainly the possibility of the JH being asked by her line manager to completely clean a mod, which it was in the respondent’s interests for her to do. As a result, we accepted the claimants’ proposed words for [575].

[165]We could also see no reason to reject the claimants’ proposed words for [576], especially since Mr Richardson accepted (in paragraph 354 of his first witness statement) that the JH “cleaned mould at the back of a chiller cabinet, from time to time” and that she used soap and water to do so, as described in paragraph [576]. We accepted, too, what the JH said in paragraph 270 of her first witness statement about always finding black mould at the back of a mod after 2011.

[166]The contested words in [578] were in our judgment apt. That was for the following

[167]The respondent’s contentions in relation to the words of [581] were not borne out by C7/142/13. We therefore saw no reason to reject the claimants’ proposed words for [581], and accepted them. Case Numbers: 3304495/2018 & others 74

[168]As for the contested words of [584], it was in our judgment, on the balance of probabilities in the light of our experience of what happens when a pot of yoghurt leaks, likely that multiple items would often be affected. The word “multiple” read in the light of the word “usually” was therefore in our judgment apt. We therefore accepted the claimants’ proposed words for [584].

[169]The words of [586] were, we agreed with the respondent, repetitious and needed to be deleted.

[170]We agreed with the respondent that [587-588] were a repetition of [556].

[171]The claimants’ proposed words for [590] were an accurate reflection of the third bullet/tick point on the right hand side of C7/142/13, and therefore we accepted those words.

[172]The claimants’ proposed words in [595] depended on the JH’s evidence about what she did in practice. If and to the extent that it was necessary for the purposes of section 65(6) of the EqA 2010 to do so, we agreed with the respondent that it was not a part of the JH’s job to make announcements over the store’s tannoy in the sense that that was not something which she was specifically required to do in the course of her employment. However, we also accepted the JH’s evidence that she did in fact do that, having previously worked on the Customer Service Desk. In the circumstances, we concluded that we had to accept the words of [595] as contended for by the claimants. We record here that there was no evidence that the JH was told that she should not make announcements over the store’s tannoy in the circumstances to which [595] related.

[173]The JH’s duty in regard to pests was succinctly stated at C7/142/28 and C7/823/56, and supported the claimants’ proposed words in [597]. We therefore accepted those words and rejected the respondent’s submissions to the contrary, which were merely about the frequency with which pests were reported, including by the JH, and did not affect the JH’s responsibility to be alert for, and report, pests. Additional elements of the job Personal hygiene 174 [599] stated the obvious, but if it was material, it was supported by C7/142/25, so we accepted the words of [599] on the basis that they described the JH’s responsibilities. Shoplifting

[175]As for the JH’s responsibilities in regard to shoplifting incidents, given the content of pages 3-4 of C7/147 and what the JH said in paragraph 285 of her first witness statement, we accepted the content of [605-606], including the word “regularly” at the end of [606]. As for the content of [607], it was accepted by the respondent to be Case Numbers: 3304495/2018 & others 75 factually correct, and in our view it was capable of being relevant as one of the aspects of the conditions in which the JH worked. Accordingly, we accepted that [607] should be included. Advice and assistance given to colleagues, and on-the-job training of new starters

[176]In part, we accepted the respondent’s contentions in regard to [614]. However, we concluded that the best way to capture the way in which the JH worked as far as that paragraph was concerned was simply to substitute the word “assistance” for “guidance” (thus retaining the word “advice”).

[177]However, we accepted on the evidence of the JH in paragraphs 293-297 of her first witness statement and on the basis of what we would ourselves have expected of a “permanent” customer assistant, especially a senior one such as the JH, that the content of [615] was accurate. In addition, we did not believe that the respondent would say that it was not the JH’s role to assist more junior colleagues. Thus, we accepted [615] as proposed by the claimants.

[178]We did not see the words proposed to be added to [616] and [618] as adding anything material to those proposed by the claimants, so we rejected the respondent’s proposed additional words. However, we agreed with the respondent’s proposed words for [617], which in our judgment were more apt than those of the claimants. In contrast, though, we concluded that the content of [619] was apt, if read as relating to what the JH was required to do in relation to the use of PDAs by new starters. We also concluded that there was no good reason to reject the content of [620-621]. Nor was there any good reason to delete the headings above paragraphs [616] and [620]. Supervision of students on work experience

[179]Similarly, we concluded that the claimants’ proposed words for the heading to [622] were apt, so we accepted them, notwithstanding the respondent’s contentions in that regard. Working conditions 180 [637]: we accepted the respondent’s additional words, which did indeed help to give a fair picture of the split in the time spent by the JH in the three locations at Woolton. 181 [638]: given what we said in paragraph 61 of our reasons for our judgment of 12 July 2023, there were no reliable statistics put before us, and we accepted statistics only if they were agreed or there was something in the evidence which justified that acceptance. The statistics in [638] were apparently provided by the respondent and accepted by the claimants. However, it seemed to us that the statistics provided almost irrelevant detail, since it was unlikely (as it seemed to us, in any event, before hearing from the independent experts on the matter) that the precise number of Case Numbers: 3304495/2018 & others 76 dangerous incidents which occurred at the workplace was material. What was material was whether or not there was a realistic risk of danger. In that regard, in our judgment pages 6, 8 and 12-15 of C7/147 showed that there was, since those pages were there for a reason. In addition, we accepted the JH’s evidence in paragraphs 318-328 of her first witness statement, which in our judgment spoke for themselves so that they should be read by the independent experts when coming to a view on the risks to the JH (and others in her position of customer assistant) of working on the shop floor. We did not see the content of [643]-[645] as adding anything material by way of facts to what we say in this paragraph. 182 [639-640]: we saw nothing added by those paragraphs, which were a summary of other parts of the EVJD and should therefore be omitted. 183 [641-642]: we concluded that there was some repetition here too. What was new and needed to be included in the statement of the JH’s working conditions (as with those of other customer assistants in any of the respondent’s stores) was that, as claimed in those paragraphs: 183.1the risk to the JH of slips and trips was increased when the shop floor was busy, and 183.2that risk arose from customers using baskets, wheel shoppers or trolleys, and from small children running around. 184 [646]: we did not accept the respondent’s proposed additional words, which were evaluative. We accepted that the noises stated in the claimants’ proposed words for [646] were in the background for the JH. Their impact is a matter of evaluation. We therefore accepted the claimants’ proposed words for [646].

[185]The content of [647-649] was sufficiently catered for by our reference above in paragraph83.1 to pages 5-7 of C7/142 and pages 9-25 of C7/823, to which we refer in paragraph

83.2 above. 186 [650]: subparagraph (a) was a repeat of what was said elsewhere (see paragraph 62 above). Subparagraph (b) was covered by C7/142/7, to which we refer in the preceding paragraph above. We preferred the respondent’s proposed words for subparagraph (c), as they better reflected the reality in our judgment. We accepted the claimants’ proposed words for subparagraph (d) given our acceptance (stated in paragraph 166.1 above) that the distance from the front to the back of the bottom of a chiller was 3ft. The respondent’s proposed word “standing” was more apt in subparagraph (e). The claimants’ proposed words for subparagraph (f) were plainly apt, if only as a matter of common sense, given our observations from our own experience, so that we concluded that what was in paragraph (f) was an apt description of what was required of the JH and any other checkout operator so far as relevant. Case Numbers: 3304495/2018 & others 77 187 [651]. We saw no reason to reject the JH’s evidence in paragraph 337 of her first witness statement, and in any event as a matter of common sense there will be a risk of scratching oneself on a plastic edge strip, not least because one can cut oneself on paper. The reliability of Mr Richardson’s evidence in response (in paragraph 459(e) of his first witness statement), which was in conflict with that of the JH in paragraph 337 of her first witness statement, was in our judgment diminished by what we saw as his willingness to say things which were inconsistent with both our understanding of common sense and the respondent’s own training documents. We refer to one concrete example of that in paragraph 160 above. However, this particular conflict of evidence was in our judgment not material. In our judgment, subject to any request from the independent experts for more precision, it was sufficient to conclude that there was a real risk to the JH of being scratched or cut by shelf edge plastic when she was replenishing. 188 [652]: assuming (which we doubted, given that the conditions of the respondent’s stores will have differed from place to place and that the issue here was what was the value of the work of a customer assistant, so that it was sufficient to conclude that it was likely that the respondent’s stores universally had much glass at their front) that the precise amount of light at Woolton was a material factor, we could not accept the respondent’s proposed amendments to the claimants’ proposed words, which words in our judgment were apt, given the evidence of both the JH and Mr Richardson. 189 [653]: we doubted very much that the respondent would have caused any of its stores to be so badly lit that staff could not read shelf edge labels. That was because it would be counter-productive and possibly a breach of the Health and Safety at Work etc Act 1974. What the JH said in paragraph 339 of her first witness statement was that she and her colleagues “often” found it difficult to read the dates on products before the lights were turned on fully. Mr Richardson’s evidence was that the issue had not been raised with him, and the claimants put no evidence before us of any written complaint that the lighting was too low. The respondent proposed the use of an estimate that the lighting was at only 60-70% of its full brightness. We were not aware of any evidence given to that effect, but Mr Richardson acknowledged that the lighting was dimmer when the store was not open to the public. In all of the circumstances, we concluded that the claimants’ proposed words should be used for [653] with the addition of the word “more” before “difficult”. 190 [654]: we accepted the respondent’s evidence, which was consistent with that of the JH, that the shop floor’s temperature was capable of being affected by

(1) a central heating boiler which the JH said (in paragraph 340 of her first witness statement) “would regularly be acting up”, and (as also stated there)

(2) air conditioning, which “either wasn’t strong enough or wasn’t turned on enough”. The JH accepted too (in paragraph 34 of her second witness statement) that she could use a “fleece” when on the shop floor. As a result, the main problem for the JH and her colleagues when operating a checkout was heat in the summer. We saw that in paragraph 31 of her second witness statement, the JH said that there was no air conditioning at the store. That was contrary to what we have recorded above as being said in paragraph 340 of Case Numbers: 3304495/2018 & others 78 the JH’s first witness statement. That self-contradiction was, however, we concluded, only apparent at first sight. That was because the JH at first thought that there might have been air conditioning but then came to the firm view that there was not, and that firm view was consistent with the failure by Mr Richardson to refer in his evidence (to which we refer in paragraph 194 below) to the existence of air conditioning at the store. In any event, we accepted what the JH said in paragraph 340 of her first witness statement about one occasion when the staff at checkouts were given iced lollies by the respondent, presumably because of the heat at the time. We also concluded on the balance of probabilities that what the JH said in that paragraph about being permitted to take a hot or cold drink to the checkout was temperaturerelated, and that what Mr Richardson said in that regard in paragraph 480 of his first witness statement (which was that he did not “consider that the reason colleagues took hot or cold drinks to the checkouts related to the Store’s temperature being uncontrolled”) was not a good guide to the reason why taking drinks to the checkouts was permitted. His words there were careful: he referred there to the temperature being “uncontrolled”, when the issue was whether drinks were permitted to be taken by staff to checkouts when they were operating them was temperature-related. What the JH said in cross-examination on day 3, recorded at pages 150-151, about taking a drink to the checkout related (and related only) to her taking of a bottle of water, “because of one of the conditions” which she had. The respondent’s submission that the JH had “conceded during XX that the reason why colleagues were allowed to take drinks to the checkouts had nothing to do with the temperature of the Store” was therefore not well-founded: it was true only that on the occasion in question, the JH had taken a bottle of water with her because of one of her own conditions. In those circumstances, we concluded that [654] as contended for by the claimants was apt, with the word “at” deleted before “to take”. 191 [656]: we concluded on the evidence before us that the JH did not regularly handle meat animal by-products when on the shop floor, as that was what the JH herself indicated in paragraph 341 of her first witness statement. However, the parties agreed that she handled fish and seafood products when they arrived in a delivery on which she was working, and that on occasion she handled sausages and bacon. Those would not be rancid. However, given the fact that the photographs at C6/6/86- 87 and 89 showed meat products in the dairy waste cage, we accepted that the JH did have to deal with such products when working on the contents of that cage. If there was a leak, the leaked material was likely to smell. However, the JH was able to use gloves when handling the product. In those circumstances, we concluded that the claimants’ proposed words for [656] overstated the impact on the JH of handling meat and fish by-products. In our judgment that paragraph was best framed in the following manner. The JH was required to handle fresh raw meat and fish by-products in packaging from time to time. She was able to use gloves when doing so. When dealing with waste products in the dairy department waste cage, she regularly had to deal with meat products, the packaging of which might be broken and which might be smelly. Case Numbers: 3304495/2018 & others 79 192 [657]: factually, what the claimants proposed for the content of [657] appeared to be agreed and in any event in our view was correct. The impact of the factors recorded there was a matter of evaluation. At the risk of stating the obvious, the factors referred to in [657] applied to all checkout operators. 193 [658]: the word “industrial” was evaluative and added nothing. We therefore agreed with the respondent that it should be omitted from the opening words of [658]. However, we accepted (1) the claimants’ proposed words for subparagraphs (a)-(d) with the exception of the reference to a forklift horn, for which there was no evidential basis, and (2) the respondent’s proposed words for subparagraph (e), all on the basis of the balance of probabilities and in the light of paragraphs 344, 345, and 350 of the JH’s first witness statement and paragraphs 473 and 487(a)-(c) of Mr Richardson’s first witness statement. 194 [659]: both parties agreed that the warehouse was heated and Mr Richardson accepted (in paragraph 57 of his first witness statement) that such heating merely (our word) “reduced the fluctuation of the temperature”. Given the evidence of both Mr Richardson (in paragraphs 57-59 of his first witness statement) and the JH (in paragraph 346 of her first witness statement), we accepted the claimants’ proposed words for [659]. 195 [660]. However, we concluded that the respondent’s proposed words for [660] better reflected the factual position, which was not, we saw, in substance disputed. 196 [661(a)] stated the obvious as far as what the JH did was concerned, ignoring the reference to “moving product in bulk”, which as stated below the heading to paragraph 26 above added nothing relevant. The fact that the JH was able to use gloves was, however, relevant. What needed to be recorded in [661(a)] therefore was that the JH was provided with protective clothing. 197 [661(b), (c) and (e)] and [662] as proposed by the claimants were apt: the risk of injury existed. Its significance is an evaluative matter. 198 [661(d)] was unnecessary given C7/142/7, which we have incorporated by reference in paragraph 185 above. 199 [663] seemed to us to be too general to be of any use, and in any event to the extent that it was capable of being regarded as a statement of material fact (which we doubted: it was rather more in the nature of an evaluation) a repetition of what was said elsewhere. We therefore rejected it. 200 [665]: the subject-matter of this paragraph was the fact that the JH had to move between areas with different temperatures. We did not understand that the words “timed work” added anything, assuming that they related to the Cold Chain policy. It was self-evident that the warehouse chiller might be colder than the rest of the Case Numbers: 3304495/2018 & others 80 warehouse (but not necessarily, given the JH’s evidence) and the warehouse freezer would be colder than the rest of the workplace. [669] was a submission, but if it was more than that then it was a repeat of [665]. 201 [666] was a repeat of [272], with which we deal in paragraph 110 above. 202 [667]: we concluded that the second sentence of the claimants’ proposed words for that paragraph stated the obvious and should not be included. The respondent’s proposed words with the word “very” omitted (in both places) best captured the factual situation. 203 As for the claimants’ proposed words for [668-670] which were not agreed: 203.1The JH did not frequently go into the freezer, as far as we could see. We concluded that, as Mr Richardson said in paragraph 459(k) of his first witness statement, she did so only “when wasting meat products that had been stored on the dairy cage and when replenishing frozen products”. However, the frequency with which she did that seemed to us on the evidence which we had heard to be higher than, as Mr Richardson asserted, “only a couple of times a year”. We saw that the JH herself said only that she did so “regularly”, and that was said in paragraph 35 of her second witness statement. We accepted that paragraph, in which she said that she went into the freezer “twice a week to store the animal by-product waste”. We accepted therefore that the words of [668(b)] should be as proposed by the claimants. 203.2We saw no evidence before us to support the claimants’ proposed words relating to a temperature range of 10-25 degrees Celsius for [668(d)]. The fact that the respondent was likely to want its stores’ usual, ambient, temperature to be acceptable to the public, albeit that in winter the public would be likely to be in warm clothing, suggested to us that those figures were too extreme. In the absence of evidence of the temperature range, and given our finding about the chiller aisles stated in paragraph 16 above, we concluded that we neither could, nor needed, to make any additional finding of fact about the temperature at Woolton. 203.3Given our finding in paragraph 16 above about the chiller aisles, and the agreed wording of [637], we saw no need for [670], which we therefore concluded should be omitted. 204 [671-672] Given our findings in paragraphs 60-65 above about [234-240] and [243], [671-672] were repetitious and unnecessary with two exceptions, concerning things not dealt with above. [671-672] should therefore be deleted except that 204.1we accepted the JH’s oral evidence on day 3 at pages 88-90 about being scratched or cut, so that the claimants’ proposed opening words of [672] and their additional proposed words for [672(a)] should be included, and Case Numbers: 3304495/2018 & others 81 204.2we saw nothing in the evidence of Mr Richardson in paragraph 459(j)(ii) or his oral evidence on day 4, at pages 216-219, to justify rejecting the JH’s evidence in paragraphs 123-126 of her first witness statement about damaged wheels on a cage and their impact on her work (which we accepted), so that the words of [672(b)] should also be included but with the words “at least” replaced by “about”. The yard [673] 205 The risks to the JH incurred when going into the yard were recognised at C7/142/4, as noted in paragraph 83.1 above. We concluded that both parties were seeking to argue their cases in the words about which there was disagreement in [673]. We concluded that the words should be these. The JH regularly went into the yard, where she was at risk of being struck by a moving vehicle. In order to mitigate that risk, she was required to follow the instructions stated in the box on the left hand side of C7/142/4. Monitoring 206 [674] was a repeat of [23], to which we refer in paragraph 19 above. 207 [[675]: there were CCTV cameras at Woolton, as shown by C6/6/24, C6/6/27, C6/6/30, C6/20/53, and C7/784. Plainly, the JH was aware that her actions were capable of being monitored via that CCTV in accordance with the policies referred to in C7/784, at least in 2018. Mr Richardson’s own evidence, in paragraph 489 of his first witness statement, was that “there was CCTV in the Store and it was zoomable”. The claimants’ proposed words of [675] were therefore apt, and those proposed by the respondent were not. 208 [676]: we accepted what the JH said in paragraph 356 of her first witness statement. We therefore concluded that the claimants’ proposed words were apt, and that they were to be preferred to those proposed by the respondent. 209 [678]: if and to the extent that it was necessary to refer to monitoring of the legal requirements relating to age-restricted purchases (which, given our finding stated in paragraph 13 above, we doubted, since the burden of the knowledge of the possibility of being found to have broken the law was probably sufficient for present purposes), we accepted the respondent’s proposed words for [678], which in our judgment, based on the evidence which we heard, best reflected what happened in practice. 210 [680]: we agreed with the respondent that being in a public-facing role in which one is vulnerable to the possibility of a complaint is not the same as being monitored. If and to the extent that the issue was material (and we thought that it was, but not on the Case Numbers: 3304495/2018 & others 82 basis that it amounted to monitoring), the evidence of the JH in paragraphs 197-198 of her first witness statement (which we accepted) showed that she worked in the knowledge that customers might complain about her, and thereby cause her anxiety. However, the risk of a justified complaint was probably very low, and therefore the effect of such knowledge might not be capable of being measured for the purposes of section 65(6) of the EqA 2010. That, though, is a matter of evaluation. The appropriate words for [680] should therefore be: The JH worked in the knowledge that any customer might complain to the respondent about her conduct towards them. 211 [681]: the claimants put no evidence before us to show that the use by the JH of a PDA was capable of enabling the respondent to monitor the JH’s work in carrying out reductions. The words about monitoring in [681] were therefore speculative. The respondent, on the other hand, led direct evidence from Mr Richardson (on day 4; it was recorded on pages 17-20 of the transcript for that day) to the effect that during the relevant period, the PDAs were not capable of being used to monitor the JH’s work, despite the fact that she had to log in individually when using one. In the absence of any evidence to undermine Mr Richardson’s evidence in that regard, we accepted it. Accordingly, [681] must be omitted. 212 [682]: The JH worked in the knowledge that she might be searched as shown on pages 10-11 of C7/147, with the possible consequences shown on those pages. The JH’s evidence in paragraph 358 of her first witness statement was not contradicted, so we accepted that such searches happened in the manner shown by what the JH said in that paragraph. We saw no reason in those circumstances to reject the claimants’ proposed words for [682], which we therefore accepted in preference to those of the respondent, which we thought wrongly sought to diminish the impact of the searches. Case Numbers: 3304495/2018 & others 83 Appendix 2 Siobhan Williams (to whom we refer below in this appendix for the most part as “the JH”) TRIBUNAL’S DETERMINATIONS OF THE RELEVANT FACTUAL DISPUTES Introduction and overview 1 Having completed one set of determinations for a replenisher (Mrs Worthington), with a revised and completed framework, for the sake of simplicity, brevity and speed, we have in relation to the work of Ms Williams merely stated (a) what disputed factual issues we concluded were irrelevant (and there were only a few which we could say were positively irrelevant, although we doubted the relevance of the factual basis for a number of the disputes), and (b) our resolutions of, and our reasons for those resolutions, of the disputes which we concluded might be, or were, relevant. Here, as with our determinations relating to the work of Mrs Worthington, a number in bold font is a reference to a numbered paragraph of the EVJD for the JH, Ms Williams. Here, though, we have not put square brackets around the bold paragraph numbers. Paragraph 1; “employment information”: the context in which the JH worked 2 1.1 concerned disputed matters which in our judgment were wrongly disputed. The JH’s precise working hours were not relevant. Having said that, as far as we could see, what the claimants proposed in relation to the JH’s working hours was broadly correct and as far as we could see was sufficient for the purposes of evaluation. We therefore made no determination of the disputes in 1.1 but on the basis that if the independent experts (“IEs”) needed a determination of any of those issues, then they should ask us for it. 3 1.2.2; The presence or otherwise of a security guard at the store at which the JH worked during the relevant period (“the store”). We could not see how the precise manner in which the security guard worked when there was one present, could affect the IEs’ assessment of the value of the JH’s work. If and to the extent that it was relevant in that it was part of the conditions in which the JH worked, then we accepted the respondent’s proposed additional words. 4 1.2.3; Monitoring by CCTV. The documents on which the claimants relied (C5/10/13 and C7/783) were in our view determinative and sufficient. We noted that the respondent agreed that there was CCTV at least on the shop floor. For the avoidance of doubt, we concluded that the words up to and including “CCTV” were all that was required for this paragraph. 5 1.2.5; The claim that the environment in which the JH worked was “dynamic” and in part “uncontrollable”. The position here was in part obvious and self-evident and in part best evidenced by pages 2-3 and 5-6 of C7/147. The words “dynamic” Case Numbers: 3304495/2018 & others 84 and “uncontrollable” added nothing material in our judgment. If there was a need for a determination, then we accepted the claimants’ proposed third to fifth bullet points on the basis that they were self-evidently apt and supported by C7/705. 6 1.2.6; Risks on the shopfloor. We could not see a need to determine whether or not the respondent’s proposed additional words should be included. What we say in paragraph 181 of our determinations of Mrs Worthington’s work (i.e. paragraph 181 of Appendix 1, at page [ ]) applied here. Given what was said in 17.2.2 of the EVJD for the JH, we add here a reference to mobility scooters and zimmer frames. Accordingly, for the avoidance of doubt,

6.1 the risk to the JH of slips and trips was increased when the shop floor was busy, and

6.2 that risk arose from (1) customers using baskets, wheel shoppers or trolleys, mobility scooters or zimmer frames, and (2) small children running around. 7 1.2.7; Reported incidents at the store during the relevant period. The question whether or not the JH was on shift at the time of the various incidents was in our judgment not relevant. What was relevant was the size of the risk of an incident, and that was shown by the agreed figures in this paragraph, as shown more helpfully by the claimants’ proposed words for it. 8 1.2.8; USDAW survey results and stated results of causes of abuse. Given that (1) the statistics in this paragraph were supported by the documents from which they were drawn (C7/862, C7/908, C7/894 and C7/910), (2) the respondent did not dispute those statistics, and

(3) they were in our judgment relevant to show the conditions in which the JH worked, we accepted the claimants’ proposed words for this paragraph. 9 1.2.11; Warehouse layout changes. The parties agreed that the locations of items changed from time to time. Whether it was relevant that they did so was not at all clear to us, but assuming that it was relevant, we preferred the claimants’ proposed words, not least because the respondent’s proposed additional words were in our view evaluative. 10 1.2.13; Effect of external temperature. We concluded that the claimants’ proposed words for this paragraph were more apt; they were succinct, but sufficient. 11 1.2.15; Receipt of deliveries. It was an inescapable conclusion (and it was a conclusion which was plainly to be expected of a customer assistant employed by the respondent) that the JH did at some points during the relevant period assist with moving units of delivery (“UoDs”) from the lorry in which they were delivered to (1) the warehouse of the store, and (2) the shop floor of that store. That was evidenced by what Mr Woolley said in paragraph 206 of his witness statement, which was this: Case Numbers: 3304495/2018 & others 85 “I did not instruct Siobhan to assist me with tipping lorries in the service alley and I only asked her to manoeuvre cages into the warehouse from the cargo lift very infrequently.” 12 In paragraph 205 of his witness statement, Mr Woolley said that he recalled the JH “manoeuvring cages out of the cargo lift at shopfloor level and into the warehouse ... less than ten times in the three years that I worked in the Store”. 13 It was also evidenced by what Mr Gleiwitz said in paragraph 200 of his witness statement, where he said this: ‘Siobhan did do some replenishment and colleagues tend to refer to this as “working the deliveries” but she did not do the deliveries themselves in terms of overseeing the delivery drivers, accepting and taking goods into the Store and carrying out any necessary paperwork, which is what colleagues call “tipping the lorries”. The way I describe it is, once items were in the warehouse, the delivery tasks have ended and they became replenishment tasks.’ 14 What Ms Jemmett said in this regard was primarily in paragraph 237b of her witness statement and was that the JH did not assist with even one delivery to the back door of the store while she, Ms Jemmett, was the store’s manager (i.e. from 1 May 2017 until the end of the relevant period). That evidence was forcefully repeated by Ms Jemmett orally, as recorded on page 31 of the transcript of day 13 (that is to say, the page numbered internally as 31; it was at pdf page 9, but unless otherwise stated, we refer in this document to the internal numbering of transcript pages). However, Ms Jemmett did say that on one occasion, as she described it in paragraph 61 of her witness statement, the JH helped (as did all other available members of staff because of the “need to get the delivery in quickly”, it being a case of “all hands to the deck”) to move cages from the pavement at the front of the store to the store’s warehouse. 15 Against that, we had the claimant’s evidence in paragraphs 191 and 192 of her first witness statement, which was clearly to the effect that she assisted with moving newly-delivered stock from the tailgate of the delivery lorry into the store. She affirmed that evidence orally, despite being pressed hard on it in cross-examination, and she put before us several photographs (C5/81 and C5/82) which were taken on Ms Jemmett’s birthday, which she (Ms Jemmett) took as annual leave, and which the JH acknowledged (on page 110 of the transcript of day 11) were taken by her cousin, who was also a shift leader. That was Mr Scott Carrington. 16 Having (1) considered what the parties said in their closing submissions on this issue (including, for the avoidance of doubt, those made by the respondent in relation to paragraph 13 of the EVJD for the JH), (2) heard and seen the claimant, Ms Jemmett, Mr Woolley and Mr Gleiwitz give evidence, and (3) taken into account the fact that the JH’s role in practice was mainly to operate checkouts and replenish, we preferred the respondent’s evidence to that of the JH about the extent to which she assisted Case Numbers: 3304495/2018 & others 86 with moving stock on UoDs when deliveries were received at the store. So, we accepted that the JH occasionally (that is to say, using that term as defined at H31) did what Mr Gleiwitz and Mr Woolley described her as having done as set out by us in paragraphs 11-13 above, and we accepted that the JH did not do that to any extent while Ms Jemmett was present at the store except once, as described paragraph 61 of Ms Jemmett’s witness statement. 17 1.2.16; Working in the alley at the back of the store. Having preferred the respondent’s evidence to that of the JH, we agreed with the respondent that 1.2.16 should be omitted. Consistent changes needed to be made to the rest of the EVJD for the JH, namely to 1.5.1, 1.5.2 and the whole of paragraph 13. 18 1.2.17; Risk of injury from moving cages. Pages 4-12 of C7/142 were a very good guide to the risk of injury which the JH faced when doing her job of replenishment, and the manner in which the JH was required to work when moving cages (and other UoDs) on the shop floor or in the warehouse. 19 1.3.1; Number and type of staff with whom the JH worked. We accepted the claimants’ proposed words for 1.3.1. That was because they were borne out by the document at C5/53, which showed that towards the end of the relevant period the rota for the store was such that only one assistant was present at the end of the day, and the JH was that lone assistant on two of the days of the week to which that document related (it was the rota for the week commencing on Monday 1 October 2018). We noted in this regard that Mr Woolley said in paragraph 47 of his first witness statement that he worked alongside between one and four customer assistants, which corroborated the JH’s evidence in this regard and the document at C5/53, as did what he said in paragraph 43 of his witness statement. 20 1.3.3; Presence of a managerial member of staff. That which divided the parties on this paragraph was the respondent’s proposed additional words, for which we could see no concrete evidence in support. What Ms Jemmett said about the issue in paragraph 30 of her witness statement, for example, was general only and did not support the proposition that she would typically work for between one and three hours over and above her contracted hours, so that she was available to the JH for such additional hours. In any event, we concluded that the possibility of Ms Jemmett or any other manager being present was irrelevant for present purposes. That was because the JH did not assert that she was ever present at the store without a manager to whom she could turn for advice or assistance. 21 1.4.1; Cigarette packaging. We accepted the additional words proposed by the claimants on the basis that they were almost agreed and because we could not see that the respondent’s proposed additional words (“it became straightforward”) added anything to those proposed by the claimants. The words “it became straightforward” were in our judgment evaluative and in any event superfluous given the claimants’ proposed words. Case Numbers: 3304495/2018 & others 87 22 1.4.2; Single-use carrier bag charge. The dispute here was about whether or not the JH was required to, or did, after the requirement to charge customers for plastic bags, ask customers how many plastic bags they wanted. Neither party referred to C7/689, which was in our view determinative. That stated what was required: to “Assess whether the customer has their own bags, offer help or ask if they need carrier bags, reminding them there is now a 5p charge if they are not aware.” Whether or not the JH actually did that, it was part of her work to do it. 23 1.5.6; The training that the JH received. It was not in our view helpful to have an overview and as part of that overview refer to other parts of the EVJD (here, paragraph 31). Paragraph 2; checkout work 24 The JH’s responsibilities when she worked on the checkout in regard to cleaning are stated in C7/155 at page 1. That which the respondent proposed as the words for paragraph 2 in regard to cleaning was in our judgment mostly apt, not only because of what was on that page but also because it accorded with common sense. However, if and to the extent that C7/155/1 went further than those words, then C7/155/1 was determinative of the JH’s work in this regard. 25 The parties’ dispute about whether or not the JH in fact, without being asked by a manager to do so, replenished items stored behind the mainbank checkout area fell in our judgment to be determined in the light of what Lavender J said in paragraph 30 of his judgment in Beal. That is because we concluded that it was impossible to dispute that there was a need to replenish those items and that the person to do it would have to be the checkout operator whenever an opportunity to do it arose. So, it was in our judgment part of the job of the JH to do that. Whether or not she did it without being prompted to do so seemed to us in the light of paragraph 30 of Beal, or alternatively obviously, irrelevant. Accordingly, we accepted the claimants’ proposed words for the final sentence of paragraph 2. 26 2.1.3; Replenishment of the healthy food display. Similarly, the dispute about whether or not the JH replenished the health food display at the entrance to the checkout area was in our judgment mistaken. In our judgment, the JH’s job consisted principally of replenishment and working on the checkouts. If the healthy food display needed to be replenished and she was either asked by a manager of the respondent to replenish it or she did it on her own initiative, then it was part of her work for the purposes of section 65(6) of the EqA 2010. Accordingly, we accepted the claimants’ proposed words for 2.1.3. 27 2.3.2; Signing onto the mainbank checkout and the Assistant Station for the Assisted Service Checkouts (“ASCs”). There were two disputes about the words proposed for this paragraph. One was whether or not the JH always had to sign onto the Assistant Station or only if she was the first person to sign in at the start of the day. The second was about how a check, which would be done by either one or two Case Numbers: 3304495/2018 & others 88 other people, including the duty manager, of the content of the till would be carried out before the JH could take over a till: the dispute was about whether or not the person coming off the till would participate in that check. The latter was in our judgment not relevant to the JH’s work for the purposes of section 65(6) of the EqA 2010, so we did not resolve it, unless the dispute was in reality about whether or not the JH herself participated in till checks when she herself was coming off a till. 28 The first of those two disputes was resolved in part by looking at the respondent’s witness statement evidence on the point, which was (in paragraph 44 of Mr Gleiwitz’s first witness statement and paragraph 169 of Mr Woolley’s witness statement) that someone had to log onto the Assistant Station at the start of the day, and that it was done by using a photocopied barcode to do so. Given that the document at C7/62/3 showed that in order to do anything on an ASC, it was necessary (at least by September 2013) to scan one’s individual barcode to log in and do anything on the checkout, we concluded that the issue of who started off the ASCs at the start of the day was probably immaterial, but if it was material, then we accepted the respondent’s evidence on it, given that it was on the balance of probabilities more likely to be correct than the claimant’s, since we could see (on the evidence before us) no practical reason why the JH would have needed to log onto the Assistant Station every time she took over as the person responsible for monitoring the ASCs. 29 C7/62, together with C7/68 showed the principal duties of the JH in regard to ASCs. C7/39 showed the amount of training required to be undertaken to operate the ASCs, and the things on which the JH should have been trained. C7/163 was also highly material. None of them said anything about carrying out a till check. However, nor did they refer to a “till lift”, but after some research of the documents on Opus, we found references in question 6 in the documents at C7/69/2 and C7/86/2 to a “till pickup” which, we could see, would be required if the “till prompt ‘Assistance’ [was shown]”. That process was described and therefore prescribed in detail at pages 37-38 of C7/165 and pages 95-96 of C7/163. On page C7/165/37, this was said. “To protect you whilst working at your tills it is important that our tills do not hold too much money. There is an automated till prompt that will appear when there is over £600 in your till drawer. You must then perform a till clearance. However, as soon as £200 in notes is available to lift then this should be lifted. Till pickups can only be performed by a Manager or appointed person. The person on the till is accountable for the money in the till. Therefore, that person must be party to the ’dual control’ when cash is lifted.” [Original underlining.] 30 The full process was described on C7/165/38 and pages 95-96 of C7/163. What is said on those pages serves therefore as an accurate and sufficient statement of what was required of the JH when carrying out a till pickup (or lift). 31 The fact that it was said at C7/165/37 that “Till pickups [could] only be performed by a Manager or appointed person” but that the “person on the till” had to be “party to the Case Numbers: 3304495/2018 & others 89 ‘dual control’ when cash [was] lifted” supported the respondent’s evidence that the JH would not herself carry out a till check. The fact that all that the respondent’s training documents to which we refer in the above two paragraphs merely required the JH to log onto a till and then log off again when she had finished operating it, coupled with the fact that the respondent’s evidence (which the claimants accepted) was that a till check had to be carried out before the JH took over a till which had immediately before then been operated by a colleague, suggested very strongly that the JH would not have been required by the respondent to participate in a till check at any time. That was the claimants’ own case, as far as we could see, as it was said at the end of 2.3.2 that “Till checks were not required to be carried out under dual control.” That was inconsistent with the proposition that the person coming off the till would be required to participate under the “dual control” system. Yet the parties agreed this sentence: “If JH is taking over a Mainbank Checkout from a colleague, and that colleague was not expected to return to the till during the same shift, JH’s colleague and Manager would perform a till check on Mainbank Checkout 1 before JH can take over.” Given that that sentence had nothing to do with the JH’s work for the purposes of section 65(6) of the EqA 2010, we were able to ignore it, unless it was said that the JH herself would participate in a till check. Overall, the content of 2.3.2 was internally inconsistent, therefore, as far as both parties’ uncontested assertions were concerned. Alternatively, its effect was not clear. 32 Ms Jemmett’s evidence on this aspect of the matter was stated in part in paragraphs 214-215 of her witness statement, which were in these terms. “214. I disagree that Siobhan did till checks. In the Store, these were either done by me or by Diane, the Store's Cash Admin [Paragraph

12.2.1 EVJD]. They were also not done under dual-control in the Store as the EVJD suggests – only till lifts were required to be done under dual-control and as far as I can remember, there was no Tesco policy that till checks should be carried out under dual-control. As such, Siobhan did not have to use the coin counting machine for these purposes, as is suggested [Paragraph

12.2.2 EVJD]. We do not need to carry out till checks in the Store now, in the same way that we did during the Evaluation Period, as Smart Tills were introduced into the Store in late November / early December 2018 {C5/57}. 215. The till slip process described was not carried out by Siobhan. This was done by our Cash Admin, Diane [Paragraph

12.2.3 EVJD]. I confirm that inputting the cash amount recorded on the till slip into the computer at my desk is my job rather than Siobhan's job [Paragraph

12.2.4 EVJD].” 33 Paragraph 197 of Mr Gleiwitz’s first witness statement was to the same effect, as was paragraph 155 of Mr Woolley’s first witness statement. 34 It seemed to us that the respondent probably had in its possession documents showing or consisting of the training which managers were given about the carrying Case Numbers: 3304495/2018 & others 90 out of a till check, and that those would show definitively how a till check had to be carried out. In the absence of such documents before us (and we saw that such document might well have been one or more of those referred to at C7/39/5), we concluded on the basis that there was nothing at all in any of the documents relating to the training of a checkout operator to the effect that the operator was to participate in a till check, and in the light of paragraphs 214-215 of Ms Jemmett’s witness statement, paragraph 197 of Mr Gleiwitz’s first witness statement and paragraph 155 of Mr Woolley’s witness statement, that the operator did not do so. However, all three of those witnesses confirmed that the JH would be involved as part of the dual control process, albeit not to the extent stated by the JH, in the carrying out of a till lift and the documents to which we refer in paragraphs 29-31 above were consistent with that. As a result, we concluded that participating in a till check was not part of the JH’s work, but participating in a till lift was, in the way described at C7/165/38, which included “[b]oth parties [completing] and [signing] the takings deposit summary ensuring the date and till number is written at the top.” 35 We saw that paragraph 12 of the EVJD referred to “cash handling” and in the course of doing so referred to “Till Lifts on the Mainbank Checkout”. If that was because it was asserted that there was a difference between working on a mainbank checkout and monitoring the ASCs, then it was in our view mistaken. That was because as far as we could see, the work of assisting (or merely observing as an interested observer) a till lift was the same whether it was done at the ASC or a mainbank checkout. In any event, the JH’s evidence in paragraph 113 of her first witness statement was that no prompt would be displayed on the till when a till lift was required. That was said by reference to C7/165/37, to which we refer above. The JH’s evidence in paragraph 113 was this: “I do not recall this and question whether our store’s tills were an older model.” 36 However, C7/165 was issued in July 2010. Paragraph 1.1.1 of the EVJD for the JH, which was agreed, was in these terms. ‘The job holder (JH) commenced employment with Tesco Stores Limited (“Tesco”) on 7 September 2009 as an Express Customer Assistant. JH worked at another Birmingham Express Store until the Kingstanding Birmingham Express (236) (the “store”) opened on 25 September 2009.’ 37 The tills at the store at which the JH worked were therefore probably new in 2009. The relevant period, to which the EVJD relates, started three years later. Bearing those things in mind, the JH’s evidence in this regard was not cogent. In addition, having concluded that the training materials were the best evidence of what was required of the JH, we concluded that the JH’s recollection that she was not prompted by the till itself to call for a lift was mistaken, and that she was so prompted. 38 2.4.2; Aspects of working on a mainbank checkout. what the JH in fact did about the replenishment of bags at the checkout was relevant only if the respondent’s Case Numbers: 3304495/2018 & others 91 training materials were silent in regard to such replenishment. They were not. C7/168 stated on page 2 stated this: “You need to make sure you have enough carrier bags available.” It then stated the kinds of bags of which there needed to be enough at the till. That that document applied to Express stores was evident from the reference on the next page to chairs not being supplied as standard in “Express”. C7/74/5 referred further to the kinds of bags of which there needed to be enough at the checkout. C7/152/2 applied specifically to Express stores and said the same things as C7/168 so far as relevant. So, the claimants’ proposed words for 2.4.2 were apt and should be used. 39 Paragraph 2.4.2 referred also to what the JH did in the event of a fault with the checkout. C7/38 and C7/41 specifically referred to rebooting an ASC, and in any event it was obvious that the JH would be required to consider rebooting the mainbank checkout if (as suggested in 2.4.2) its screen was blank. 40 As for whether or not the JH would in that situation check to see whether a cable was loose, this was so obvious that it did not need to be the subject of training materials: if a checkout has a blank screen then it may be because the power or signal cable is disconnected, and the respondent accepted that the JH “may check whether any cables are loose, calling a Manager if that does not resolve the issue”. We took that to be agreement that it was part of the JH’s job to check the power supply and any cable supplying a signal to a blank screen and in doing so to check to see whether a cable to the screen was loose. Accordingly, we accepted the claimants’ proposed words for 2.4.2. 41 2.5.3; What the JH did when replenishing carrier bags at the ASC before a charge for them was required to be made. We preferred the respondent’s evidence and submissions on the issue of whether the claimants’ proposed additional words were included. We could see no practical or factual justification for the proposition that the ASC (which was the respondent’s main term for a self-service checkout) needed to be taken out of shopping mode “to prevent weight interventions occurring”. 42 2.6.1; Scratchcard replenishment. C7/162 said nothing about the extent to which there was a need to restrict the filling of a scratchcard display to a “Cash Controller” or a manager. However, that was far from being determinative. We could see no justification for the JH doing the job of replenishing the scratchcards if that was a task which was assigned to the Cash Controller and there was a need for access to the safe in which the scratchcards were kept. It was the respondent’s clear evidence that it was so assigned, and the JH’s own evidence (in paragraph 44 of her first witness statement) was that she would almost always tell the Cash Controller or in the absence of that person, the relevant manager, that scratchcards needed to be replaced, but that, rarely, she had been “asked to get the scratchcards from the safe upon the request of the Manager/Cash Controller who had left the safe open and passed me the office door keys”. So, the JH accepted that she did not have access to the safe unless she was specifically given it. In fact, we doubted that the safe would Case Numbers: 3304495/2018 & others 92 be left open. In any event, given the high value of scratchards and the cogency of the respondent’s evidence on this issue, we preferred the respondent’s evidence. Accordingly, we concluded that the respondent’s proposed words for

2.6.1 should be included, and not those of the claimants. 43 2.6.2; Scratchcard activation. For similar reasons, we preferred the respondent’s evidence in relation to and its case on

2.6.2 (including by way of example what Ms Jemmett said in cross-examination, as recorded at pages 68-70 of the transcript for day 13, which we preferred to the JH’s evidence on this issue) and concluded that it should be omitted from the EVJD. 44 2.7.2; Cigarette replenishment. we were unable to see how the matters in dispute in regard to 2.7.2 could affect the determination of the JH’s work in regard to the replenishment of cigarettes in the cigarette “gantry”. By the time of closing submissions, the parties were agreed that the JH did such replenishment, “on average once a week, for approximately one to two hours in between serving customers on the Mainbank Checkout”. The main difference between the parties related to the extent to which the JH wrote a list of brands of cigarettes which were missing from the gantry, or of which there was only a low level of stock in the gantry (once a week or twice a year), and the extent to which the box in which the cigarettes would be brought from the safe impeded movement behind the mainbank checkout. The size of the box was stated by Ms Jemmett in paragraph 68 of her witness statement to be “not particularly small”, but, she said, that did not matter because “it was generally only brought out when the checkouts were quiet and when there were not multiple colleagues serving on the tills”. We found that compelling evidence, and accepted it. As for the other factual dispute, about the manner in which cigarettes were replenished, the evidence of the three managers of the store who gave evidence differed. It was Ms Jemmett’s evidence, in paragraph 79 of her witness statement, that it happened only about twice a year and that for the rest of the time she just brought out to the shop floor the box in which all of the cigarettes in the safe were kept, and left it to the JH to fill up the gantry. That seemed to us to be likely to be true, as it made sense to us. We saw that (1) Mr Gleiwitz gave no direct evidence about the JH’s involvement in the task, but that he said (in paragraph 55 of his first witness statement) that it was done by a customer assistant, and (2) Mr Woolley’s evidence (in paragraph 176 of his first witness statement) was that the task was always done by the store’s manager or the Cash Controller by the name of Diane asking the person who was at the mainbank checkout to do a list of the brands which needed to be replenished. We accepted that evidence of Mr Gleiwitz and Mr Woolley. However, we rejected Mr Woolley’s evidence that the person at the checkout who replenished the cigarettes was usually Mr Phil Walls, as that was inherently improbable and inconsistent with his evidence (also in paragraph 176 of his first witness statement) that “The daily replenishment of cigarettes was done by a colleague working on the Mainbank Checkout between serving customers.” We saw that the JH’s evidence on this (in paragraph 47 of her witness statement) did not distinguish between the different periods in the relevant period, but we accepted the evidence of the respondent’s witnesses that the practice differed during that period, Case Numbers: 3304495/2018 & others 93 and in any event doubted that there was a substantial difference between (1) listing the brands of which more boxes were needed and replenishing those which were brought out to the shop floor from the safe as a result, and (2) taking packets of cigarettes from a box without such a list having been made and putting those packets in the gantry. In any event, we concluded as a matter of fact that the manner in which the replenishment occurred varied over the relevant period. Mr Woolley was the store’s deputy manager from 5 August 2013 to 8 August 2016, so during the relevant period up to 8 August 2016, the JH would, we concluded, whenever she was working on the mainbank checkout, be asked to do a list of the brands of cigarette which were low or out of stock in the gantry unless that task had been done already by someone else. Ms Jemmett started working at the store on 1 May 2017, and we accepted her evidence on this issue. Therefore during the period from then onwards to the end of the relevant period the JH did a list only about twice a year. At the start of the relevant period and between 8 August 2016 and 1 May 2017, the JH would replenish the gantry in one way or the other. If the IEs need more findings of fact on this then they can ask us to make them, stating in what respect they need a further finding of fact. 45 2.7.3; What happened if a brand ran out in the gantry. We preferred the respondent’s proposed words, which seemed to us to be more apt than those of the JH. If the frequency with which brands of cigarettes ran out in the gantry is relevant, then we saw that the JH’s own evidence on such frequency was in paragraph 47 of her first witness statement and was that “cigarettes do sell out every few weeks”, and that it was Ms Jemmett’s evidence (in paragraph 80 of her witness statement) that it was “unusual” for that to happen and that it occurred “only ... if a particular brand had been forgotten and not included in a particular delivery”. We could not accept that cigarettes would never run out unless they had not been re-ordered, and we concluded that the JH’s evidence on this was therefore more likely to be right. We therefore preferred her evidence on this to that of Ms Jemmett. As a result, we accepted the claimants’ proposed words for 2.7.3 but with the word “couple” replaced by “few”. Paragraph 3; customer service at the checkout 46 The opening words of paragraph 3, namely the first sentence, stated what was in our judgment obvious and therefore we accepted them, with the doubt that they were in fact required. The bullet points below those words were in our judgment, with the one exception to which we refer at the end of this paragraph, unnecessary as they amounted to a repetition of something dealt with somewhere else in the EVJD. Generally, the relevant training materials were capable of giving the best picture of the overall demands of the role. The most relevant one here was C7/75, and that document in our judgment best showed what was required in general terms of a checkout operator to which there was no cross-reference in the opening part of paragraph 3, except for the second bullet point concerning competing demands: the parties’ dispute on this was either of no relevance at all, or of very little relevance, but Case Numbers: 3304495/2018 & others 94 in fact we found the claimants’ proposed words to be more accurate and therefore accepted them. 47 3.1.3; Attending to a customer at an ASC rather than dealing with a problem from the Assistant Station. That which the JH was required to do as part of her work in regard to ASCs was best described in the training materials which the claimants identified in their closing submissions, and, for the following reasons, we accepted that the claimants’ proposed words for 3.1.3 were apt. Ms Jemmett’s evidence in paragraph 85 of her witness statement was about how she saw the JH doing her job, and was to the effect that the JH did not “proactively” approach customers “to demonstrate and coach them in how to use the Self-Service Checkout and its various functions”. Mr Gleiwitz in paragraph 57 of his first witness statement said that he did not encourage that “unless they had to”. The evidence of Mr Woolley in paragraph 77 of his first witness statement was helpful by way of background and we accepted it, but it did not detract from the fact that the JH’s work in this regard was best determined by reference to the parts of the documents at C7/29, C7/50, C7/61 and C7/65 to which the claimants referred in their closing submissions. None of the respondent’s witness statements contained any justification for the figure of 20% proposed by the respondent, as far as we could see: there was no such justification in the paragraphs to which the respondent referred in its closing submissions, and we could find none when we searched the respondent’s evidence digitally for references to 20% (whether using the words “per cent” or the percentage sign). 48 3.1.5; Rebooting of an ASC. Rebooting an ASC or the Assistant Station was plainly part of the JH’s job, if only because of (1) C7/38 read with C7/27, (2) C7/36/2, and (3) C7/41/18. Given that there was no reference there to a silver key of the sort to which Mr Gleiwitz referred in paragraph 58 of his first witness statement, but noting that those documents were all issued in September 2013, shortly after he had left his post at the store, we concluded that his evidence about the need for such a key was applicable only to the period before September 2013. The JH said nothing in that regard, referring in her evidence only in general terms to what happened during the relevant period. That reference was made in paragraph 145 of her witness statement and was in the present tense. However, Mr Woolley said, in paragraph 106 of his first witness statement, that the ASCs were upgraded in August 2016. In the circumstances, both parties’ evidence on the frequency with which the need to reboot arose was (inevitably) highly impressionistic, but in this regard we preferred that of the JH, who was in the best position to know that frequency and in the circumstance that it did not differ very much from that of the respondent. The JH would have had to call for assistance unless she was at that moment able to go to the ASC or the Assistant Station. In those circumstances, we concluded that the JH would, if she was in practice able to do so, reboot the relevant ASC or the Assistant Station by following the processes referred to in the training materials referred to at the start of this paragraph, and that that was likely to occur once every one to two months. Case Numbers: 3304495/2018 & others 95 49 3.1.6-3.1.10; Working on the mainbank checkout. The JH’s role, and therefore her work for the purposes of section 65(6) of the EqA 2010, in regard to the things which are the subject of 3.1.6-3.1.10, was best shown by C7/75 and C7/151. Those documents contained most of what needed to be said in that regard. To the extent that the subject-matter of 3.1.6-3.1.10 provided an illustrative picture of what C7/75 and C7/151 required of the JH, we made the following findings of fact.

49.1 The claimants’ final proposed bullet point of 3.1.7 was apt if a customer had an unusual difficulty in using the card machine. We saw that all of the respondent’s witnesses who gave relevant evidence on this said that they did not see the JH doing what was stated in that bullet point. She herself said that it was done only rarely. We could see that it might well have happened, but only rarely, and that if it was rare then the respondent’s managers may well have seen it only very rarely. In those circumstances we accepted the proposed bullet point, although we thought that these additional words at the end should be included: “whose disability made accessing it difficult”.

49.2 The respondent’s proposed additional words for 3.1.9 were not helpful and that to which they related was what was described by Ms Jemmett in paragraph 91 of her witness statement, with which (because we accepted that paragraph) we concluded the words of 3.1.9 as contended for by the claimants should be read.

49.3 3.1.10; The carrying of shopping to a customer’s car. We concluded that it was unlikely that the JH would regularly have taken shopping to customers’ cars. That was because of the respondent’s evidence on this issue (principally in paragraph 92 of Ms Jemmett’s witness statement, paragraph 61 of Mr Gleiwitz’s first witness statement and paragraph 236 of Mr Woolley’s first witness statement), which we accepted. However, it was definitely part of the JH’s job to be willing to offer the “Carry Out Service” referred to on C7/143/11, but in our judgment only if it was going to be feasible for the service to be provided. That was borne out by what was said about what to do when a customer asked for help to carry shopping at C7/69/4 in answer to question 21, which was this: “Ask your team leader for assistance as you may not be able to leave your checkout immediately.” It was therefore part of the JH’s job, wherever it was feasible and she judged it appropriate, to offer that service, whether to be done by her or (if she was unable to leave the checkout), a colleague. Given the fact that we accepted the respondent’s evidence on the fact that the JH did not do it, we accepted that the JH offered this service only rarely. In the circumstances, we concluded that the appropriate words for 3.1.10 were these: “It was part of the JH’s work to be aware of the possibility that a customer might benefit from the respondent offering its Carry Out Service as described on C7/143/11, and to offer that service (to be provided by her or a colleague, depending on the circumstances) if it was feasible in the Case Numbers: 3304495/2018 & others 96 circumstances prevailing at the time, for it to be offered. It was so feasible only rarely.” 50 3.2; Mystery shopper. The role of a mystery shopper was in our judgment sufficiently described in C7/184 and C7/785, and the parties’ disputes in respect of 3.2.2 and 3.2.3 were resolved by saying that the role was as described in C7/184 and C7/785. Page 3 of the latter showed that, as Mr Gleiwitz said in paragraph 65 of his first witness statement, a bonus was paid to Express staff if the survey outcome was good (at page 3 there was this text: “Express bonus is 15%”). We concluded that the removal of that bonus would have been obvious to the JH when it occurred, and we therefore concluded that if it did indeed end in June or July 2013 as Mr Gleiwitz said in that paragraph, then the JH would have known about it. There were in the bundle no documents relating to the mystery shopper which were produced after December 2012, although we saw that at C7/143/6, dated 04/13, there was (in the wheel) a reference to the possibility of a mystery shopper visit. There was no later version of that document. Those things tended to support Mr Gleiwitz’s evidence about the mystery shopper, but in any event, given the absence of a reference to bonuses based on mystery shopper visit results during at least the latter part of the relevant period, we accepted it. Therefore, in our judgment the JH was affected by the existence of the mystery shopper programme only until June or July 2013. 51 3.3.2; What the JH was required to do by way of handing out cards containing something like a questionnaire. The evidence of Ms Jemmett in paragraph 96 of her first witness statement was that the JH would not have handed out a “viewpoint” card (as alleged in 3.3.2) or questionnaire but that she would, if she had given customers anything, have given them something under the heading “Every Comment Helps”. The only substantial documentary evidence relating to those words before us was in the respondent’s handbook from 2010 at C7/863/28, where it was said that the words referred to “a feedback tool that lets our customers share their shopping experiences with us”, which included “a comments card” as well as a website with the address “www.tescocomments.com”. At page 31 of C7/863, “Viewpoint” was described as being applicable to the respondent’s staff only. We concluded therefore that Ms Jemmett’s evidence in this regard was correct. The fact that the JH did not remember the correct name of the cards which she said she occasionally gave out cast doubt on the reliability of her evidence about her practice on this, and the respondent’s closing submissions were in our view persuasive about the cogency of that evidence. However, the extent to which the JH in fact handed out comments cards was not determinative here. The issue here was whether it was part of her job to do so, and even on the respondent’s evidence, as referred to in paragraph 61 of Mr Woolley’s first witness statement, it was: “Customer Assistants were supposed to hand out a feedback card to each customer and request that they complete it.” We therefore concluded that the JH’s job was to hand out comments cards to customers, and that the fact that she did not in practice do that unless she was prompted to do it, was not relevant. Case Numbers: 3304495/2018 & others 97 52 Given what we say in our judgment of 12 July 2023 and our second reserved judgment, it will be apparent that we thought that the use in the EVJDs of the present tense was wrong. That was because the issue was what was required of the employee in question by the respondent, and not how well or otherwise the employee did what was so required. Where there was a need to distinguish between different periods, the past tense could have been used and if necessary the relevant periods could have been referred to. Here, the words should be as follows. “It was part of the JH’s work to hand out comments cards to customers for the customer to complete if the customer so wished.” 53

3.4.1 and 3.4.2; Dealing with difficult customers. While we accepted that the JH would, as a checkout operator, face aggression and abuse from customers more frequently than Mrs Worthington did in the course of her work, we concluded that that which was required of the JH in her work for the purposes of section 65(6) of the EqA 2010 in this regard was best described in the documents to which we refer in paragraphs 10 and 11 of our determinations in regard to Mrs Worthington’s work (i.e. in Appendix 1, at pages 34-35 above), namely C7/147/6, C7/683, C7/145/11 and C7/705. We also found what Ms Jemmett said in paragraph 394 of her first witness statement and what Mr Gleiwitz said in paragraphs 68 and 69 of his first witness statement, to be cogent about the frequency with which the JH in fact encountered adverse behaviour from customers. We saw that the JH said in paragraph 162 of her first witness statement that she would encounter aggressive customers when working on the main tills “about once a month at least”. That was the basis for the claimants’ proposed words for 3.4.1. We could not see that the precise number of times when the JH encountered aggressive customers was determinative of the demands of her work for the purposes of section 65(6) of the EqA 2010, since the fact that a customer might be aggressive was a constant factor, albeit that if the occurrence was rare then the demand for that purpose might be less. However, we doubted that the JH was faced with all of the comments stated in

3.4.2 once a month. Nevertheless, we accepted fully that customers did on occasion abuse her, not least because of the training materials to which we refer in this paragraph and the documents referred to in paragraph 8 above. In our judgment the evidence of both parties on this issue was a little tendentious, which meant that we concluded that the respondent’s evidence was the minimum which we should accept but that the reality lay probably somewhere between the positions of the parties. The respondent accepted that the JH would encounter “customers who became difficult or rude at the checkout, on average once or twice a week” and that verbal aggression from shoplifters (only) occurred “on average, less than once a month across the whole of the store and all shifts”. In the circumstances, we concluded that the appropriate words for 3.4.1 were those for which the JH contended, but with the words “approximately once a month” substituted for the words “at least monthly”. As for 3.4.2, we concluded that the respondent’s proposed words should be accepted, as we thought that they were the best reflection of the reality as far as verbal abuse was concerned. Case Numbers: 3304495/2018 & others 98 54 As for

3.4.3 (concerning physical attacks), we found the JH’s proposed words to be the most helpful but without the final three sentences. That is because the parties agreed on the frequency with which physical attacks occurred during the relevant period, and we thought that the JH’s proposed words best set the scene for the assessment by the IEs of the demands placed on the JH in the course of her work at the store except to the extent that the JH suggested that she was herself present when Ms Jemmett was attacked. In that regard, we preferred the evidence of Ms Jemmett, for the reasons stated by the respondent in paragraph 2(d) of its closing submissions on 3.4.3. 55 3.4.4; Inappropriate conduct by customers. We preferred the respondent’s proposed words for this paragraph, which were in our view justified by the submissions made in support of them. 56 We regarded the proposed words of the respondent for

3.5.1 (concerning customer complaints) with the exception of the word “encounters” to be less apt than those proposed by the claimants and we therefore accepted the claimants’ proposed words except that we concluded that the word “encountered” should be substituted for the words “deals with”. That is because we concluded that the word “encountered” best described what occurred. We also concluded that

3.5.2 (concerning how the JH dealt with a customer complaint made in person) was unnecessary given the documents to which we refer in the first sentence of paragraph 53 above. 57 3.6.1; What to do when a customer left shopping on the basis that he/she would return for it later that day. There was very little difference between the parties here. It was impossible to say how many times the agreed scenario occurred. For the sake of simplicity, we concluded that the claimants’ words should be used, with the addition of the word “approximately” before “once a week”. 58 3.6.2; What to ask the customer in that situation. Technically, what happened to shopping which a customer decided after all not to buy had nothing to do with the JH’s work. What was required of her in relation to that shopping was, however, part of her work for the purposes of section 65(6) of the EqA 2010. That was made clear by C7/64, pages 4 and 5 of which in our judgment stated what was required of the JH: by implication that she should “explain to [a customer] that [the JH could] suspend their transaction so that they [could] pay for their items at another checkout or [the JH could] have them looked after until later that day.” It is also said there that “If the customer does not return within 15 minutes, chilled and frozen products must be returned to their department. If the customer has not returned within a few hours, all items must be returned.” In our view, it was implicit in those words that the JH would be required to say something about the potential need to return chilled or frozen items to a chiller or freezer. The JH’s cross-examination on this showed that she would say something to that effect, which supported that conclusion, and we accepted what she said in that cross-examination (on day 11 at pages 154-155). In the circumstances, we concluded that the claimants’ proposed words for 3.6.2 were correct and should be included in full. Case Numbers: 3304495/2018 & others 99 59 3.6.4; What to do if the customer does not return. Given the documents referred to in paragraph 24 of our conclusions on the work of Mrs Worthington (paragraph 24 of Appendix 1, at page [ ]), we concluded that irrespective of the Food Standards Agency’s guidance, the respondent required the application of the 20-minute “rule” referred to in that paragraph. The “15 minute window” in the claimants’ proposed wording is referred to in the document to which we refer in the preceding paragraph above. Accordingly, the claimants’ proposed words for 3.6.4 were apt, and we preferred them to those of the respondent. 60 3.7.1, 3.7.2 and 3.7.3; Helping customers use the ASCs. Reading the additional words proposed by the claimants for

3.7.1 as describing what the JH was required to do as part of her work for the purposes of section 65(6) of the EqA 2010 and in the light of C7/46 and C7/64, we accepted those words, adapted so that they read more coherently, namely as follows: “the JH was required to keep an eye on the Assistant Station” and “The JH was required whenever possible to interact with customers at the ASC to see whether they needed any help”. 61 In the light of that finding, and in any event, we concluded that

61.1 what was required of the JH in regard to the Assistant Station and helping customers use the ASCs was shown most effectively by C7/29, C7/46 C7/50, C7/61, C7/62, C7/64, and C7/65 (four of which were specifically referred to by Ms Jemmett in paragraph 85 of her witness statement) and

61.2 while the claimants’ proposed words for

3.7.2 were not all correct, the thrust of those words was correct, but only if it was understood that the JH was not required to stand around watching customers use the ASCs, but, rather, to keep an eye on them while herself doing something productive such as replenishing around the mainbank checkouts when she was not required to serve a customer there. We concluded that the words should be these. “The JH was required (as shown by C7/29, C7/46 C7/50, C7/61, C7/62, C7/64, and C7/65) whenever it was practicable to do so to see from a distance whether customers using the ASCs needed help and, if they did, to approach and offer to help them. If they did need help, the JH would be required to show the customers how to do what they were trying to do with a view to increasing their confidence in the system and avoiding the customer having the same problem in the future.” 62 Similarly, reading

3.7.3 as a statement of what was required of the JH in her work, it was in substance correct. However, it was not literally correct as one cannot serve two customers at the same time. We concluded that that paragraph was unnecessary Case Numbers: 3304495/2018 & others 100 in the light of the words which we have just stated should be used for 3.7.2. Accordingly, 3.7.3 should be omitted. 63 3.8.3; Damaged items at the checkout; This subparagraph was, as the respondent contended, a duplication of 3.8.1 and 29.6. 64 The dispute about

3.9.1 (concerning customer price inquiries) was narrow: it was about frequency. Neither side had anything concrete with which to back up their estimates. However, the JH’s first witness statement referred (in paragraph 57) to a number of items as having been the subject of a customer’s price query, and we found it hard to believe that there would have been a need for the queries given that it was our experience that the price of most items was discernible from the shelf label or the item itself. We doubted that the precise number of times that a customer asked for the price of an item to be ascertained was material if it was a frequent occurrence in any event, and we also doubted that the task of checking the price was onerous, given that the respondent’s till systems merely required the JH to scan the item’s barcode and only if the barcode was faulty put in the numbers below the barcode. In the circumstances, we concluded on the evidence before us that both parties had overstated their cases and that somewhere in the middle between them was apt. We concluded that the opening words of 3.9.1 should be these: “Usually daily, and more frequently when the store was busy, including during seasonal periods”. 65

3.9.2 (concerning customers leaving an item at the checkout at which the JH was working). The respondent proposed that a specific cross-reference was made here to the part of the EVJD dealing with the Cold Chain. For the avoidance of doubt, the cross-reference here should be to paragraph 24 of our factual determinations in regard to Mrs Worthington’s work, i.e. Appendix 1 (on page 38 above). 66 3.10.1, 3.10.2, and 3.10.4; What to do in the event of a queue of three or more customers. The dispute here was about the extent to which the JH was required when there was a queue of three or more customers to take positive steps to reduce the queue, including by seeking to persuade customers to use the ASCs. This was, we concluded, a dispute which related to the “I don’t queue” policy of the respondent, and was best resolved by saying that C7/200 showed what was required of the JH, and that the first sentence of

3.10.1 should be amended so that, after “(of three or more customers)”, there were these words instead: “the JH would be required to take the steps referred to at C7/200/2 and might also seek to persuade customers who were queuing at the mainbank checkout to use an ASC”. The dispute about frequency did not need to be resolved given H31 and the fact that even the respondent agreed that the issue would be likely to have arisen every shift, which was consistent with our own experience, so that the event was best described as happening “frequently”. 67 In the light of what we say in the preceding paragraph above,

3.10.2 was superfluous. Case Numbers: 3304495/2018 & others 101 68 3.10.4: the JH was required by e.g. C7/132/2 to be the first to acknowledge that a customer has had to wait, and the implication of that was that the JH would have been required to apologise for the fact that a customer had had to wait. That was borne out by what was said at the bottom of C7/75/1 (“Staff would acknowledge me and apologise if I have had to wait”). Whether or not the JH would then also thank them for their patience seemed to us to be immaterial. What was required was shown by e.g. C7/132/2 and C7/75/1, i.e. a courteous and helpful approach and an acknowledgement of, with an apology for, the need for the customer to wait. 69 3.11.2; Customer leaving items mid-transaction. There was here a dispute about frequency. It was in our view likely that on average once per shift a customer would leave a till mid-transaction to get items which he/she had forgotten, and the parties were only marginally apart on that issue of frequency. Reading 3.11.2 as a description of what was required of the JH, and the opening words as “On average once a shift”, we preferred the claimants’ proposed words, but whichever words were more accurate, H31 showed that the correct description for the purposes of the IEs was “frequently”. 70 3.12.1; Dealing with lost property. There was a middle way here too. Common sense suggested that high value lost property would be put away safely, and that low value lost property which could be accommodated behind the checkouts would be put there initially but then be put away to see if it was claimed at a later date. Ms Jemmett’s evidence in cross-examination, as referred to by the respondent in its submissions on this paragraph, was consistent with that. The work of the JH in any event included dealing with lost property and taking steps to ensure that it was capable of being returned to its owner, including by taking reasonable steps to ensure that it was not mislaid or stolen while it was in the respondent’s possession. Given (1) the respondent’s own proposed words concerning frequency and (2) H31, we accepted the claimants’ first proposed word for 3.12.1 (“Regularly”). Otherwise, the factual situation was best described by what we say in this paragraph. Nevertheless, the obligation of the JH in regard to lost property was stated at the bottom of the right hand side of C7/135/5, which was to “hand it to a manager or a member of the Tesco Security team.” Thus, 3.12.1 should be in these terms. “The JH regularly had to deal with customers’ property which they had inadvertently left behind. The JH was required (see C7/135/5) to hand it to a manager or a member of the respondent’s security team.” 71 3.12.2; How to check that high value lost property belongs to the person claiming it. We accepted the respondent’s evidence on the subject-matter of this paragraph, as it most accorded with our understanding (on the balance of probabilities) of what occurred in practice in regard to items of high value. Thus, we accepted the respondent’s proposed words for 3.12.2. 72 3.12.4; Customers leaving shopping at the till. The dispute here was about what the JH would do if a customer left something at the till: make a decision herself about Case Numbers: 3304495/2018 & others 102 what to do with it or ring for assistance from a manager or shift leader. It was obvious that the JH would have had to do something in regard to shopping which had been but left behind: either deal with it herself or seek the assistance of a manager, and on the balance of probabilities we concluded that the claimants’ proposed words best reflected the reality of the situation. Thus, we preferred those words to those proposed by the respondent. Paragraph 4; Scanning items 73 4.1.3; Using the hand-held scanner. Given H31, the parties were in our view best regarded as being in substantial agreement about the correct description of the frequency with which the JH would use a hand-held scanner: “frequently”. The respondent in our view wrongly asserted that a customer would be expected to move an item to locate the barcode for scanning: that was not consistent with the respondent’s Making Moments Matter policy, evidenced for example at C7/140. The documentary evidence on the use of a hand-held scanner was sparse, but we concluded that question and answer 3 on C7/90 read with C7/79/1 were sufficient to show that the hand-held scanner had to be used whenever possible when a heavy item was put through the checkout, and that a customer had no obligation to (but of course might voluntarily) assist by manoeuvring a heavy item so that the barcode could be read by the scanner. In the circumstances, we accepted the claimants’ proposed words for 4.1.3. 74 4.1.5; Scanning an item the price of which has been reduced. The parties disagreed about the frequency with which the JH encountered what appeared to her to be a dishonest attempt to use a price reduction label, but what they both proposed fitted the IEs’ classification at H31 of “occasionally”. However, the claimants’ proposed words in regard to the checking by the JH of the “best before” date was contrary to what the JH said in paragraph 63 of her first witness statement, which was that the JH was in the habit of “checking that the best before date is that day as we would not usually reduce items which still had time left on the best before date”. Nevertheless, the true position was shown by the “Key Point!” at the bottom of C7/163/18, which was this: “Always check the sell by date on the reduced items to ensure the product is still in date.” As a result, we accepted the claimants’ proposed words at the end of the third sentence of 4.1.5. While we saw no reason to doubt the accuracy of the claimants’ proposed final sentence for 4.1.5, we doubted the relevance of that sentence. That was because what was important was what the JH was required by the respondent to do for the purposes of section 65(6) of the EqA 2010, and that was, we concluded, to be to be on the lookout for a dishonest attempt to buy an item below its proper price. That conclusion was fully borne out by the question and answer 5 at C7/112, which was this: “[Question] Tell me the four common ways people steal from Tesco. [Answer] Nesting, Box Swaps, Push Through, and Swapping Reduction Labels.” Case Numbers: 3304495/2018 & others 103 75 The claimants’ proposed additional paragraph, which would be the second indent of 4.1.5, did not seem to us to be realistic. The JH’s work in regard to the proposed new words was best discerned from C7/135/5, which showed that the JH was required to be vigilant at all times. She could not, it seemed to us, realistically be expected to check all of the reduced price items which were shown by the Assistant Station to have been put through an ASC. She could be vigilant only to the extent that the other demands of her work permitted. In the circumstances, we rejected the proposed additional paragraph. 76 The duty of vigilance, however, bore out and justified the claimants’ proposed additional words in the next indent of 4.1.5 (i.e. adapted slightly by us to “by being watchful of customers using the ASCs or”) and we accepted those proposed additional words. 77 As for the words in 4.1.6 concerning observing customers for potential theft by checking that the items scanned were the ones put in the bagging area, but only when the store was quiet, we agreed with the claimants that C7/34 (“Know Your Stuff for Assisted Service Checkouts; Security – Shrinkage”) was relevant. It showed that “spotting and deterring thieves” (which was in the second sentence of the document) was part of the JH’s work, as it was for all of the respondent’s employees, we thought, but the fact that those words were used in a document entitled “Know Your Stuff for Assisted Service Checkouts; Security – Shrinkage” in addition showed that the duty was particularly applicable to any employee such as the JH when monitoring the Assistant Station. We concluded that the words proposed by the claimants were not quite apt, however, and they should instead be these. “The JH was required to be alert to the possibility of theft at the ASCs, so that if the store was quiet then she was required to be particularly vigilant to the possibility of theft by customers at those checkouts in the ways described at C7/34/1.” 78 4.2; Soft keys. We doubted that the description of soft keys in

4.2.1 was relevant to the JH’s work for the purposes of section 65(6) of the EqA 2010. The better way to refer to soft keys was to refer to the training materials in which their use was described. In that regard, we saw that at C7/163 there was a comprehensive guide to the use of a checkout, and that it included descriptions of the various soft keys. We saw that the words of

4.2.2 were in part drawn from either page 6 of that document or another of the respondent’s documents containing the same words. We saw no purpose in those circumstances in the additional words proposed by the claimants for 4.2.1. 79 We could not see why the parties disputed the content of 4.2.4, as they appeared to us to be in substantial agreement on the words of that paragraph. For the avoidance of doubt, we thought that the respondent’s proposed words were better than those proposed by the claimants, and we therefore accepted the respondent’s proposed words for 4.2.4. Case Numbers: 3304495/2018 & others 104 80 4.3.7; Customers at an ASC wanting to cancel their entire transaction. Given the schematic at H31, we concluded that the word “regularly” should be used instead of either party’s proposed words for the disputed part of 4.3.7. 81 4.4.1; What to do if the “not on file” prompt appeared. Given the schematic at H31, we concluded that the word “occasionally” was apt, since it covered both parties’ proposed conclusions concerning the frequency with which the “not on file” prompt arose. As for the rest of the disputed words, (1) question and answer 3 on C7/93, (2) C7/62/4, (3) C7/160/2,

(4) C7/163/19-20 and

(5) C7/384/94 showed what was possible and what the JH was required to do where an item scanned was “not on file”. Although those documents were in part inconsistent, taken together they supported the claimants’ proposed words for 4.4.1 and showed that the respondent’s proposed words were not apt. We therefore accepted the claimants’ proposed words. 82 4.6; Tags or security stickers? The heading plainly had to be changed to “Items with Security Stickers”. Paragraph 5; Till prompts 83 5.1.2; Prompts for tobacco, solvents and lottery. The claimants proposed words showing that till prompts for those things did not appear. At C7/13/5 and C7/14/3 this was said: “In the United Kingdom and Northern Ireland there is not a prompt for tobacco, petrol, solvents or lottery”. The reason why the respondent contended that those words did not apply was the unequivocal evidence to the contrary in paragraph 112 of Mr Gleiwitz’s first witness statement and the less confidence evidence in paragraph 131 of Ms Jemmett’s witness statement. However, when the words at C7/13/5 and C7/14/3 were put to Mr Gleiwitz in cross-examination as recorded in the transcript of day 19 at pages 83-84, he said that “sometimes stores could add on their own prompts to the till that weren’t necessarily corporate, so put their own messages out”, so that “it could be potentially that we had our own kind of bespoke message on there”, but that he did not know whether that was done. That evidence was far from unequivocal, and in any event we preferred the content of the contemporaneous documents. We therefore accepted the claimants’ proposed words for 5.1.2. 84 5.2.3; engaging with a customer who needs assistance at an ASC. This paragraph deals with that which is dealt with in 3.1.3 (about which we make findings in paragraph 47 above) and so should be omitted. 85 Paragraphs 5.5, 5.6, and 5.8-5.10 concerned age-restricted sales. Paragraph 5.9.1 was a repeat of 1.4.1 (about which we make findings in paragraph 21 above) and therefore, we concluded, it should be omitted. For the reasons given in paragraphs 137-138 of our determinations in relation to Mrs Worthington’s work (i.e. in Appendix 1, at page 67 above), the following words should be substituted for the rest of the words of those subparagraphs. Case Numbers: 3304495/2018 & others 105 “The JH’s responsibilities when working on checkouts in regard to age-restricted sales are stated in C7/13, C7/15 and C7/190.” 86 If the IEs need any further finding of fact in regard to age-restricted sales, then they can ask us for it under rule 6(3) of the EV Rules, and we will consider their request. Paragraph 6; “Other Checkout Services” 87 6.1.2; Frequency of E top-ups. Given H31, the parties were in our view best regarded as being in substantial agreement about the correct description of the frequency with which customers asked the JH for a mobile telephone top-up: “regularly”. 88 6.2.8; Voiding a gift card sale. We could see nothing in the evidence before us to justify the conclusion that the JH would (as claimed by the claimants) habitually tell customers who had bought a gift card “the gift card call centre number, details of which are located on the back of the gift card, who can advise on issues and refunds.” The JH’s own witness statement evidence on this was in paragraph 89 of her first witness statement and was merely that she would “explain to the customer how they can get a refund directly from the retailer whose gift card they have bought” only where the customer had bought a card and changed his or her mind about the purchase. In addition, it made no sense to do more than Ms Jemmett said that the JH would do, which was in paragraph 158 of Ms Jemmett’s witness statement and was to say ‘something along the lines of “these are non-refundable, please keep your receipt”.’ The fact that, as Ms Jemmett said there, there is now a till prompt to say that supported the proposition that that was what the JH said. There was no sense in calling a manager, either, as suggested by the claimants at the end of their proposed words of 6.2.8, unless the customer had asked for a refund, and that was consistent with the JH’s own evidence. Accordingly, the words objected to by the respondent should be changed to these: “At the end of each gift card purchase, the JH would say to the customer this, or something similar: ‘These are non-refundable; please keep your receipt.’” 89 In addition, however, C7/94/3 showed that if a customer requested a refund or to exchange a gift card, then the JH was required to inform the customer that the respondent was unable to give refunds on gift cards and, if the customer objected, refer him or her to the card provider’s call centre number given on the back of the receipt for the gift card and if the customer continued to object, “offer them a good will gesture”. However, we suspected that the latter was something which only a manager would be authorised to do, so we concluded that these additional words should be added at the end of 6.2.8 as amended as stated in the preceding paragraph above. Case Numbers: 3304495/2018 & others 106 “If the customer asked for a refund or to exchange the card, then the JH would be required to refer the customer to the card provider’s call centre number given on the back of the receipt for the gift card.” Paragraph 7; Lottery ticket sales 90 We agreed with the respondent that there was no warrant for a reference (in the opening part of paragraph 7) to the JH being required to retain any paperwork. We could see no reference to that in the relevant training materials, which included C7/150, C7/172 and C7/173. As a result, we preferred the respondent’s proposed words for the opening part of paragraph 7. 91 7.1.3 bullet point concerning activating a pack of scratch cards. This was a repeat of 2.6.2 (about which we make findings of fact in paragraph 43 above) and should therefore be omitted. 92 7.2.1; Voiding a lottery ticket. The claimants’ proposed words to which the respondent objected were fully supported by the respondent’s own evidence in paragraph 154 of Ms Jemmett’s witness statement. Those words showed the importance of voiding the transaction within a 30-minute period, and in our judgment were material. We therefore concluded that the claimants’ proposed words should be used. 93 7.3.2; Manner of paying out a lottery win. We could not see any justification for the respondent’s opposition to the JH’s proposed words, given that C7/174/3 showed that at least in August 2008 (and C7/174 was the only document before us relating specifically to paying out lottery prizes) what the claimants proposed for 7.3.2 was possible, and in line with the respondent’s then-applicable policy. It also showed that Ms Jemmett’s explanation for opposing the practice (which was in paragraph 156 of her witness statement; Mr Gleiwitz said words to the same effect in paragraph 146 of his first witness statement) was not supported by the only relevant document before us, although the claimants themselves accepted that the practice ceased “towards the end of the RP”. In any event, we accepted the claimants’ proposed words, with the addition of this sentence as an inserted new third sentence. “In doing so, the JH followed the process described in C7/174.” Paragraph 8; Click and Collect 94 8.1.1; Overview of Click and Collect. The main dispute in regard to “click and collect” related to when the JH started dealing with customers who had items which they had had delivered to the store for collection. Whenever the JH started doing it, she had, it was Ms Jemmett’s tentative evidence in paragraphs 372-377 of her witness statement, started to do so at least by the time that Ms Jemmett started working there. We say “tentative” because Ms Jemmett’s evidence was about what the JH would have done, not what she in fact did do. The JH was clear that she did Case Numbers: 3304495/2018 & others 107 do it, and she gave detailed evidence about it in both her first and her second witness statements (in paragraphs 124-130 and paragraphs 15-23 respectively). In her second witness statement, the JH responded to the fact that her personal development plan dated 20 January 2015 showed (at C5/5/240) that she was going to “ask for training with team leaders on routines and click and collect” and (at C5/5/241) that her next step in that regard was to “learn how to do routines and click and collect” by “Q3”. The only training document before us about how to do click and collect was at C7/211. That document (to which our attention was drawn by Mr Gleiwitz in paragraph 7 of his second witness statement) was dated “07/13”. It was in our view highly persuasive that that document said that if a “Direct customer”, who would be one who was calling to collect a parcel, arrived when the JH was working on “the till”, then the JH was required to do the following things.

94.1 “[A]sk the customer for their order number, surname and postcode.”

94.2 “Contact the Duty Manager who [would] deal with the process of getting the customer their parcel.”

94.3 “Ensure [she advised] the customer of the process so they [were] informed of what [was] happening, asking them to stand to one side whilst [she continued] to serve the other customers in the queue.”

94.4 “If the customer seem[ed] to be waiting for a long period of time contact the Duty Manager to get an update for the customer.” 95 The second page of that document showed that the respondent expected the duty manager to collect the parcel from the secure location where it was kept (which was the store’s cash office here). That made sense to us from a practical point of view, and we accepted Ms Jemmett’s evidence in paragraph 374 of her witness statement that only occasionally was the JH asked by her (Ms Jemmett) or the shift leader to get a parcel herself from the cash office. In any event, we concluded that the words for

8.1.1 should be as proposed by the respondent in its closing submissions with the following words inserted after “via the Bell System”: in accordance with C7/211. 96 8.1.2: The dispute in regard to this paragraph related to whether or not the JH kept a PDA in her pocket at peak periods. We doubted that she did, for the reasons stated in the respondent’s submissions on this point, with which we agreed. Accordingly, we concluded that the extra words for which the claimants contended at the end of

8.1.2 (after “Mainbank Checkout”) should not be included. 97

8.1.3 and 8.1.4: Similarly, we preferred the respondent’s evidence and submissions in regard to both of these paragraphs, since the evidence was itself cogent and the submissions simply reflected that evidence. For the avoidance of doubt, we preferred the respondent’s evidence as referred to in its closing submissions in “click and Case Numbers: 3304495/2018 & others 108 collect” to that of the JH, both because the JH’s evidence was inconsistent with C7/211 and because we found what the respondent’s witnesses said simply to make more sense on a practical level. In any event, we accepted the respondent’s proposed words for 8.1.3 and 8.1.4. 98 8.2.1: There was no substantive opposition to the respondent’s proposed additional words about the time it would take for the JH to use the Click and Collect book instead of a PDA, and we accepted those additional words not only for that reason but also because they were realistic. Paragraph 9; “Taking Payment” 99 9.1.4; Taking payment from elderly or vulnerable customers. We accepted for the reasons given by the respondent in its closing submissions that the JH’s evidence about how she served elderly or vulnerable customers was unreliable. We saw that at C7/165/23 and C7/163/58 it was said that staff operating checkouts “may wish to double check and confirm the amount of cash you have been given before your till drawer opens so that both you and the customer can confirm that amount”, but we could find nothing in the documents before us about how such a double-check was to be carried out. We saw that neither Mr Gleiwitz nor Ms Jemmett recalled (as stated in paragraph 157 of Mr Gleiwitz’s first witness statement and paragraph 163 of Ms Jemmett’s witness statement) seeing the JH even putting notes on the till drawer while she counted out change. In those circumstances, we concluded that the claimants’ proposed words for 9.1.4 should not be included. The only thing of any value in those words, unless it stated the obvious (which it probably did) was the final sentence (“Once all cash has been placed into the correct sections of the drawer, JH ensures the till drawer is closed.”), but if that was to be included then it was best added to the end of 9.1.3. We accordingly determined that that sentence should be so added and the rest of 9.1.4 should be omitted. 100 9.1.6; Counterfeit currency. The dispute about whether or not apparently counterfeit currency would be seized by a manager was surprising. Whether or not such currency would be seized by a manager was irrelevant to the work of the JH, except to the extent that it could cause the JH difficulty. However, since the seizure would be done by the manager, it is difficult to see why the possible aggression which might result from the seizure would be levelled at the JH. In addition, the linking of the frequency with which the question whether currency was counterfeit arose with changes in currency (by which we assume is meant changes in the notes used for the same, i.e. United Kingdom, currency) was in our view unnecessary. In any event, in the circumstances we accepted the respondent’s proposed words for 9.1.6. 101 9.1.12; Processing card transactions. As far as we could see, the manner in which customers used or were familiar with chip and PIN machines during the relevant period, and their familiarity with such machines, may have altered during that period. In fact, even by 2009, as could be seen from C7/83, the use of Chip and PIN machines was the norm. That document contained the best guide to what the use of Case Numbers: 3304495/2018 & others 109 such machines involved (in case it was not already obvious to the IEs). In particular we noted that at pages 4 and 5 there was a description of how to trouble-shoot Chip and PIN machines, and that there was nothing in the text about whether or not a checkout operator should state the total for which payment was required. In our own experience by the time of the hearing before us in 2023, checkout operators had not for a long time stated the amount to be paid. However, Mr Gleiwitz said in paragraph 161 of his first witness statement that in his experience, the JH “would tell the customer how much the total was but would not remind the customer to check the amount to be taken”, and that he did “not think many Customer Assistants did that.” That, of course, was evidence which applied to the first part of the relevant period, as Mr Gleiwitz worked at the store during the relevant period only from August 2012 to June 2013. Ms Jemmett said in paragraph 167 of her witness statement: “In my experience, Siobhan did not always talk customers through every part of the payment process and customers did not expect this as they were familiar with using these card machines. If a customer’s payment did not go through, due to an incorrect pin being entered, a till prompt came up on the Mainbank Checkout and Siobhan asked the customer to re-enter their pin”. 102 Mr Woolley worked the store from 5 August 2013 to 8 August 2016, and his evidence on this issue was in paragraph 114 of his first witness statement, which was in these terms. “I do not recall Siobhan reminding each customer to check the amount on the chip and pin machine when inserting their card as described at paragraph 9.1.12 of the EVJD although this should have been the practice of all colleagues in the Store. My recollection is that Siobhan simply said the total amount owed and waited for the customer to provide a payment method. She might have then prompted the customer to remove their card from the card machine but I do not think she told customers much more about how to use the card machine because it was second nature to most of them.” 103 Accordingly, the respondent’s proposed words were inconsistent with all of the evidence before us, and Mr Woolley’s evidence was to the effect that (1) the JH was in fact required to remind the customer to check the amount on the Chip and PIN machine and (2) the JH did in fact state the amount that was owed. In the circumstances, we accepted the claimants’ proposed words for 9.1.12. 104 9.1.17; Rebooting the Chip and PIN machine. The dispute about this paragraph was resolved by us by reference to C7/41, page 13 of which showed that the respondent’s own documentary evidence showed how to reboot the Chip and PIN machine and stated that it might take “a few minutes for the PIN pad to restart”, and page 14 of which showed that the checkout could indeed be put into “cash only mode to allow customers paying by cash to continue to use it”. We saw too that at the bottom of page 14, this was said: Case Numbers: 3304495/2018 & others 110 “If you are unable to fix this fault yourself, you should communicate this to your Team Leader or Manager straight away so that they can assist in getting the checkout fully operational.” 105 We saw too that on page 15, there was a statement of how to “disable cash only mode”. However, we noted, it was the JH’s evidence (in paragraph 100 of her first witness statement) that she herself did not put the till into cash only mode: that was done by a manager. So, what happened to the till itself in that regard was strictly irrelevant, as it was not the work of the JH to put the till into cash only mode. 106 As for the frequency with which a Chip and PIN machine might need to be rebooted, using the schematic at H31, we concluded that the right word on both parties’ cases was “frequently”, so the precise words concerning the frequency were in our judgment immaterial. However, the fact that the JH accepted (as the respondent’s closing submissions reminded us) in cross-examination on day 11 as recorded on page 208 of the transcript for that day, a new card machine would not break, did not support the respondent’s proposed words about what happened at the start of the relevant period, when the machines changed and were new. It was not evidence that they did in fact break less when they were new. And in our experience new technology is not necessarily less likely to need to be rebooted. In the circumstances, we concluded that the words for 9.1.17 should be these. “Approximately twice a week, a Chip and PIN machine at an ASC or the mainbank checkout would not work, and would need to be rebooted, which was brought about by switching the machine off and on again, or disconnecting and reconnecting the power cable as shown on C7/41/13. If the device continued to be faulty then the JH would be required to ring the bell, seeking help from a manager or a shift leader, and the JH would then either be required to move to another till or to operate the till in cash-only mode.” 107 9.1.20; Applying customer coupons. The manner in which the JH was required to process a coupon which could not at first or second attempt be scanned was the subject of disagreement. The oral evidence of the respondent’s witnesses on this included that of Mr Woolley who, as recorded on page 103 of the transcript for day 14, accepted specifically that a manager was not required to authorise the typing into the till of the numbers below the barcode on a coupon and when it was put to him that “customer assistants could and did just type in the number if it was necessary to do so”, he said: “If the barcode was damaged, yes.” Therefore, the respondent’s submission that Mr Woolley “did not accept that the JH [manually processed a coupon by typing the coupon barcode into the till]” appeared to us to be without a proper factual foundation and therefore wrong. In addition, C7/586 contained, on page 5, this simple instruction under the heading “Key points”: “Scan the barcode, if there is one, or try entering the barcode digits if it won’t scan.” Case Numbers: 3304495/2018 & others 111 108 We therefore accepted the claimants’ proposed words for 9.1.20. 109 9.1.25; Processing supplier coupons. Supplier coupons were referred to at C7/96/12. That document was issued in August 2010. Such coupons were also referred to at C7/165 which, although dated at the bottom of the page “07/10” had at the top of the page a reference to “17/01/2012”. Both of those documents made it clear that it was open to a checkout operator to accept supplier coupons, but with care. If it was in fact the case that (as Ms Jemmett said in paragraph 173 of her witness statement) the JH would ring the bell and call for assistance, then that was not determinative of what her job was. However, in any event, the key thing here was that the JH had to be alert to the possibility of fraud, and if she called for assistance and the transaction was then approved by a manager, then that was part of her work for the purposes of section 65(6) of the EqA 2010, but it was in our judgment relevant that she was not required to do so. We accepted what the JH said about this in paragraph 25 of her second witness statement, which was that she would ring for a manager’s assistance only “if the coupon was not recognised by the till”. In our judgment the second sentence of 9.1.25 should therefore be replaced by these words. “The JH was required to check that the correct item was being purchased. If a coupon was not recognised by the till then she would ring the bell to call for a manager’s assistance.” 110 9.1.28; Misuse of coupons at an ASC coupon slot. Given the terms of 9.2.19, in so far as they were agreed, we agreed with the respondent’s proposed words for 9.1.28. 111 9.1.30; Coupon barcode not scanning at an ASC. Mr Woolley’s evidence in paragraph 118 of his first witness statement that the JH did not have the authority to process a “non scan coupon” was shown to be wrong by the factors to which we refer above in relation to 9.1.20. It was also inconsistent with the agreed position on 9.1.21 to 9.1.23. Accordingly, we accepted the claimants’ proposed words for 9.1.30. 112 9.2.5; Tesco Clubcard. The correct position was shown by C7/167/5, where this was said: “When working at the Checkouts make sure you ask every customer whether they have a Clubcard – they can then benefit from the scheme by collecting Points which quarterly turn into Vouchers that can be put to many great uses.” 113 The respondent’s own position here differed from the position which it took in regard to paragraph 520 of the EVJD for Mrs Worthington, where the words “was expected to ask” were proposed by the respondent. That is different from encouragement, which was all that the respondent proposed for 9.2.5. The opening words for 9.2.5 should therefore be: “The JH was required to ask customers who did not have a clubcard.” Case Numbers: 3304495/2018 & others 112 114 9.2.6; Information given to customers about the Clubcard. On C7/167/5, there was also this statement: “If a customer does not have a Clubcard, tell them the benefits of the scheme and offer them an application form.” As a result, the opening words for 9.2.6 should be these: “If the customer did not have a clubcard then the JH was required to tell them the benefits of the scheme and offer them an application form.” 115 9.2.7; How often the JH helped customers to use their Clubcard. Given that the frequency of a task will be assessed by reference to the scheme at H31, the respondent’s proposed determination of once a month was consistent with that of the claimants: regularly. We therefore accepted the claimants’ proposed words for this paragraph. 116 9.2.18; Processing “Healthy Start” vouchers. Given our conclusion on the importance of training documents and in regard to 9.1.20, we disagreed with the respondent’s position as asserted on those two points in regard to 9.2.18. In contrast, we saw nothing in the claimants’ proposed words for 9.2.18 with which we disagreed, not least because those words were borne out by the training document to which the respondent itself referred, namely C7/586/9. We saw too that C7/96/15 gave additional guidance, which showed how difficulties might arise in deciding whether or not a Healthy Start Voucher could be used. In any event, we accepted the claimants’ proposed words for 9.2.18. 117 9.2.19; Shoppers trying to use a Healthy Start voucher for ineligible products. We saw no reason to disagree with the respondent’s additional proposed words at the end of the paragraph, concerning calling for a manager’s assistance if a customer was dissatisfied, not least because that was consistent with the JH’s evidence about calling for such assistance whenever a similar situation arose, including as described in the preceding paragraph, 9.2.18. 118 9.2.20; ASC customers trying to use Health Start vouchers for ineligible items. C7/63/2 had at the top of the page this (the document being entitled “Know Your Stuff for Assisted Service Checkouts – Using The Checkouts – Paying”): “If customers exceed three scanned coupons or if their coupons exceed 30% of their total transaction, you will need to authorise this. When these limits are reached you will need to authorise any extra coupons. You should explain why this has happened. You should then check that the coupon is valid or that the correct product has been purchased. If the coupon does not meet the requirements, please explain this to the customer and ask them to continue without using the coupon.” 119 On the next page, this was said: Case Numbers: 3304495/2018 & others 113 “If the barcode on a coupon or voucher will not scan, or if there is no barcode, you will need to process this manually. Customers can ask for help by pressing the ‘Can Not Scan Coupon’ key [with a big picture showing where that key was on the till’s screen]. The checkout will need approval. You should assist the customer at the checkout, check that the coupon or voucher is valid or relates to a specific product and explain that you can process the coupon or voucher. If the coupon or voucher does not meet the requirements, please explain this and ask the customer to continue.” 120 Those two pages were in our view the best guide to the aspect of the work which was the subject of 9.2.20, read with the documents to which we refer in paragraph 116 above in relation to 9.2.18. The respondent’s proposed words best reflected the position intended to be dealt with by 9.2.20 and therefore we accepted those words in preference to the claimants’ proposed words. 121 9.3.4; Till receipt roll running low. The claimants’ proposed words for 9.3.4 were inconsistent with the content of C7/41/3, which showed that a “Media Low” message would “appear next to the affected checkout number on the Assistant Station” if the till roll was in danger of running out on an ASC. At C7/164/1 (and C7/209/1, which was a duplicate), this was said under the heading on the left hand side “What You Need to Know/Do”: “When your till roll is running out you will get a message on your screen. This first warning allows plenty of time before your till roll runs out. At a convenient pause between customers you can easily change your existing roll for a new one.” There was then below that this “key point”: “You will still have a significant amount of till roll remaining when the warning prompt first appears. Consider the impact on the environment before changing a till roll.” 122 The respondent’s proposed words for 9.3.4 were in effect a repeat of the agreed words of 3.7.6 and an attempt to make sense of the claimants’ proposed words for 9.3.4. We concluded that 9.3.4 should simply be omitted. 123 9.3.6; Till roll running low. C7/164/1 implicitly required the JH to be alert to the need to change till rolls on the ASCs, and we concluded that the JH was required to do all that was reasonably practicable to avoid any till roll running out. What Ms Jemmett said in paragraph 191 of her witness statement read with C7/164/1 accorded with that conclusion. Assuming that it was not possible to change a till roll before it ran out, then the consequence was, logically, one of the two possibilities referred to in the penultimate sentence of 9.3.6 as proposed by the claimants (which was specifically stated at the top of C7/41/10, but without the obvious and unnecessary words “which affects the customer care they receive”, which we concluded should be omitted from 9.3.6) and the obvious remedy was the final sentence of that paragraph (which was also stated in the same place in C7/41/10). However, as it was also said on C7/41/10: Case Numbers: 3304495/2018 & others 114 “You should communicate what you are doing to the customer and apologise for any inconvenience caused. The customer may not need a receipt however you can reassure them that it will only take a minute to print one for them.” 124 That page also showed that it was only if the customer was the last one to use the till that it was possible to print a receipt (since the relevant command was “Print Last Receipt”). Accordingly, we accepted the respondents’ proposed words for 9.3.6 without the words ““which affects the customer care they receive”, and with this sentence inserted after the words “or none at all.”: “If the customer said that he or she did not want a receipt then the JH was required to say that it would take only a minute to print one.” 125 In addition, this sentence should be inserted after the penultimate sentence as proposed by the respondent: “The JH was required to communicate what she was doing to the customer and to apologise for any inconvenience caused.” 126 9.3.9; Apologising for a till jam. In practice, a jammed till would call for an apology from the person responding to it, and the respondent’s Making Moments Matter policy was clearly engaged in the circumstances, but we thought that the claimants’ proposed words “uses customer care skills” were inapt, since the key was that the JH’s job was to resolve the jam and to do it pleasantly and with courtesy with the result that the words “uses customer care skills” were meaningless in the context. What was required was in our judgment best shown by the words which we have set out in the preceding paragraph above read with C7/693, on page 2 of which it was said that “35% of all service complaints are about checkouts....this is the highest number across all departments in store”. So, in our judgment the words of 9.3.9 should be these. “When resolving a till jam, the JH was required to communicate what she was doing to the customer and to apologise for any inconvenience caused.” Paragraph 10; Bags 127 10.1.1; Offering bags to customers. We concluded that the most apt way of describing what was intended to be described in this paragraph was to say that the JH was required to act in accordance with C7/167, which included the need (stated at C7/167/6) to be aware of the possibility that customers wanted to keep “raw meat and fish separate from cooked meat and fish and bag on their own”, or to pack “like products together for example detergents and toiletries in one bag, fruit and vegetables in another”, or whether they needed a wine carrier or a flower bag. The words of 10.1.1 proposed by the claimants were therefore apt, if read as a requirement to offer rather than a statement that the JH in fact offered the various bags referred to. Case Numbers: 3304495/2018 & others 115 128 10.1.2; Offering to pack a customer’s shopping. C7/167/6 and the document to which the respondent itself referred here, namely C7/84, resolved the dispute about this paragraph. Editorial considerations (concerning stating a requirement to offer rather than the fact that the JH did offer, and stating that the JH would do things rather than that she did in fact do things) aside, the claimants’ words were apt. 129 10.1.4; The new requirement to charge for a bag. C7/689 stated the respondent’s requirements after the bag charge was introduced. It also co-incidentally showed the importance of the JH always asking whether a customer had a Clubcard. The obligation on the JH was to “[a]ssess whether the customer ha[d] their own bags, offer help or ask if they need carrier bags, reminding them there [was] now a 5p charge if they [were] not already aware”. However, unless the customer was a regular one, it could not be known whether they knew about charge unless they were asked whether they knew. Accordingly, the words of 10.1.4 should in our judgment be these: The JH was required to (1) assess whether a customer had his or her own bag(s), and (2) if it appeared that they might need them, ask whether they needed one or more carrier bags, reminding them (unless it was known that they already knew this) that there was now a 5p charge. 130 10.1.5; Bags being taken by shoppers at the ASCs. The only dispute which could reasonably be maintained about the content of this paragraph was in relation to the period of time during which the JH was required to supply bags to customers on request and point out the barcode on the bag, to be scanned by the customer. Mr Woolley said in paragraph 136 of his first witness statement that “this was only done in the Store for a few weeks after the charge was introduced”. The JH herself said in paragraph 27 of her second witness statement that the requirement to do those things reduced over time. We concluded that what the JH said in that regard was accurate if it was read on the basis that there was a requirement which diminished after about a couple of months, but continued to need to be borne in mind by the JH at all times after 5 October 2015 to the end of the relevant period. 131 10.1.8; New ASC machines in 2016. We accepted the respondent’s submissions on this paragraph with the caveat that weight interventions were in our judgment, on the balance of probabilities, temporarily likely to arise after August 2016 and that when they did arise, they needed to be dealt with in the manner described at pages 3 and 4 of C7/61. We therefore rejected the respondent’s proposed additional words “may temporarily have”, and decided that after “authorisation”, the words “in the manner described on pages 3 and 4 of C7/61” should be used in place of those proposed by either party. 132 10.1.9; Resolving weight interventions at the ASCs. The claimants’ proposed words for this paragraph described the effect of those pages of C7/61, and we accepted them, noting that at the end of C7/61/4, this was said: Case Numbers: 3304495/2018 & others 116 “Remember you should never just scan your barcode and walk away without engaging the customer and you should be explaining what has happened in a calm and confident way. Customers will appreciate the effort and time you spend with them and it will prevent the customer from needing help for the same problem in the future.” 133 10.2.2; How to pack a customer’s shopping. For the same reason, applying this time C7/84 and C7/167, to which the respondent itself referred, we accepted what the JH said in the detailed parts of this paragraph, but on the basis that they stated what the JH was required to do as stated above in regard to 10.1.1 and 10.1.2. Paragraph 11; Returns and refunds 134 11.1.2; Processing a refund. We accepted the respondent’s evidence that the JH did not have authority to give refunds, and that she would need to obtain managerial authorisation to give a refund. The only soft key of the sort to which the claimants referred in their proposed text for 11.1.2 which might be relevant which we could find was the “Void item” soft key, as referred to at C7/1/2 and C7/165/15, which was applicable if an item had mistakenly been scanned twice. C7/1/3 might have been relied on as helping to show the requirement for managerial authority for a refund and how the JH had to deal with a double scanning of an item worth (at least in 2010) more than £10, as there, this was said. “Any products that need to be voided over £10 will need supervisor authorisation from a Team Leader. You should let the customer know that you need assistance to remove the product and call for help. You do not need to stop scanning while you wait for assistance because you will be able to locate the product using the arrows when your Team Leader arrives to assist you.” 135 At C7/163/17, it was said that “Any products that need to be removed from a customer’s bill that are £10 or over (or £1 at known critical stores) in value will need supervisor authorisation from a Team Leader.” The text following that was otherwise in the same terms as those of the second and third paragraphs of the passage set out immediately above from C7/1/3. However, the respondent agreed the terms of 3.6.7, which referred to the JH voiding items without authorisation when a customer was unable to pay for shopping or wanted it to be put aside and paid for on the customer’s return. We therefore concluded that that was a separate situation from that which was the subject-matter of 11.1.2. Indeed, the claimants’ proposed words for 11.1.3 were in substance consistent with the respondent’s proposed words for 11.1.2. In those circumstances, we accepted the respondent’s proposed words for 11.1.2. Case Numbers: 3304495/2018 & others 117 136 11.1.3: We could see nothing inherently wrong with this paragraph, since (1) so far as material (i.e. the only controversial part of it was that) it asserted only that the JH checked a receipt to see whether or not a refund could be given, and only then asked for the authorisation of a manager for the refund, after which the JH processed it as authorised, and (2) the latter process was no different in substance from processing a payment (rather than a refund). However, we could see that what Mr Woolley said in paragraphs 148 and 149 of his first witness statement about the manager processing a refund made much practical sense, and we concluded on the balance of probabilities that the JH did not do any more than simply call for managerial assistance when a customer sought a refund. We therefore agreed with the respondent that 1.1.3 should be omitted. 137 11.2.1; Refunding an overcharge. For the same reasons, we accepted the respondent’s proposed words for this paragraph, and rejected those proposed by the claimants, except that we concluded that the claimants’ words in brackets (“a regular occurrence”) were apt, given H31 and the respondent’s acceptance that customers complained of being overcharged about once every three weeks. Paragraph 12; Cash handling 138 12.1.1; Till lifts. Because of what was said at C7/165/37, as set out in paragraph 29 above, we agreed with the respondent’s proposed words of this paragraph up to “accountable for the till lift” except that the figure of £500 needed to be £600. We record here that we thought that it was highly unlikely that a checkout operator would be required to count the cash in the till “roughly” as asserted by the claimants. 139 As for the final words of the paragraph as proposed by the claimants, we accepted the respondent’s evidence that the summary would be completed by the manager, and we could see that verification of the “amount of cash removed” as referred to in both parties’ words for

12.1.1 would in all probability have been evidenced by the JH merely signing the summary. Even though C7/165/38 said that “Both parties complete and sign the takings deposit summary ensuring the date and till number is written at the top”, we thought that that meant that the JH would watch while the manager completed the summary, i.e. witnessed it. We therefore accepted the respondent’s proposed words for 12.1.1. Having said that, we did not see any material difference between (1) witnessing and verifying, and (2) actually completing, the summary. 140 12.1.2; How a till lift was undertaken. It was the respondent’s case that the claimants’ proposed words for this paragraph described a manager’s activity and not that of the JH. However, the respondent also relied on the description of the process in paragraph 153 of Mr Woolley’s first witness statement, which in fact appeared to be the basis of the claimants’ proposed words for 12.1.2. Nevertheless, we could see nothing in the claimants’ proposed words for

12.1.2 which added anything material to Case Numbers: 3304495/2018 & others 118 12.1.1, so we agreed with the respondent that 12.1.2 was superfluous and should be omitted. 141 12.1.4; Completion of hard copy of takings deposit summary. However, we disagreed with the respondent’s contentions in regard to the content of this paragraph. That is because of the words on C7/165/38 which we have set out in paragraph 139 above, and because those words were consistent with the concept of dual control and what the respondent proposed for 12.1.4 was not. We therefore accepted the claimants’ proposed words for 12.1.4. 142 12.1.5; The frequency of till lifts. We thought that the dispute about frequency in regard to this paragraph was unnecessary, given the content of H31. Till lifts were not done “continuously”, so it was appropriate on both parties’ cases to say that they occurred “frequently”. 143 12.2; Till checks. Given our conclusion stated in paragraph 34 above that the JH did not participate in till checks, we agreed with the respondent that the whole of paragraph 12.2 should be omitted. Paragraphs 13 (“Arrivals of deliveries”) and 15 (“Take back”) 144 Given our findings of fact stated in paragraph 16 above that (a) during the period up to 30 April 2017 the JH only occasionally manoeuvred (1) freshly-delivered cages out of the cargo lift at shopfloor level and into the warehouse and (2) empty cages from the warehouse to the cargo lift, and (b) after that she did not do that at all, we concluded that it was not proportionate to address the detailed allegations of the claimants concerning the JH’s work done in relation to deliveries during the relevant period. In fact, we saw no good reason to distinguish for the purposes of section 65(6) of the EqA 2010 between the work done by the JH and any other sample claimant who moved cages and other units of delivery (“UoDs”) which had just been delivered to their intended first resting place in the relevant store. That was because the work was in our judgment the same for present purposes, in terms of the demands made on the job-holder for the purposes of section 65(6). We were fortified in arriving at that conclusion by the fact that like work within the meaning of section 65(2) is work which is “the same or broadly similar”, and in regard to which “such differences as there are between their work are not of practical importance in relation to the terms of their work.” However, irrespective of the terms of section 65(2), we concluded that here, there was no point us making any more findings than those which we had already made in regard to Mrs Worthington. That was because the UoDs were the same so that (1) the difficulties in practice of moving them were the same, and (2) the only material differences between the relevant work done in the various stores consisted in the distances from (i) the place from which the job-holder moved the UoDs to (ii) their intended first destinations, which might in each case be a staging post or it might be the intended final destination. If the IEs require us to make further findings of fact in this regard, then they must inform us pursuant to rule 6(3) of the EV Rules. Case Numbers: 3304495/2018 & others 119 Paragraph 14 (“Unloading Deliveries”, or, as the respondent proposed, “Moving Delivery Cages”) and the opening section of paragraph 16 (“Delivery Breakdown (Pre-Sort)” or, as proposed by the respondent, “Replenishment (Working the Delivery)”) 145 Equally, the cages in which, and the dollies on which, stock was delivered to the store were of the same kinds as the ones which were used at Woolton, and all of the other stores at which the sample claimants worked. It was therefore unnecessary to say more than that our findings of fact in regard to the cages and dollies as used at Woolton so far as relevant (made in paragraphs 41-56 of our determinations relating to Mrs Worthington’s work, i.e. Appendix 1, at pages 45-47 above) applied here. However, there were some specific factual disputes concerning the UoDs which needed to be addressed, and we now turn to them. 146 14.1.2 and 14.1.3; The UoDs. As for the precise type and weights of the cages in which stock was delivered to the store, we saw that the parties were in substantial agreement. However, the parties differed on the extent to which blue (or flat) top trolleys were used by the JH. 147 We noted that here it was the claimants saying that blue top trolleys were used by the JH while the respondent was saying that they were not, whereas it was the respondent which was saying that blue top trolleys were used by Mrs Worthington and the claimants were saying that they were only rarely used by her. We saw too that the JH’s own evidence on this issue, in paragraph 217 of her first witness statement, was simply that she did not recall standard-sized cages being taken to the shop floor from which to replenish, and (2) the respondent’s position (stated in regard to 14.1.3) was that the use of standard cages continued, but decreased after October 2014. This factual issue (of whether or not the JH used blue top trolleys) arose also in the opening part of paragraph 16 and paragraph 16.1.2 and 16.1.3 of the EVJD, so there was repetition of the issue. We resolve it here. Taking into account the things said in regard to those (other) parts of the EVJD as well as in relation to 14.1.2 and 14.1.3, on the balance of probabilities, we preferred the respondent’s evidence to that of the JH on the extent to which blue (or flat) top trolleys were used by the JH. The respondent’s evidence included paragraphs 258 and 260 of Mr Gleiwitz’s first witness statement, which was to the effect that such trolleys were used by the JH to an extent. Since Mr Gleiwitz worked at the store during the relevant period only from its start to June 2013, what he said in paragraph 260 of that witness statement about the period after then was only about the general practice of the respondent in Express stores, so it was not direct evidence about what the JH herself did. However, in that paragraph he did refer to what happened before 2014, and we saw that it was that “colleagues doing replenishment could decant items from the Standard Cages used for deliveries onto flat-top trolleys or Slim Line Cages where necessary”. That was not a statement that such decanting was the norm: only that it was possible where necessary, although (he also said in paragraph 260 of his first witness statement) health and beauty items were “sometimes” broken down in the store’s warehouse Case Numbers: 3304495/2018 & others 120 and put on a blue/flat top trolley and then taken out onto the shop floor. We saw too that Ms Jemmett’s evidence on this was in paragraph 261 of her witness statement and was that the JH “typically just pulled cages onto the shopfloor for replenishment, whether they were Standard Cages or Slim Line Cages”. That is not a statement that the JH never put stock onto a blue/flat top trolley. 148 We doubted that there was any material difference in terms of the demands made on an employee arising from moving items from a cage to a blue top trolley and moving that trolley to the shop floor instead of simply moving a standard-sized cage to the shop floor, but we concluded that in practice, if the inconvenience of moving things to a blue top trolley could be avoided, then it was avoided, whether by Mrs Worthington, or Ms Williams, or any other sample claimant. Here, we accepted that it might have been necessary to move items to a blue top trolley only when stock was delivered on a standard cage, and that from 2014 onwards the use of such cages diminished. In the absence of any concrete evidence about the frequency with which the JH decanted stock onto a blue/flat top trolley before taking the stock onto the shop floor at the store, doing the best we could on the evidence before us, we concluded that she did that (using the terminology at H31) regularly. 149 14.3.9; Receipt of courier deliveries. We accepted the respondent’s proposed words for this paragraph, on the basis that (1) the thing described in 14.3.8, to which 14.3.9 related, occurred about once a week as stated by Mr Gleiwitz in paragraph 246 of his first witness statement, so that at the end of 14.3.8 the words “These deliveries arrived regularly.” should be added, and (2) what Mr Gleiwitz described in that paragraph and what Ms Jemmett described in paragraph 276 of her witness statement was on the balance of probabilities more likely to have occurred than what was described in the claimants’ proposed words for 14.3.9. The rest of paragraph 16 150 16.1.1; Replenishment preparation. We were of the view that it was unrealistic to think that the JH would always need to be told where to start with replenishment. However, it was also in our judgment more likely than not that the JH would usually be told by the person who was line managing her on the day in question the order in which stock was to be replenished. The wording of the respondent was therefore in our judgment apt in so far as it did not refer to frozen deliveries. Whether the JH did in fact work on frozen deliveries was the subject of dispute. We resolve that dispute below, in relation to paragraph 17.2.1, where the dispute was repeated. 151 16.1.2 and 16.1.3; Whether the JH used flat/blue top trolleys. Given what we say in paragraph 148 above, we accepted the respondent’s proposed words for these paragraphs. 152 16.1.5; How the JH replenished from a shrink-wrapped cage. For the reasons given by the respondent in its closing submissions, we accepted the respondent’s proposed words for this paragraph. Case Numbers: 3304495/2018 & others 121 153 16.2.1; Cleaning before replenishment. The respondent’s submissions and proposed words for this paragraph ignored the respondent’s requirement stated for example at C7/142/27 and in C7/234 to clean one’s department as one went along, always using the correct, i.e. respondent-approved and supplied, cleaning products, including diluted Aseptopol. Pages 16-19 of C7/697 were also relevant, and they too showed the importance of using diluted Aseptopol. However, we thought that the requirement to Clean As You Go was not correctly stated in the claimants’ proposed words for 16.2.1. We found the obligation on the JH to clean best stated at pages 1-4 of C7/234, but ignoring the role of a technician in “Case Cleaning”. We found what was said about cleaning gaps on shelves before filling them on both pages of C7/860 (which was, incidentally, a very helpful and detailed statement of the main tasks involved in replenishment in an Express store generally) to be applicable too. Accordingly, 16.2.1 should be in these terms. The JH was required to keep clean the department in which she was replenishing, in accordance with (1) pages 1 to 4 of C7/234, but ignoring for this purpose the role of the technician in the section on ‘Case Cleaning’, and (2) C7/860. 154 16.2.3: Similarly, the JH’s obligations, i.e. her work for the purposes of section 65(6) of the EqA 2010, in regard to the temperature of the chiller cabinets and freezers which she replenished or by which she worked were neatly and accurately described in the right hand column of page C7/187/2. Accordingly, 16.2.3 should be in these terms. “The JH was required to work in accordance with the instructions in the right hand column of C7/187/2 by being vigilant in regard to the temperature of chiller and freezer cabinets in the manner described there.” 155 16.2.4: We agreed with the respondent that the JH was unlikely to have been required to spend 55 minutes every day on cleaning and checking chiller and freezer cabinets. Rather, those things were likely to be done as part of the JH’s work every day, taking less or more time as required from day to day. We therefore agreed with the respondent that 16.2.4 should be omitted. 156 16.4.1; Damaged items and the mess they made. The JH’s obligation to clean up any spills as she went along was best described by reference to pages 1 to 4 of C7/234. We also saw no requirement in that document to inform a manager in the event of finding a spillage which needed to be cleaned up. We accepted that it might be helpful to inform the respondent’s store management of a spillage, but that was another matter. The latter proposition was borne out by what the JH said in paragraph 222 of her first witness statement, which was this: “Should the wasted item be high value or if there are multiple items affected, I inform my Manager.” So, the claimants’ proposed words for

16.4.1 did not fully reflect the reality of the situation in that the JH would not always inform her manager, and that she did not need to do so. Case Numbers: 3304495/2018 & others 122 In any event, the main issue here was the frequency with which the JH would clean up any mess. She said words to the effect that it was daily. The respondent said that that was not correct, and relied in response on the proposition that there was a need for someone (i.e. anyone and not just the JH) to clean up mess only “a couple of times a week across the whole store”. In the circumstances, applying a balance of probabilities, we accepted that the JH would be required to clean up any mess caused by a damaged item a couple of times per month on average which, applying H31, was regularly. As a result of all of the things which we say in this paragraph, we accepted the claimants’ proposed words for 16.4.1 with the first sentence omitted, the insertion of the word “regularly” before “requires” in the second and now final sentence, and the omission of the words “and inform a manager” at the end of that sentence. 157 16.4.2; What the JH was required to do with a damaged item. We saw that the JH said in cross-examination (as recorded on pages 81-83 of the transcript of day 12) that if a damaged item was obviously alright or obviously could not be sold, then she would either leave (or put) it out on display, or put it into the relevant waste cage, and that if there was any doubt in her mind about the matter, then she would ask her manager to decide what to do. That made sense to us, but we saw that Mr Gleiwitz’s evidence was (in paragraph 266 of his first witness statement) that the “expectation was not that [the JH] or another colleague would waste damaged items straightaway” and that whether or not the item was “put in the waste cage” or reduced in price was a decision for the store’s management and not the JH. Ms Jemmett said in paragraph 283 of her witness statement that in the envisaged circumstances the JH would put the item in the waste cage, and Mr Woolley said something to the same effect in paragraph 222 of his first witness statement. In those circumstances, we concluded that the claimants’ proposed words for

16.4.2 best reflected the reality, with the word “can” replacing the first “is” in the second sentence. We record here that C7/197 was an informative and succinct statement of the JH’s responsibilities in regard to “recording waste, storage and disposal”. Paragraph 17; Replenishment 158 We agreed with the respondent that it was necessary for it to be made clear that the JH did not decide whether or not she replenished (rather than, as it was implicitly the respondent’s position, being assigned to work at a checkout): that was a decision to be made by whoever was line managing the JH on the day in question. Accordingly, we accepted the respondent’s proposed words for the opening part of paragraph 17. 159 17.1.1; the impact of the respondent’s Cold Chain policy. Neither party’s proposed words for this paragraph reflected the reality. Replenishment was not a “timed activity” because of the respondent’s Cold Chain policy. The effect of that policy is stated in paragraph 24 of our factual determinations regarding Mrs Worthington’s work (i.e. in Appendix 1, at page 38 above), and as we have concluded in paragraph 68 of our judgment of 12 July 2023, the absence of a disciplinary Case Numbers: 3304495/2018 & others 123 sanction for failing to comply with it was irrelevant. Therefore, the words for 17.1.1 should be these: The replenishment of all chilled and frozen items was subject to the respondent’s Cold Chain policy, which had the objective of chilled items being at ambient temperature for no more than 20 minutes (after which they should be returned to a chilled storage area, including a chilled cabinet on the shop floor), and that policy was applicable to the JH’s work when moving stock from the back door to a holding area and/or to the shop floor. 160 17.1.3; Replenishing alone. We mostly agreed with the respondent’s proposed words for this paragraph, which best reflected what was in our judgment on the balance of probabilities the reality of the situation. We thought that the word “normally” was best inserted before “would” in the second sentence of the respondent’s proposed words. That was because that better reflected what Ms Jemmett said in paragraph 294 of her witness statement and allowed for flexibility, which in our judgment was in practice required. 161 17.2.1, bullet point 1; temperature in the warehouse chiller. The parties’ disputes in regard to the content of this paragraph appeared to us to be about things which the IEs would not take into account, given what was agreed by the parties and that a difference of 30 seconds (whether or not it was that or a minute being the dispute) in connection with a visit to a chiller was unlikely to be material. In addition, we could see no objective justification for accepting either the claimants’ case that it would take up to five minutes, or the respondent’s case, which was that it would take two minutes, to rotate items in the chiller. Having said that, we accepted that it was more likely in the circumstances of an Express Store to take no more than a couple of minutes. We thought in those circumstances that the claimants’ proposed words for the content of the first bullet point of 17.2.1 were the most apt, and we accepted them on the basis that if the IEs need one or more further findings of fact in that regard, then they can tell us under rule 6(3) of the EV Rules. 162 17.2.1, bullet point 2; Did the JH go into the store’s warehouse freezer? We saw that in her first witness statement, the JH responded to the assertion that she did not replenish frozen stock by saying, in paragraph 263, that she did such replenishment on average once a week. None of the respondent’s witnesses said that it was not part of the JH’s work to replenish frozen items, and in our view it plainly was part of her work to do that. However, for the reasons stated below, in paragraph 204 in relation to paragraph 19.2.28, we accepted the evidence of the respondent’s witnesses that the JH did not in practice replenish frozen foods. Nevertheless, it was in our judgment right to record that it was part of the JH’s work for the purposes of section 65(6) of the EqA 2010 to replenish frozen items. Applying H31, we concluded that the JH replenished frozen foods occasionally within the meaning of H31. Thus, we accepted the claimants’ proposed words for the second bullet point of 17.2.1 with the addition of these words at the end (after the existing semi-colon); Case Numbers: 3304495/2018 & others 124 the JH briefly entered the freezer occasionally; 163 17.2.1, bullet point 3; The temperature in the warehouse otherwise. This was a duplication of 1.2.13 and should therefore be omitted. 164 17.2.1, bullet point 4; The temperature on the shop floor. The claimants’ proposed words in our judgment best reflected the reality of the shop floor temperatures. Whether the word “considerably” added anything material was not so clear, but we concluded that the fact that a chiller had to be between one and five degrees Celsius suggested that it did, so we decided that it did add something material. 165 17.2.2; Space on the shop floor. We thought that the claimants’ proposed words stated the obvious, but the degree to which there might be congestion might well have been overstated. Whether it mattered that it had been was not clear to us. We concluded that we should leave the words as they stood and leave it to the IEs to ask us under rule 6(3) of the EV Rules if they needed us to make a specific further finding. 166 17.2.4; Draughts and water leaks in the warehouse. The dispute about this paragraph in our view did not need to be resolved, if only because it is inherent in the use of a warehouse that there will be a back door to it, and that when it is open there will be a considerable draught from it. Leaking roofs are also, it appeared to us, applying common sense and our own experience of life, a risk at all commercial properties. The effects of such leaks on trade, stock, or customer relations, all of which are referred to in the claimants’ proposed words for 17.2.4, were irrelevant here, as far as we could see. If the IEs need more than a finding of the obvious that the warehouse might be cold because of draughts arising from the need to have the back door open to receive deliveries and that any water leaks, of which there were some, could have made the floor slippery, then they can tell us. 167 17.3.1; The equipment used by the JH when replenishing. This paragraph appeared to us to be an unnecessary duplication (since the equipment used by the JH would have to be referred to when describing the various tasks undertaken by the JH and because for example one does not use a cage in the course of replenishment, one replenishes from it) and we therefore concluded that if we had had a role in referring to its contents, we would have decided that it should be excluded. However, for the most part it was agreed. What was not agreed concerned the use of a PDA. However, it was accepted by the respondent that the JH might have been instructed after 2014 to use a PDA to produce a new SEL, so the only dispute was the extent to which the JH used a PDA, which was the subject of 17.3.18. That reinforced our view that 17.3.1 was unnecessary. The dispute concerning the use of a PDA is resolved by us below, where we refer to 17.3.18. 168 17.3.9; What the JH did with a kick stool if asked by a customer for assistance. The dispute about the manner in which the JH dealt with a kick stool if she was asked Case Numbers: 3304495/2018 & others 125 to help a customer while replenishing and using a kick stool was about things on which we suspected that the IEs would need no determination, since the parties agreed that the JH would have to decide what to do with the kick stool in that situation and might have to carry it around with her to avoid it tripping someone up. As a matter of common sense, however, the claimants’ proposed words best reflected what we thought was required to keep the shop floor of an Express store safe, so that if the JH did not in fact do what was there described, then it was irrelevant for the purposes of section 65(6) of the EqA 2010. That is because what the claimants proposed for 17.3.9 was, we concluded, part of the JH’s work for those purposes. We therefore accepted the claimants’ proposed words for 17.3.9. 169 17.3.13; Standard cages and the use of blue/flat top trolleys. This paragraph contained a repetition of the dispute which we resolve in paragraphs 146-148 above. This paragraph was in any event too general to be of any use. It should therefore be excluded. 170 17.3.15; Moving dollies with green trays on them. Our findings stated in paragraphs 53 and 54 of our determinations in regard to Mrs Worthington’s work (in Appendix 1, at pages 46-47 above) applied here too. The JH had to move dollies in accordance with C7/142/10, which was sufficient to state what the work of moving dollies involved. The words for this paragraph there should be: The JH was required to move dollies in the manner stated at page 10 of C7/142, looking over her shoulder in the manner shown by page 11 of that document in relation to the pulling of trucks and page 8 of that document in relation to the pulling of roll cages. 171 17.3.16; Dealing with a dolly with damaged wheels. We accepted the respondent’s contentions in relation to this paragraph and accepted the respondent’s proposed words in their final form. 172 17.3.18; The extent to which the JH used a PDA when replenishing. We also accepted the respondent’s proposed words for this paragraph in preference to those of the claimants. That was because they were in our judgment more apt and more helpful, and because we accepted the respondent’s submissions in support of them. 173 17.3.21; The occasions when the JH otherwise used a PDA. We found the generality of this paragraph to be unhelpful. Equipment is best referred to when describing the manner in which it is used, and here it appeared to us that the respondent’s submissions about the manner in which the JH used a PDA were apt. By way of illustration, the question of whether the JH used a PDA to do gap scanning was the subject of the dispute stated in regard to paragraph 23 of the EVJD, and therefore the reference to gap scanning here was unhelpful. In the circumstances we concluded that 17.3.21 should be excluded. Paragraph 18; “Replenishment – Customer Service” Case Numbers: 3304495/2018 & others 126 174

18.1.1 and 18.1.2; Interacting with customers generally. These paragraphs were apparently intended to be (and if they were not intended to be, they had to be seen as) a reflection of pages 2-17 of C7/145 and C7/184/2. Those were of course not the only documents where what was required of the JH by way of customer service was described, but in those pages the content of 18.1.1 and

18.1.2 was stated determinatively. We saw nothing wrong with what was stated in the claimants’ proposed words for those paragraphs, as long as it was recognised that those were the requirements of the JH’s job, and therefore part of her work for the purposes of section 65(6) of the EqA 2010, whether or not she complied with all of those requirements fully. In this regard we see that the respondent’s submissions addressed the question whether or not the JH did the things referred to in 18.1.1 and 18.1.2, not whether or not they were properly to be regarded as requirements of her job. The frequency with which the requirement to be ready and willing to act in the ways stated at pages 2-7 of C7/145 and C7/184/2 had to be met was best described (applying H31) as “continuously”. 175 18.1.3; The relevance of the Mystery Shopper. This paragraph is a repeat of 3.2, with which we deal in paragraph 50 above. Paragraph

18.1.3 should therefore be omitted. 176 18.2.1; Being called to assist on the mainbank checkout when replenishing. We rather doubted that some of the matters in dispute here on which we had not already made a decision (and we had already decided whether or not the JH used a blue/flat top trolley when a delivery arrived on a standard size cage and whether or not the JH replenished frozen foods) were material. We thought that the words to the effect that the JH would stay on the mainbank checkout until the busy period was over, stated the obvious, in that we concluded that that was obviously part of her work for the purposes of section 65(6) of the EqA 2010, and we thought that the precise times of the day when the store was busy with the result that the JH might be asked to go on that checkout every 5-10 minutes were immaterial. What was material was the frequency with which that occurred, and it seemed to us on the basis of both parties’ cases that the best description using H31 as our guide was “frequently”. Accordingly, we accepted the claimants’ words for 18.2.1 with the words “frequently, the” inserted after the first comma. If the IEs need us to make a decision on whether or not the period when the JH was most likely to be called upon to assist at the mainbank checkout was (as asserted by the respondent without input from the claimants on the point) between 3.30pm and 6pm, then they can tell us. (We regarded it as important not to overburden the IEs and to give a clear indication to them and the parties about what appeared to us not to be material, if only so that (1) the IEs could correct us if we were wrong, and (2) if we were right then the parties would know that for future reference.) 177 18.2.2; Replenishing high value items. By the end of the hearing, the only dispute maintained about this paragraph was the issue of frequency. The claimants said that the event referred to in this paragraph occurred every few weeks, and the respondent Case Numbers: 3304495/2018 & others 127 said that it happened only occasionally. Given H31, the appropriate word was “occasionally”, which fitted the claimants’ case. 178 18.2.3; What happened if a customer forgot about an intended piece of shopping. We preferred the respondent’s evidence on the issue of how many times the JH would go and get an item for a customer who had got to the front of the checkout queue. We did so because their evidence was in our view, applying a common sense approach and our own experience, simply more likely to be true. We therefore accepted the respondent’s proposed words for 18.2.3. 179 18.2.7; Customers asking whether an item contains “allergens”. The dispute here was about the frequency with which the agreed event occurred. The respondent used the word “rare”, when the JH said that at the start of the relevant period it was about once a week that she would be asked questions about allergens in products. In fact, we found the use of the word “allergens” to be unhelpful, as a customer would probably have asked only about a specific allergen, such as dairy products or gluten. In addition, in our experience during the relevant period allergens were always listed in the ingredients section of edible produce, so it would (as the respondent submitted) be likely to be rare that a customer asked whether a particular allergen was in a particular product. However, the term “rare” in the schematic at H31 was used to describe a frequency of “Annually or less”, which we thought was unlikely. We also thought that the introduction of the respondent’s “Free From” range was not going to reduce the number of requests for advice markedly, if only because some products might contain some allergens, such as dairy products, and be free only from a particular allergen, such as gluten. Doing the best we could on the evidence before us and our own experience of supermarket shopping, we concluded that the right term, applying H31, for the disputed frequency in 18.2.7 was “Occasionally”, and that that term should be applied throughout the relevant period. 180 18.2.8; Stock queries. We saw from paragraphs 239-241 of Mr Woolley’s first witness statement that it was not possible to tell when an item would come back into stock by taking the code for the item from the shelf-edge label (“SEL”) and looking it up using a PDA. We saw too that the original paragraph 18.2.9 was agreed to be deleted, presumably on the basis that the new version of 18.2.8 incorporated the content of 18.2.9. The parties’ submissions differed on the content of 18.2.8. Having weighed them up and taken into account (1) the parties’ respective evidence on the content of that paragraph, and (2) the way that their positions shifted over time, and taking into account the references at C7/145/7 to “Colleagues helping to locate a product in store”, and otherwise being “very helpful”, we concluded that the claimants’ proposed words (set out in their closing submissions, not as stated in the respondent’s closing submissions) were apt and should therefore be used in preference to any other proposed set of words for 18.2.8. 181 18.2.10; Price queries. Even on the basis of the respondent’s own case in regard to 18.2.10, which we accepted, the frequency within the meaning of H31 with which customers asked about the price of an item was “frequently”. Given that factor, we Case Numbers: 3304495/2018 & others 128 accepted the claimants’ proposed words for 18.2.10 but without the words in brackets. 182 18.2.12; What the JH was required to do if an item was out of stock. The claimants’ proposed words were inapt. It was implicit and a matter of common sense that a customer assistant would be expected by the respondent to apologise if an item that a customer wanted was out of stock. That was amply borne out by C7/145/6-11. We concluded that the right words for 18.1.12 were these: If a product was out of stock then the JH was expected to be apologetic to the customer about that fact. 183 18.2.14; How to help elderly, vulnerable and disabled customers. What the JH in fact did by way of helping elderly, vulnerable and disabled customers may not have been precisely what the respondent wanted of the JH and other customer assistants, or it may have gone further than that which the respondent wanted. The respondent agreed 18.2.13, which referred to the JH being required about once a day to help such customers. Plainly the respondent wanted the JH to give such assistance as it was reasonable to give to such customers: that was implicit from all of the documents put before us referring to the respondent wanting its staff to give “great customer service”, those words being on internally numbered page 28 of the document at C7/145, which was part of a longer document in fact, that page being page 2 of the pdf document at C7/145. On that page, we saw that this was said: “As you spend more time in your new role, you will find different ways to delight customers and give them fantastic service that they might not expect. From a quick conversation to a grand gesture, there are many ways that you can go the extra mile and show that you care. You have been employed by Tesco because of your personality and skills.” 184 Given those words and the tenor of the rest of the document at C7/145, we could not see how the respondent could reasonably contend that if the JH did what she said she did, as described in the claimants’ final version of 18.2.14, then she was not doing her job. In that circumstance, we concluded that those words were apt to describe the part of her work to which they related, and we accepted them. 185 18.2.15; The level of service provided to such customers. The same was true of the claimants’ proposed words for 18.2.15. the respondent could not reasonably contend that what was said there was not an accurate description of part of the JH’s work for the purposes of section 65(6) of the EqA 2010, and if only for that reason, we accepted that those words were apt and should be included. 186 18.2.16; Talking to elderly customers. Precisely what the JH did on a day-to-day basis was, we repeat, not the central issue. What was required here was that she be willing to engage with customers in the manner shown by pages 6-11 of C7/145, including in particular the reference on page 7 to “A friendly chat with a colleague”, Case Numbers: 3304495/2018 & others 129 and that there was therefore an inevitable tension between that requirement and the requirement to replenish as quickly as possible, in line with our finding stated in paragraph 55 of our judgment of 12 July 2023. In those circumstances, we accepted the claimants’ proposed words for 18.2.16. 187 18.2.17; Carrying out to a customer’s car. Given

187.1 the existence of the respondent’s “Carry Out Service” referred to on C7/143/11, which is “A service to help customers out to their cars if they have heavy bags of shopping”, but that

187.2 on that page it is said that “Not all services are available in every store or format”,

187.3 on page 3 of C7/143 the respondent’s values were said to include that “No one tries harder for customers”, and

187.4 that the store at which the JH worked was on a main road, we concluded on the balance of probabilities that if it was reasonably feasible given the requirements of the operational requirements of the store, it was part of the JH’s work to help an elderly or vulnerable customer by carrying out the customer’s shopping to his or her vehicle, whether at the request of a colleague or a manager, or on the JH’s own initiative. However, we doubted that the requirement arose very often, and concluded that the best description of the frequency was “occasionally”. In those circumstances, we concluded that the words to be used for 18.2.17 were these. “Occasionally, the JH would be required to help elderly or vulnerable customers by carrying out their shopping to their vehicles.” 188 18.2.20 to 18.2.22; Difficult and/or aggressive customers. The way in which the JH was required to interact with customers in general terms was as described in paragraph 7 of our determinations relating to Mrs Worthington’s work (in Appendix 1, at pages 32-33 above). While some parts of that paragraph refer to things which were plainly not applicable to the store at which the JH worked, such as the RAC Breakdown Service referred to at C7/143/11, in general, the principles referred to in paragraph 7 of Appendix 1 applied to the work of the JH.

the summary.

[189]So did the principles referred to in paragraph 10 of Appendix 1 (at page 34 above). As for the frequency with which the JH encountered aggressive or angry customers, we concluded that both parties overstated their cases to an extent. We concluded on(1) the basis of both parties’ evidence,

(2) the balance of probabilities and

(3) the basis of our own experience of shopping at supermarkets, that the word “occasionally” best described the frequency with which the JH had to deal with an aggressive customer, but that the frequency with which she encountered merely difficult ones was best described as “regularly”. Whether those things were material Case Numbers: 3304495/2018 & others 130 was another matter, since the agreed fact that the JH might encounter a difficult, or even an aggressive, customer, was a constant factor. 190 18.2.24; Cleaning while replenishing. The frequency with which the JH was required to clean up a spillage as a priority was accepted by the respondent to be “up to once a week”. The claimants said that it was on average once a day and up to three times per shift. Here too we concluded that both parties overstated their cases to an extent. We concluded on the balance of probabilities that the frequency was several times a week, and not every shift, so that the right word to describe the frequency was “frequently” and that the words in brackets in the claimants’ version of the paragraph should be omitted. 191 18.2.26; Cleaning of shelves etc. Given what was said at pages 1 to 4 of C7/234, but accepting that the JH was not “regularly involved in the Case Cleaning routines” (those words being in the “Trainer’s Note” section at the top of C7/234/3), we concluded that the claimants’ proposed words for 18.2.26 in substance best reflected the reality of the situation as far as the work of the JH for the purposes of section 65(6) of the EqA 2010 was concerned. We accordingly accepted the substance of those words in preference to those proposed by the respondent. The wording for 18.2.26 should, we concluded, be this. The JH was required to apply the requirements of pages 3 and 4 of C7/234 by cleaning shelves, racking, display cabinets and shelf edge stripping, either if she could see that it was necessary to do so, or if she was asked by a manager or shift leader to do so. When cleaning shelves, the JH would move products on the shelf as she went along, removing them if necessary to clean any spillage. Paragraph 19; Replenishment – tagging and putting out stock 192 19.1.2; Security stickers. We assumed that there was a dispute between the parties about whether or not the JH applied security stickers or tags because the use of a security tag was more involved than the use of a security sticker. We saw that the evidence of the JH (in paragraph 253 of her first witness statement) was that she had to apply stickers, and not tags. We saw too that the respondent’s proposed words for 19.1.2 showed that the respondent accepted that the JH had to put out stickers with electronic layers (those words were not used, but the respondent accepted that a sticker needed to be deactivated, which meant that a sticker had to have an electronic layer to be effective) and that the claimants asserted that the difference was editorial only. In those circumstances, we concluded that the correct term was “sticker” and not “tag”. 193 19.2; Putting out stock. The respondent proposed that the word “Ambient” should be inserted before “stock” in that heading. We concluded on the evidence before us that the JH could be required by the respondent to put out any kind of stock. That was the replenishment part of her work. We therefore accepted the claimants’ proposed words for 19.2. Having said that, we could not see how the value of the Case Numbers: 3304495/2018 & others 131 JH’s work for the purposes of section 65(6) of the EqA 2010 could differ according to the stock which she replenished, unless putting out cold stock was more demanding, but even then if one wore more clothing then it would be hard to see how it could be more demanding just because the stock and storage for it was colder than the ambient temperature. 194 19.2.6, 19.2.9, 19.2.13, 19.2.14 and 19.2.26; Did the JH use a blue/flat top trolley when replenishing stock that had arrived in a standard cage? We failed to see why it would make any difference whether or not the JH pulled a blue (or flat) top trolley or a standard cage onto the shop floor, except that it might be marginally less easy to pull a standard cage than a blue top trolley. However, given our finding of fact stated in paragraph 148 above, we accepted the respondent’s proposed additional references to standard cages (but not the words in brackets proposed by the respondent for 19.2.9 and 19.2.26, namely asserting rarity). We record here that 19.2.6, 19.2.9 and 19.2.13 described what we thought was obvious, and, in relation to 19.2.14, that it made no difference at all whether or not a customer took something from a standard cage, a slim line cage or a dolly. For the avoidance of doubt, we rejected the claimants’ proposed limiting of references to cages to “slim line” cages in the paragraphs of the EVJD to which we refer in this paragraph. 195 19.2.8; Replenishment of heavy items. We also thought that this paragraph described something which was obvious, especially when the task described was seen in the light of pages 5-12 of C7/142. The things that the JH in fact moved might not have been as asserted by the claimants here. Whether or not that was material, we accepted what the respondents said about bananas, which justified the deletion of the bullet point concerning bananas. However, we saw no reason to think that the JH would never have to open up a box of frozen chips, so we concluded that the bullet point concerning those should remain. The claimants’ calculation of the weight of 24 330ml cans of soft drink as 13kg was plainly wrong: if the liquid weighed the same as water then it would have been 7.92kg plus the weight of the cans, which would have been low. An internet search for the weight of 24 330 ml cans resulted in a figure of 8.6kg. We cannot, and will not, use that figure of 8.6kg unless the parties either agree to its use or fail to put before us another. 196 19.2.10; Replenishing in an aisle. We accepted what the respondent submitted (for the evidential reasons on which the submissions were based) about the manner in which the JH actually replenished as she went along an aisle. However, what was material here was (see paragraph 88 of Lavender J’s judgment in Beal v Avery Homes (Nelson) Limited

[2019] EWHC 1415

, which we have set out in paragraph 21 of our judgment of 12 July 2023) what she was required by the respondent to do, and not whether she in fact did precisely that. In that regard, we concluded that it was the JH’s work for the purposes of section 65(6) of the EqA 2010 to put items out on display as quickly and effectively as possible. It was difficult to tell whether moving things around on a cage would in practice be more effective than simply putting them out on the relevant shelves, working from the top of a stack downwards. We thought that if it was important to the respondent to have customer assistants following a Case Numbers: 3304495/2018 & others 132 particular line in that regard, then it would have been stated somewhere in the training materials. Neither party referred us to any such statement. We ourselves could not find one. The closest that we could find to a document indicating how to replenish from a cage was C7/369, which incidentally stated on page 2 that cages should be put back into the warehouse if the replenisher was called away from replenishing, and less incidentally this: “Stock should be filled directly from the cage onto the shelf.” Not even at C7/241/11 (entitled “Know Your Stuff for Fresh Food Replenishment – How to Fill”) was there a statement about how a customer assistant should replenish from a cage, but that might have been because that document referred to fresh food replenishment. We saw that C7/354, which had the title “Know Your Stuff On Grocery Replenishment – Welcome to Grocery Replenishment”, referred, at page 9, under the heading “6. Where You Can Get More Information/Support” to “Know Your Stuff On Filling”. That document was, however, not before us. Assuming that we had to decide which of the two versions proposed for 19.2.10 was best, we preferred the respondent’s proposed words, if only because they reflected what happened in reality and what was likely to be as effective as anything else, and those words are accordingly to be included in preference to those of the claimants. 197 19.2.11; What the JH did when taking stock from e.g. cages. Having said that, we disagreed with the respondent that the claimants’ proposed words for this paragraph were superfluous. If the detail included by the parties was material, then 19.2.11 added something material, and accordingly should be included. 198 19.2.12; What the JH was required to do when a customer was standing in front of a facing which needed to be replenished. The content of this paragraph described what we thought was obvious, but we accepted that the paragraph should be included for the sake of completeness. The word “regularly”, read in the light of H31, fitted even the respondent’s proposed description of the frequency with which the practical issue referred to in 19.2.12 arose. Since it was the word used by the claimants, we accepted the claimants’ proposed words for this paragraph. 199 19.2.20; (1) How many ambient goods overstock cages were there in the warehouse? (2) Did the JH need to be told whether to replenish from those cages?

199.1 The number of overstock cages in the warehouse was in our view highly unlikely to affect the demands on the JH of her work in relation to ambient goods, not least because replenishment from a backstock cage (which it was Mr Gleiwitz’s evidence in paragraph 325 of his first witness statement) simply meant going to that cage first, and emptying it (if possible) before putting out any stock from a delivery. At least for the majority of the relevant period, the number of overstock cages of ambient goods was (the parties agreed) “up to 6-8”, so for the sake of simplicity we accepted the claimants’ words in that regard. If the IEs agree (as the respondent submitted) that it was relevant that it was Mr Gleiwitz’s evidence (in paragraph 325 of his first witness Case Numbers: 3304495/2018 & others 133 statement) that while he worked at the store (so up to June 2013), there were usually only one or two cages of overstock but 6-8 cages of backstock, then we will make a specific finding on that issue. In the meantime, we decline to do so.

199.2 As for the proposition that the JH’s job was not herself to replenish gaps from the overstock cages in the stock room if she saw any such gaps but instead to wait to be instructed by a line manager to do so, that was plainly wrong, as shown by what the claimants pointed out in their closing submissions was said by Mr Gleitwitz in cross-examination (recorded at pages 118-119 of the transcript for day 19). For the sake of simplicity we therefore accepted the claimants’ proposed words for 19.2.20 in their entirety. 200 19.2.21; Did the JH assist with moving overstock cage stock to backstock cages? The respondent’s contentions on this paragraph included an assertion that the JH did not assist with the activity of managers described in the paragraph. Whether or not the JH did that work, it was of the same sort as bringing items out from the warehouse to the shop floor, so we could not see why it was relevant here. If forced to make a determination, then (1) we saw that Mr Gleiwitz said in paragraph 326 of his first witness statement that the JH “would have done this very occasionally if Store Management asked her to do it and no more than once a month in my view, if that”, (2) we accepted that evidence, and (3) we concluded that the JH had overstated the frequency with which she assisted. On that basis we concluded that the claimants’ proposed words should be included with the word “occasionally” inserted before “assists” and the omission of the words “approximately once a week”. 201 19.2.23; How often did the JH replenish the fresh delivery? We saw that the respondent’s submissions on, and its proposed words for, the content of this paragraph, were inconsistent with what was put to JH in the cross-examination recorded at lines 1-7 of page 54 of the transcript for day 12. We also doubted that the JH would only occasionally (i.e., applying H31, only once every several weeks or months) replenish fresh produce. We thought that the likelihood was that it occurred at least regularly (once a week, or at least once a month), or possibly frequently (i.e. at least several times a week). The JH’s evidence in paragraph 258 of her first witness statement was that when she did overtime she “worked fresh replenishment”, but that she also “contractually worked Friday and Saturday mornings”, when, even on the respondent’s evidence, she might well have “worked fresh replenishment”. Even the respondent’s proposed words for 19.2.26 stated (albeit slightly inconsistently with other words proposed for that paragraph) that the JH “might be asked to replenish fresh deliveries once or twice a week, depending on her shifts”. Ms Jemmett said in paragraph 317a of her witness statement that in her experience, the JH “replenished more Ambient stock than Fresh”, not, for example, “almost all Ambient”. In the circumstances, we concluded that the claimants’ proposed words Case Numbers: 3304495/2018 & others 134 should be accepted but with the words “(which occurred frequently)” inserted after the first occurrence of the words “fresh delivery”. 202 19.2.26 as it stood after the above determinations. As for the rest of paragraph 19.2.26, we thought that it was a repetition of other parts of the EVJD (including the parts relating to the application of the Cold Chain) and therefore it had to be omitted. 203 19.2.27; time taken to replenish fresh deliveries. We doubted that it was material (1) whether or not the JH put stock out alone, and (2) how long it took to put out the contents of a slim line cage containing sandwiches. However, assuming that those things were material, we preferred the respondent’s proposed words for this paragraph, since they best reflected the reality as stated by the respondent’s witnesses, whose evidence on the matters dealt with in this paragraph we accepted. For the avoidance of doubt, we accepted (on the basis that it was on the balance of probabilities likely to be true, given the importance of getting fresh stock out onto the shelves) the evidence of (1) Mr Gleiwitz in paragraph 331 of his first witness statement that even on Sundays the JH would in his experience have been helped to put out fresh stock, rather than being required to do it alone, and (2) Ms Jemmett in paragraph 317a of her witness statement that replenishing fresh produce was in her “experience ... done with another colleague or a Shift Leader”. Those things were catered for by the use of the word “most”. 204 19.2.28; Did the JH replenish frozen foods, and if so, how did she do it? The claimants’ latest proposed words for this paragraph included an assertion that the JH had to ensure that “certain items (i.e. from suppliers who have paid a premium) are placed in a prominent position.” We accepted the evidence of all of the respondent’s witnesses on this paragraph (thus including what Mr Woolley said in paragraph 254 of his first witness statement about frozen foods simply being put out in accordance with the current merchandising plan). We therefore concluded that (1) the JH did not in practice replenish frozen foods, but (2) she could have been required to do so, with the result that it was part of her job but not part of the work that she actually did, and (3) in doing so she would have had to apply the respondent’s merchandising plan. 205 19.2.29; The store’s shopfloor freezer cabinets and what the JH was required to do in relation to them. Plainly, C7/142/26 applied when putting out frozen food. It was therefore better to replace the second sentence of the claimants’ proposed words for 19.2.29 with these words: “In putting out frozen food stock, the JH was required to comply with the instructions stated on C7/142/26.” The number and type of freezers was immaterial as far as we could see, but we saw too that the respondent did not contest the claimants’ assertion in that regard, so we accepted the first sentence of the claimants’ proposed words. 206 19.2.30; Ambient delivery replenishment. We could not see why it was asserted by either party that the number of cages of ambient goods delivered per day was relevant. That was because in our view the material issue was simply for what portion of the JH’s day she was replenishing from ambient cages (assuming that there was Case Numbers: 3304495/2018 & others 135 less pressure on her when doing so than in replenishing fresh or frozen items because of the impact of the Cold Chain policy). Also the times when the work was done were irrelevant unless at one or more points when the work was being done, customers would be kept waiting in a queue longer than was desirable from the respondent’s point of view with the result that the JH might then more frequently have been called to assist at the checkouts. The parties in fact agreed on the times when the JH would normally be replenishing ambient stock. Having said those things, in case it is relevant, we determined the dispute in 19.2.30 in favour of the claimants. That was on the basis that what they proposed for that paragraph was more likely to be accurate than what the respondent proposed, if only on the balance of probabilities taking into account our assessment of the practicalities of the situation and accepting that the use of the word “maximum” in relation to the number of cages replenished per shift (the claimants claimed that the maximum was 5 and the respondent said it was 3) meant that the number of cages might well have been less than 5. In addition, assuming (which we doubted) that the issue was material, the parties were not very far apart on the maximum length of time that the JH spent on replenishing ambient stock. 207 19.2.31; What the JH did in relation to milk deliveries. We accepted on the balance of probabilities and taking into account the rest of the evidence before us, that the JH would not have routinely been required to “[work] the milk delivery as soon as it [had] been received”. That was because she might well have been required to work on a checkout instead. As a result, we accepted the first sentence of the respondent’s proposed words for this paragraph. As for the respondent’s proposed second sentence, it was largely supported by the evidence of Ms Jemmett and Mr Woolley in the paragraphs of their witness statements to which the respondent referred in its closing submissions, and in part supported by the evidence of Mr Gleiwitz to which the respondent referred there. However, it was impossible to conclude from that evidence that (as claimed in the second sentence of the respondent’s proposed words for 19.2.31) milk cages were always put in the warehouse chiller and that replenishment from them took place only in the afternoon. Nevertheless, the claimants’ proposed words for the second sentence of 19.2.31 did not make sense and were not supported by paragraphs 264 and 265 of the JH’s first witness statement. We concluded that the second sentence should therefore be simplified and be this. “The JH would be required to replenish milk from existing stock in the warehouse first, and to put newly-arrived milk cages in the warehouse unless there was insufficient stock in the warehouse from which to replenish the shop floor stock, in which case the JH was required to replenish from the freshlyarrived cages. An alternative way to describe this task, with those practicalities in mind, is that it was one of replenishment as necessary.” 208 19.2.37; Flower replenishment. As is often the case, a picture tells a story much better than words. C5/10/33 did that here. That picture supported the respondent’s proposed words for 19.2.37 rather better than those proposed by the claimants. In Case Numbers: 3304495/2018 & others 136 addition, we accepted from the other evidence before us that flowers were delivered only as part of fresh deliveries. In the circumstances, we accepted the words proposed for this paragraph by the respondent as part of its closing submissions. Paragraph 20; “Replenishment Practices” 209 We found summary paragraphs such as the opening words of paragraph 20 unhelpful, as they were repetitious. The opening words of paragraph 20 should therefore be omitted. 210 20.1.2, 20.1.4 20.1.6, 20.1.9, 20.1.10: Given our findings stated in paragraphs 83.1, and 122 of our findings of fact in regard to Mrs Worthington’s work, i.e. Appendix 1 (at pages [ ] and [ ] respectively above) we concluded that it was part of the JH’s work to ensure that stock was rotated. Whether or not she did that was immaterial. It was her job to do it. For the avoidance of doubt, the words for all of the paragraphs referred to at the start of this paragraph should be these. The JH was required to check date codes and rotate stock as shown by C7/249, C7/142/28 and pages 24-26 of C7/697. 211 20.2.1; Replenishing items in retail-ready packaging. The first dispute in regard to this paragraph was a repeat of the dispute about whether or not the JH used a blue/flat top trolley when replenishing stock delivered in a standard cage. We could not see how the UoD in which retail-ready stock was delivered could be relevant here. Nevertheless, for the avoidance of doubt, we record here that we concluded that the words “unit of delivery” should be substituted for “Slim Line Cage or blue top dolly” in the claimants’ proposed first sentence of this paragraph. 212 As for the second disputed part of 20.2.1, namely whether or not it would be obvious that stock had been delivered in retail-ready packaging, we accepted the respondent’s proposed words as they best reflected the reality as shown by C7/262/4, where the word “quickly” was used in the first indent. 213 20.2.8; Did the JH put out stock that arrived in a “Merchandise Box”? There was a clear conflict of evidence in regard to the role (or absence of a role) of the JH in regard to what the parties referred to as Merchandise Boxes. We concluded that a decision would need to be made about where the box in question was to be put on the shop floor, and that would be a strategic decision which the store management would be unlikely to leave to a customer assistant and would want to make itself. That factor supported the respondent’s case. So did the evidence of both Ms Jemmett and Mr Gleiwitz. Ms Jemmett said this (in paragraph 311 of her witness statement): “We did not generally replenish these displays, given that the items are typically either new products, seasonal products or products on promotion (for example, Easter Eggs)”. Case Numbers: 3304495/2018 & others 137 214 That made sense. So did what Mr Gleiwitz said (in paragraph 351 of his first witness statement) about the relevant practical factors, which was this (and the words which we are about to set out were followed by the statement that “Dealing with these displays was a Store Management task”): “I do not agree that Siobhan replenished and set up items in a Merchandise Box and then placed the empty box in the re-usable equipment area in the warehouse or basement. As I have said, we did not use the basement during the Relevant Period and Merchandise displays came pre-assembled with their contents in them. They did not usually require replenishment as they were for new items, seasonal items or promotions.” 215 Given all of those factors, we accepted the respondent’s evidence and submissions on 20.2.8 and concluded that that paragraph should not be included in the EVJD for the JH. 216 20.6.2; Point of Sale signs. The dispute in respect of the words of this paragraph was about who did what in practice in relation to what the respondent called “Point of Sale” signs. The dispute was for present purposes resolved by C7/248/9, which showed (in the second half of the page) that it was the job of the replenisher (not the store’s management as such) to “replace any Point of Sale that you can see has fallen off” and “[i]f any Point of Sale is missing” to “request new Point of Sale from the Price Integrity office”, which here meant the store’s management. In addition, just above those words, it was said that it was “part of our job [as opposed to that of the Price Integrity team] to ensure that the Point of Sale is maintained”. Thus, in our judgment the claimants’ proposed words for 20.6.2 were apt and should be included in the EVJD for the JH. 217 20.6.4; Shelf-edge labels. The dispute here was about whether or not the JH moved or removed a shelf-edge label (“SEL”). The resolution of that dispute was to say that (as we thought was clear) the JH was required not to move or remove SELs, so we concluded that the paragraph should contain the agreed first sentence with the insertion of these words at the end: “,which the JH was required to leave in place”. 218 Thus, the claimants’ proposed second sentence of 20.6.4 should be omitted. 219 20.6.3 and 20.7.1; The four-point check. As we say in paragraph

83.1 of our determinations relating to the work of Mrs Worthington (i.e. Appendix 1, at pages 52- 53 above), C7/142/24 among other documents showed that it was a requirement for the JH to carry out a 4-point check every time she put out stock on display. The claimants’ proposed words for paragraphs 20.6.3 and 20.7.1 (read as a requirement imposed on the JH, so that it was part of her work for the purposes of section 65(6) of the EqA 2010) were therefore apt and those proposed by the respondent were not. Case Numbers: 3304495/2018 & others 138 220 20.7.3; Printing a new SEL or POS. The JH was plainly required to do something if an SEL or POS was missing. What she was required to do was shown by pages 8-9 of C7/248 and C7/159/1 but updated in the light of the evidence before us, including that of Mr Woolley in paragraph 223 of his first witness statement. Given (1) the content of C7/248 and C7/159, (2) the fact that Mrs Worthington herself printed off SELs and POSs when necessary (see paragraph 89 of our determinations relating to her work, i.e. Appendix 1, at pages 56-57 above), and (3) the evidence of Mr Woolley in paragraph 223 of his first witness statement, which we accepted, we concluded that the content of 20.7.3 should be this: If a SEL or POS was missing or inaccurate, before 2014 the JH was required to inform the store’s management of that fact and after then she was required to use a PDA and the store’s printer and print out a new SEL or POS (as the case may be). 221 For the avoidance of doubt, if the JH did not in fact without being prompted or asked to do so print out SELs or POSs, then that was irrelevant for present purposes. 222 20.9.1; Was the JH always required to carry out a WIBI check? The claimants’ proposed words for this paragraph were apt, given the terms of C7/188 and for the reasons stated in paragraph 83.10 of our determinations relating to Mrs Worthington’s work (Appendix 1; see page 55 above). 223 20.9.2; How was a WIBI check conducted? C7/188 stated definitively the JH’s primary responsibilities in regard to the carrying out of, and the result of the application of, the WIBI check. The dispute maintained by the respondent in regard to the claimants’ proposed words for 20.9.2 was about something which was minor, but in fact the respondent’s proposed words were consistent with what was said in the box headed “Checking You Know Your Stuff” on C7/188/1, so we accepted the respondent’s proposed words for that paragraph. 224 20.9.3; Typical causes of quality issues. We could not understand what was the purpose of the respondent’s objection to the reference to chilled items being left out of a chiller being a possible cause of a quality issue, not least because of the reference on page 4 of C7/188 to the possibility of discolouration of meat or poultry because of it “not being kept in the Cold Chain”. In fact, the whole of 20.9.3 was superfluous given C7/188, but for the sake of simplicity we decided that it should remain with the words “(see C7/188)” inserted in the introductory part (after “include”). 225 20.9.4; What is required to be done if a WIBI check results in the answer: No? The claimants’ proposed words for 20.9.4 were entirely consistent with C7/188/2. Reading those words as a relevant statement of what was required of the JH (rather than as a statement that she did it), we accepted them. For the avoidance of doubt, we concluded that the respondent’s submission that it was “not within the JH’s remit Case Numbers: 3304495/2018 & others 139 to be making these judgment calls” was not borne out by the evidence of Ms Jemmett on which it relied (in paragraph 327 of her witness statement), and to the extent that Mr Gleiwitz said in paragraph 366 of his first witness statement that it was not within the JH’s remit, we disagreed. That which was within the JH’s remit in this regard was shown by C7/188/2, and Mr Gleiwitz’s evidence was not to the effect that the JH did not on occasion repair minor damage to packaging. Paragraph 21; Promotion changes 226 We came to the conclusion that the JH’s role in regard to promotions was clear from C7/159: she had one, and the respondent’s assertions that she did not were misplaced. Whether or not the JH was required by the store’s management to do the things which the JH said she did was another matter. While we accepted the respondent’s evidence in preference to that of the JH on many material matters, concluding that the JH had exaggerated her part in the work of the store, we concluded that the respondent’s witnesses on occasion under-stated or minimised the JH’s role in the work of the store. Even on the respondent’s own evidence and submissions, the role of the JH included taking part in changing promotional ends. However, C7/159 and the respondent’s witnesses’ evidence on this (paragraphs 368- 372 of Mr Gleiwitz’s first witness statement, paragraphs 258-260 of Mr Woolley’s first witness statement, and paragraphs 360-361 of Ms Jemmett’s witness statement), which we accepted, showed that the JH’s role in that regard was secondary. The JH’s first witness statement contained in paragraphs 283-288 a description of tasks which went further than those which the respondent’s witnesses said the JH did. We concluded that the JH would have done things in regard to promotion ends only if she was asked to do them. That was consistent with the JH’s own words at the start of paragraph 287 of her first witness statement. However, we concluded that only a member of the store’s management team could decide that the relevant Merchandising Plan was to be departed from, so that the rest of paragraph 287 was in our view no more than a statement of the obvious, which was that it was open to the JH to suggest deviations from that plan. 227 Otherwise, the JH’s own evidence was consistent with the proposition that she assisted in giving effect to promotion changes, and did not have any autonomy in doing so. Given the size of the store and the fact that its managers, including Ms Jemmett, worked alongside the JH, we concluded that the claimants’ proposed words for paragraph 21 should be accepted, but with the addition of the words “At the request of a line manager” before “JH helps”. 228 21.1.4; New promotional labels. This paragraph was not about the JH’s work, or sufficiently relevant to her work to be included. We therefore agreed with the respondent that the paragraph should be excluded. 229 21.1.5; New SELs and excess stock. We preferred the respondent’s proposed words, which we concluded reflected the reality of the situation as described by us in paragraph 226 above. Case Numbers: 3304495/2018 & others 140 230 21.1.6; Was it part of the JH’s work to print and put out a new SEL? We concluded that the JH’s work did include on occasion, when asked to do so, printing and putting out SELs. That was because it was implicitly a requirement of the JH to do that, given what was said in the first half of C7/159/3, and because we concluded that the respondent’s witnesses wrongly minimised the JH’s role in regard to the changing of Promotion Ends (“PEs”). We therefore accepted the claimants’ proposed words for 21.1.6 with the addition of the words “At the request of a line manager, the” at their start. 231 21.1.7; Cleaning the shelves on a promotion change. Given that C7/159 expressly referred on page 2 to changing shelf heights, and otherwise on the balance of probabilities (bearing in mind that the respondent’s management were unlikely to fail to ask the JH to help change shelf heights), we accepted the claimants’ proposed words for 2.1.7. 232 21.1.8 to 21.1.10; Merchandise promotion boxes. These paragraphs constituted a repetition of the substance of 20.2.8, and therefore should be omitted. 233 21.1.11, 21.1.12, 21.2, 21.2.1, 21.2.2, 21.2.3, 21.2.4, 21.2.5; Capping shelves. The JH asserted in one place only in her witness statements (in paragraph 289 of her first statement) that she did anything to do with capping shelves. That was a short paragraph, and contained only a brief statement about what she did, and how she did it. In contrast, the evidence of the three relevant witnesses of the respondent was to the effect that none of them asked the JH to assist with putting capping shelves up, and that what the claimants said in 21.1.12 (which was not expressly approved by the JH) about the use of such shelves was wrong, since, they said, capping shelves were used only during busy seasonal periods and not at other times at all. The description of Mr Gleiwitz about the manner in which capping shelves had to be put up was in paragraph 375 of his first witness statement. It was convincing from a practical point of view, and showed (if it was true) that it was at least unlikely that the JH could herself have put up capping shelves, whether on her own or with assistance, using just a kick stool (and not a ladder). 234 We found (1) that evidence of Mr Gleiwitz, (2) the evidence of Ms Jemmett in paragraph 306 of her witness statement and (3) that of Mr Woolley in paragraph 233 of his first witness statement, cogent and credible, and we preferred it to that of the claimant in paragraph 289 of her first statement. Accordingly, we agreed with the respondent that paragraphs 21.1.11, 21.2, 21.2.1, 21.2.2, 21.2.3, 21.2.4, and 21.2.5 should be excluded. 235 We also, on the basis of the respondent’s evidence to which we refer in the preceding paragraph above, accepted the respondent’s proposed words for 21.1.12 but with the word “still” before “in” deleted and the word “some” substituted for the word “most”. Case Numbers: 3304495/2018 & others 141 Paragraph 23; Gap scanning 236 While it was possible, and entirely plausible, that the JH did the gap scanning to which she referred in paragraphs 290 and 291 of her first witness statement, for the reasons stated in those paragraphs, it was also possible and entirely plausible for the reasons stated by Ms Jemmett in paragraph 366 of her witness statement and Mr Woolley in paragraph 269 of his first witness statement, that the JH did not do gap scans. What Mr Gleiwitz said in paragraph 384 of his first witness statement also made much sense from a practical point of view, and, if it was correct about the absence of a function in the PDA during the period when he was present at the store (only up to June 2013) then it undermined the evidence of the JH in paragraphs 290 and 291 of her first witness statement. Of course it was entirely possible that with the passage of time, the JH’s memory was blurred and that she might have forgotten that the PDAs in use in 2012 and 2013 did not show whether or not an item was in stock. What the claimant said in cross-examination about this (which was recorded at page 112 of the transcript for day 12; it included that she had been trained to do gap scanning when she was training to become a team leader) was not borne out by her training record, which was put to her in the next passage of the transcript. In addition, the JH did indeed, as submitted by the respondent in its closing submissions, say in her interview of 28 April 2022, as noted on page 17 of the pdf document at C5/4 (internal page 65) say that she did gap scanning daily, but then in paragraph 290 of her first witness statement she said that she did it weekly. At C7/838 there was a document entitled “Gap Scan Routines”. It referred to gap scanning tasks as being done by a Duty Manager, a Store Manager, or a Stock Customer Assistant, but only by persons in those posts. Those factors undermined the credibility of the JH’s claim to have done gap scanning, and having weighed up the evidence, we concluded on the balance of probabilities that she did not do it. Thus, we agreed with the respondent that paragraph 23 should be omitted. Paragraph 24; Item recalls 237 We accepted the respondent’s submissions on the question of whether the JH would ever have been asked to help with removing from sale any recalled item, with one reservation: we concluded that it could not be said with any credibility or justified confidence that the JH was never asked to assist with the finding and removal from sale of recalled items. However, we accepted that the respondent’s store management would have checked what the JH had done if she was so asked, and would have done the task themselves whenever possible. In those circumstances, we accepted the substance of what the claimants proposed for paragraph 24, noting that the word “rarely” meant (according to H31) “annually or less”. However, we concluded that the words of 24 should be these. Rarely, the JH would be asked by a manager to assist with the urgent recall of an item by helping to remove it from sale and from the store’s warehouse. Paragraph 25; Store closing Case Numbers: 3304495/2018 & others 142 238 25.3.1; Newspaper returns. We found what the respondent’s witnesses said about the task of preparing newspaper returns in the evening compelling even though, as Ms Jemmett accepted when cross-examined on this (recorded at pages 48-49 of the transcript for day 14), the JH was “perfectly capable of doing it” and that there was “no policy that she shouldn’t [do] it”. Ms Jemmett said (in paragraph 409 of her witness statement) that the JH did not do the work when she (Ms Jemmett) was at the store. Mr Woolley said (in paragraph 311 of his witness statement) that the JH did it “no more than once every week to 10 days on average”. Mr Gleiwitz was able say (in paragraph 388 of his first witness statement) only that he did not recall the JH doing it at all. That meant that we concluded it was part of the JH’s work do to it, although she did it only as and when asked by a member of the store’s management to do it, and that was only at most during the relevant period “regularly”. Thus, we accepted the respondent’s proposed words for 25.3.1 with the words “once every week to 10 days on average” replaced by “regularly”. 239 25.4 and 25.4.1; Bakery waste. What Ms Jemmett said in paragraph 410 of her witness statement about the JH recording bakery waste was cogent and persuasive: as it was an activity that affected the store’s “shrinkage”, it was a task which was in practice done only by a member of the store’s management. She was firm when cross-examined on that evidence (as recorded at pages 48-49 of the transcript for day 14). Both Mr Woolley (in paragraph 312 of his first witness statement) and Mr Gleiwitz (in paragraph 389 of his first witness statement) gave evidence to the same effect. This was yet another conflict of evidence. What the JH herself said about it was paragraphs 295 and 296 of her first witness statement. In the second of those she said this: “This task is not done anymore as all bakery waste is now donated to a charity.” 240 However, that made no sense as the recording of the waste was still required, for accounting purposes. That was put to the JH in cross-examination (at pages 118-119 of day 12). Her explanation for that error was that “Bakery waste is still done but it’s called food donations”. That was not in our view a sufficient justification for the error, and we concluded that the JH had not actually done the recording of bakery waste and that what the respondent’s witnesses said in that regard was correct. Thus, paragraphs 25.4 and 25.4.1 must be omitted. Paragraph 26; Checkout closing 241 26.1.1; Mainbank checkout till lifts at the end of the day. We resolve above, in paragraph 34, the dispute between the parties about the extent to which the JH participated in a till lift (or pickup). What we decided as stated in that paragraph was that a till pickup or lift was required to be done under dual control. (We also decided as stated there that a till check did not involve the JH.) Given our conclusions stated in paragraph 34 above, we decided that the claimants’ proposed words for 26.1.1 Case Numbers: 3304495/2018 & others 143 were correct, but with the substitution of the word “by” for “with” in the second (and final) sentence. 242 26.2.1; ASC closure at the end of the day. The parties evidently agreed that the JH would at least sometimes “close” the ASC in the manner described in 26.2.1. We accepted the respondent’s evidence on this and the respondent’s proposed words for this paragraph, which (1) were not markedly different from those proposed by the claimants, but (2) we thought best fitted the reality as shown by that evidence. 243 26.2.2; ASC till lifts at the end of the day. We accepted the respondent’s submissions on the content of this paragraph. One reason for that was that whether or not the JH did overtime was in this context irrelevant. Otherwise, we accepted that the JH would not always be asked to participate in the dual control process, but that it was likely that she would do so. On that basis, the description of the frequency (applying H31) should be “frequently”. 244 26.2.3; Completion and approval of the till lift report. For the reasons given in paragraphs 34 and 139 above, we agreed with the claimants that 26.2.3 should be included. 245 26.2.5; Collection of coupons. We saw that C7/53, dated “09/13”, i.e. September 2013, stated on page 5 that as part of the till lift or pickup, it was necessary to “Remove Coupons From The Coupon Bin”. That page followed one about the note acceptor, to which reference was made in the agreed terms of 26.2.4 (but without stating the effect of C7/53/4, which was that some notes had to be put back into the note acceptor). We therefore concluded that whoever was doing a till lift or pickup was required as part of it to remove coupons from the coupon bin, so that the dispute about 26.2.5 was mistaken, but that that was probably a result of the fact that the parties did not regard the emptying of the coupon bin as being part of the till lift process. We therefore concluded that the coupon bin was emptied by the manager doing the till lift, and witnessed by the JH. For the avoidance of doubt, we concluded that neither parties’ words were apt for 26.2.5 and that the following words should instead be used. The procedure to be followed in carrying out a till lift was stated in C7/53, including by removing coupons from the coupon bin, and the JH was required to witness and verify (by signing) the till lift report. 246

26.3.1 and 26.3.2; Closure of the lottery terminal. There was another conflict of evidence here. It was capable of being resolved in part by deciding whether or not what Mr Woolley said in paragraph 161 of his first witness statement about the need or otherwise to open the scratchcard dispenser was apparently accurate. If it was apparently accurate, then that cast doubt on the credibility of the JH’s evidence that (as she said in paragraph 301 of her first witness statement) she counted the scratchcards which were out on the shop floor (as opposed to being in the store’s safe). That is because the JH said in paragraph 301 of her first witness statement Case Numbers: 3304495/2018 & others 144 that she would count up the scratchcards by unlocking each scratchcard dispenser in turn, but Mr Woolley said this in paragraph 161 of his witness statement. “Contrary to the description given at paragraph

26.3.2 of the EVJD, there was no need to open the dispenser to do the calculation because you can see the number from the portion of the scratchcard that is sticking out of the dispenser. Even had it been necessary to open the dispensers, no Customer Assistants hold the dispenser key.” 247 In addition, it was said by Ms Jemmett when she was cross-examined (as recorded at pages 52-53 of the transcript for day 14), for the first time (i.e. it was not said by her in her witness statement) that “[t]here is no code for shutting down the [lottery terminal]”. That was said in response to this evidence of the JH (in paragraph 300 of her first witness statement). “At around 10pm, I select on the lottery machine screen the ‘Draw Based Reports’ and ‘Scratchcard Reports’. Both reports are printed off on a pink slip {C5/61} which I place by the computer behind the tills for the following day’s Cash Controller to review. Finally, I close the machine by selecting the ‘sign off’ option on the screen and entering the code located in the lottery logbook, which we kept at the side of the lottery machine {C5/66}.” 248 We could find nothing in the documentary evidence before us about shutting down the lottery terminal. As with the position in regard to the carrying out of a till check, that suggested that it was not something which would normally be done by a customer assistant but would instead be done by a member of the store’s management team. 249 The fact that Ms Jemmett did not mention the absence of a need to input a code in her witness statement might have been the result of the fact that the original EVJD for Ms Williams, at H/3/121, merely said this (in paragraph 26.2.4) about the lottery close-down: “JH also closes the lottery station at or around 23:00 This involves closing the Lottery terminal and locking the scratch card dispenser. JH processes and prints the Lottery terminal daily total report which is placed in the office for the following days Manager to review.” 250 At G/82/51 there was a blurred picture of a scratchcard dispenser. That showed that the dispenser’s sections were covered by curved rigid and apparently clear pieces of plastic. There was also a picture of a scratchcard dispenser at C7/162/2, but that was even more blurred. We could not see whether or not the scratchcard number was visible from the part of the next-to-be dispensed card which was protruding from the display. However, it was likely that it would have been. It was also likely that it was possible to calculate how many cards were in the dispenser by taking that number Case Numbers: 3304495/2018 & others 145 and looking at the number of the one which was (for example) at the top of those which were in the safe, and next in line to be put out in the dispenser. 251 The JH said that she caused the print-outs at C5/61 to be printed out. They were apparently summaries of one day’s sales of scratchcards and lottery tickets. Ms Jemmett pointed out that they related to 9 November 2022, which was long after the end of the relevant period, and said (as recorded in lines 19-20 on page 54 of the transcript of day 14) that while the reports did not show who had printed them, she had checked with the JH’s “colleague on the night and he told me that he produced this”. Ms Jemmett then acknowledged that the JH was present on the night when the summaries were printed out. In paragraph 224 of her witness statement, Ms Jemmett said that

251.1 she was “aware that these summaries were not printed by [the JH], but by a colleague called Jack”, and

251.2 she was “not sure why these have been disclosed because, as [she had] said, this was not a task that was done by [the JH]”. 252 At C5/62, there was a photograph of the screen which had been used to generate the summaries. It showed that all that was required was to press two on-screen buttons. 253 If we had been shown a scratchcard dispenser when we visited one of the respondent’s stores, then we would have been able to see whether or not it was possible to see the number of the card which was next to be dispensed without opening the dispenser. Having not had the dispute drawn to our attention at that time, we had to resolve this conflict of evidence on the evidence before us and the balance of probabilities. We did so on the basis that it was rather more likely than not that the maker of scratchcard dispensers (which, we could see from G/82/51, were in the nature of displays) would permit the number on the card about to be dispensed to be seen without the need to open up the dispenser, if only to avoid the need for the dispenser to be opened up unnecessarily, since frequent opening of the dispenser would be a security risk. In addition, the photograph at G/82/51 showed that the whole of the scratchcard which was about to be dispensed was visible through the rigid plastic covering it. 254 Also, it was the clear evidence of all three of the respondent’s relevant witnesses that the job of closing down the lottery terminal and recording the number of scratchcards left in the dispenser was that of the “Cash Admin” person or (if she was not present, which Mr Gleiwitz indicated in paragraph 397 of his first witness statement she would not normally be) the manager (or, as Ms Jemmett said in paragraph 225 of her witness statement, the Shift Leader) on duty at the time, not the JH. We avoided regarding the respondent’s evidence as being stronger that than of the JH because it came from three witnesses rather than one witness, since the respondent’s witnesses might simply have agreed to say the same untrue thing. However, the fact that there were three witnesses giving evidence on the same thing, but applicable to Case Numbers: 3304495/2018 & others 146 different periods, meant that we had three opportunities to assess the reliability of the respondent’s evidence in response to that of the JH. 255 In all of the circumstances, we came to the conclusion on the balance of probabilities, bearing in mind that there was some objective evidence which supported it, that the evidence of the respondent’s witnesses on this issue of the JH’s involvement in the closing down of the lottery terminal and accounting for the remaining scratchcards was accurate, and that that of the JH was not. We therefore accepted that paragraphs 26.3.1 and 26.3.2 should be omitted. 256 26.4.1: The parties disputed whether or not the JH locked the cigarette gantry every time that she worked until the end of the store’s day, and without being asked to do so. We saw that it was Mr Gleiwitz’s evidence (in paragraph 398 of his first witness statement) that it could not be done without the key, and the key was not available to the JH unless she was given it by a colleague. Ms Jemmett (in paragraph 226 of her witness statement) and Mr Woolley (in paragraph 162 of his first witness statement) said that the task would be done by whoever was on the mainbank checkout at that time, and only at the request of a manager. It was the JH’s evidence (in paragraph 304 of her first witness statement) that she would “do this without being asked by the Manager/ Shift Leader as I know it must be done and it’s a quick task”. However, she did not say anything about the need for a key to lock the gantry, but it was selfevident that one was required, and Mr Gleiwitz’s unchallenged evidence in crossexamination (recorded in lines 20-21 on page 134 of the transcript of day 19) was that there was a key locker in which the shop’s keys were kept, and to which he always wanted keys to be returned when they had been used. In the end, we were driven to the conclusion that here too the respondent’s evidence was to be preferred to that of the JH, and we accepted the respondent’s proposed words for 26.4.1. Paragraph 27; “Store Closing” or “Leaving the Store”? 257 We did not see a need to delete or amend the headings to this paragraph, as they both could be read in the light of the now-agreed words for 27.1.1. However, we agreed with the respondent that for the sake of clarity the heading should be “Leaving the Store”. 258 27.1.2; Was the JH ever asked to take home a set of the store’s keys? The JH’s evidence was that she had on about four occasions during the relevant period been asked by a manager closing the store in the evening, when the JH was working, to take the store’s keys home and give them to the manager on duty when she (the JH) next worked. The JH’s evidence on that was not contested, but it was the respondent’s position in this regard (stated in numbered paragraph 1 of its written closing submissions in relation to 27.1.2) that because the JH was not required to take keys home, this paragraph should be deleted from the JH’s EVJD. In fact, we agreed with what might have been the respondent’s position here, which was that if the JH was not required by the respondent to do something as part of her work (or job), then it was irrelevant. However, the respondent’s position was not sufficiently Case Numbers: 3304495/2018 & others 147 precise for us to see whether or not it was taking that line here, and in any event, if the JH was in fact asked by a manager to do something work-related in the course of her working day, then, we concluded, that was part of her work for the purposes of section 65(6) of the EqA 2010, if only because she had just been required to do it. 259 The respondent also contested the inclusion of 27.1.2 on the basis that the JH did not work at store opening, so it made no sense to ask her to take home the keys in the evening, since “it would not be necessary for JH to take the keys out of the Store as they could be left in the Store office, for the Manager to pick up when they started their shift (at which point the Store would be already open)”. That was a cogent submission, and it was borne out by what Mr Woolley said in paragraph 310 of his first witness statement, which was that he “could leave [his] keys in the Store’s key cupboard before a holiday or other day off for a cover manager to use”. It was also said by Mr Woolley in that paragraph that while in her interview of 28 April 2022 of which there was a transcript at C5/4, at pdf page 11 (internal page number 43), the JH “suggested that she would have taken keys home at store closing and then brought them back for store opening”, that “[did] not make sense given that [the JH] did not work back to back shifts like this.” At page C5/4/11, the JH was recorded (at line 19 of internal page number 43) to have said that she would then “come in in the afternoon”, which showed that what Mr Woolley said in that regard was correct. 260 In addition, none of the three managers who gave evidence in relation to the JH’s work recalled the JH taking the store’s keys home. Ms Jemmett did, in paragraph 408 of her first witness statement, say that “ if there was a cover Manager or Shift Leader in the Store, as a result of a manager absence ... it might have been necessary to give the Store keys to different managers approximately three times a year, rather than once a month”, although it was “unlikely” that the colleague who was asked to do this was the JH every time. This, we noted, failed to take into account the factors that (1) the JH would not normally come to the store at its opening time the next day and (2) the keys could just be left in the store’s key cupboard to be picked up the next day, as long as someone other than the person picking up the keys was intended to open the store the next day and had a set of keys in his or her possession to do so. 261 In all of the circumstances, we concluded that the JH’s work did not normally involve her being a keyholder to any extent, not least because of the possibility of a manager leaving his or her keys in the key cupboard just before, for example, starting a period of holiday. Accordingly, we decided that paragraph 27.1.2 should be omitted. Paragraph 29; “Additional aspects of the job” 262 The opening words of paragraph 29 were a repetition of what was said elsewhere. They could therefore reasonably have not been included. If they were to be included, then we agreed with the respondent’s proposed changes to them, for the reasons given by the respondent in its closing submissions. Case Numbers: 3304495/2018 & others 148 263 29.1.1; Did the JH train new customer assistants to any extent? The parties’ dispute about the JH’s role in regard to training new customer assistants was in our view mistaken. We concluded that it was obvious that a new recruit would need to learn from a long-serving colleague such as the JH, and we also concluded that it was part of the JH’s work for the purposes of section 65(6) of the EqA 2010 to help any new recruit who was asked to work alongside the JH by showing the recruit what to do when necessary and answering any questions which the recruit might have. That much was implicitly accepted by the respondent in its second numbered paragraph of its closing submissions in relation to 29.1.1. In one sense, it was also obvious. The only live issue therefore was the frequency with which it occurred. The JH said that it had happened five times during the relevant period (that is, in relation to five new employees), but the respondent pointed out that the JH had at first, in the interview transcribed at C5/4/34, page 133, at lines 13-18, been able to remember the names of only two individuals whom she had helped to “make sure they feel comfortable and knew what the’re doing in their job role as a customer assistant”. In the circumstances, we concluded that paragraph 29.1.1 should be in these terms. Rarely, the JH was required to help to train new recruits to the role of customer assistant by working alongside the new recruit for about a week, with the recruit shadowing the JH so that the JH could show the recruit how do to the tasks which the JH was doing and with the JH being available (1) to answer any questions asked by the recruit about the work and (2) otherwise to give assistance when the JH saw that it was necessary. 264 29.2; “Health and Hygiene”. While we accepted the respondent’s submission that this paragraph was oddly placed, so that if it was right to have a section of the EVJD concerning the conditions in which the JH worked, then it was right to have this paragraph in that section, we could see nothing in the rest of the draft EVJD on matters of health and hygiene. There was a section numbered 34 at H/3/168, headed “Factor 5 – Responsibility for Health & Safety, and Hygiene”, but that section was apparently not intended to be part of the EVJD by the time that of the stage 2 hearing before us, and in any event it was in our view unhelpful for it to be there. Thus, we decided that the subject-matter of 29.2 should stay where it was. 265 29.2.5; Posture when working on the mainbank checkout. C7/79 was the best guide to how a customer assistant needed to work from the point of view of posture and other relevant things at a mainbank checkout in a store. However, the picture at box 39 of C7/0.1/12 of the mainbank checkout at an Express store did not show a chair, and paragraph 63 of Ms Jemmett’s witness statement confirmed that the JH would have to stand when working at a mainbank checkout. The issue of posture therefore had to be addressed on the basis that the JH would stand at the checkout. We concluded that it was sufficient for present purposes for the IEs to discern the demands on the JH arising from working at a mainbank checkout from C7/79 read against the background of the fact that the JH stood rather than sat at the store’s mainbank checkout. Case Numbers: 3304495/2018 & others 149 266 29.2.6; Use of manual handling techniques to avoid injury. The subject-matter of this paragraph was dealt with very effectively by pages 5-12 of C7/142, to which we have already referred in a number of places above. In addition, we found that pages 7-36 of C7/823 (to which we refer in paragraph

83.2 of Appendix 1, at page 53 above) were an almost comprehensive guide to the things that the JH needed to do, or be aware of, in regard to safety in the store. There was expanded guidance on manual handling techniques to be used at pages 9-18 of that document. We thought therefore that the scope of 29.2.6 should be expanded so that it was in these terms. The JH needed to apply the techniques for manual handling and related physical work described at pages 5-12 of C7/142 and pages 9-18 of C7/823, to minimise the risk of injury to her. 267 29.3.1; Food safety issues. The reference to the Cold Chain in this paragraph was superfluous, given what we say in paragraph 159 above. That reference should therefore be omitted. 268 29.4; Cleaning. The reference to the respondent’s Clean As You Go policy in 29.4.2 was in part superfluous, given what we say in paragraph 153 above, but in order to ensure that nothing relevant about cleaning and the matters referred to in 29.4 is omitted from the EVJD for the JH, we record here that in our judgment the content of paragraph 29.4 as a whole was best, and sufficiently, captured by saying this. The JH had responsibility, as did all other members of the respondent’s shop floor staff, for seeking to ensure that all parts of the store were safe for all persons on the premises, through the JH having an individual as well as a shared responsibility for keeping those parts reasonably clean and reasonably free from the risk of slips and trips. The manner in which the JH was required to comply with that responsibility was shown by pages 13-15 and 27 of C7/142. 269 Much of the content of 29.4 was, however, agreed. If and to the extent that it was not, then the dispute was resolvable by reference to those pages of C7/142. It appeared to us that the only substantial difference between the parties was the extent to which the JH herself would clean up any spillage. Whether or not she did, it was plainly her responsibility to be alert to the possibility of spillages and if she became aware of one, either to clean it up herself or to do what C7/142 said needed to be done about a spillage. Thus, neither party’s proposed words for 29.4.1 were in our view correct. Similarly, 29.4.6 unnecessarily referred to the particular places on the respondent’s premises at the store to which the JH went. Wherever she went, she was obliged to do what was required by the relevant pages of C7/142. Similarly she was obliged to take reasonable steps to ensure that any kick stool which she might use was not a trip hazard. That was obvious but was also the effect of what was said about “kickstools” on C7/142/12 and C7/142/13. 270 29.5; The Cold Chain. The description of the effect of the Cold Chain in this paragraph was superfluous, given what we say in paragraph 159 above. Case Numbers: 3304495/2018 & others 150 271 29.6.1; Damaged items. Damaged items and what the JH was required to do with them are dealt with in paragraphs 156 and 157 above. What had to be done with bakery waste (and whether the JH did it) is dealt with in paragraphs 239-240 above. Thus,

29.6.1 was repetitious. However, the respondent’s proposed words for it were in our view more accurate than those proposed by the claimants and, if used, would make sure that nothing material about damaged products was omitted. We therefore accepted the respondent’s proposed words for 29.6.1. 272

29.6.2 and 29.6.4; Recycling of card and plastic. The obligations of the JH, and therefore her work for the purposes of section 65(6) of the EqA 2010, in regard to recycling were helpfully stated at pages 4-6 of C7/262. We concluded that neither party’s proposed words for 29.6.2 and 29.6.4 were correct and that those paragraphs should be replaced by these words. The JH was required to deal with cardboard and plastic rubbish in the manner stated in pages 4-6 of C7/262. 273

29.7.1 and 29.7.2; Dealing with shoplifters. We found the parties’ assertions about the number of thefts per day impossible to accept because, we thought, it will be impossible to know how many thefts per day there are unless either (1) all of the thefts are seen at the time or (2) some thefts are seen at the time and the rest are recorded and seen later. We rather doubted that either of those things occurred. We have already referred (in paragraphs 5, 8 and 53 above) to the main relevant documents showing the conditions in which the JH had to work as far as theft and aggression were concerned and the number of incidents at the respondent’s stores generally. We regarded the matters which were sought to be dealt with in 29.7.1 and

29.7.2 as being best discerned by the IEs from pages 2-6 of C7/147. Plainly, the JH worked in a situation in which there was always the possibility of aggression by visitors to the premises, especially if the visitors were intending to steal rather than buy the things which the respondent sold to the public. Equally plainly, the JH was required to be vigilant to the possibility of theft, and to follow the guidance at pages 3- 6 of C7/147. The presence of a security guard will have reduced but not removed the threat of aggression, and despite the presence of a security guard, the JH was required to be vigilant to the possibility of theft. Accordingly, the words which should be used for 29.7.1 and 29.7.2 were in our judgment these. The JH was required to apply the guidance at pages 2-6 of C7/147 in relation to the risk of theft and aggression by visitors to the respondent’s premises. The risk of aggression was diminished when a security guard was present at the store, which is stated in 1.2.2. 274 29.7.6; Three bells being rung. For the reasons given by the respondent, we agreed that the words of this paragraph (relating to three bells being rung) should be as proposed by the respondent, which were in our judgment merely clarificatory. Case Numbers: 3304495/2018 & others 151 275 29.9; Pest control. The responsibilities of the JH in regard to pest control were the same as those of all of the respondent’s stores staff and were as described at pages 36 and 37 of C7/697. There, reference was made to “the Pest Control Store Support Pack”. That pack was said there to be “available on MyRentokil online”. We concluded that the JH’s responsibilities were to be vigilant to the risk of pest infestation, and that what was said in 29.9.1 and 29.9.3 was consistent with those responsibilities. We therefore accepted them, with the caveat (which did not need to be recorded in the EVJD) that the number of times when the JH would open the store’s back door was less than the JH had contended was the case. Paragraph 30 276 We thought that paragraph 30 was largely repetitive. To the extent that it was and it had not been agreed by the parties, we concluded that it should as a result of being repetition, be excluded. 277 30.1 to 30.10 were in part a repeat of what was said elsewhere: see paragraphs 5-8 and 161-166 above and see the agreed paragraphs concerning lighting numbered 1.2.14 and 17.2.3 (which were in the same terms as each other). We concluded that any part of 30.1 to 30.10 which was not agreed should be replaced by the following statement. The environment in which the JH worked and the risks to her in her workplace are further described in pages 7-36 of C7/823. 278 30.11; Clocking in and out. We agreed that it was part of the relevant conditions in which the JH had to work that she had to clock in and out. Thus, the claimants’ proposed 30.11 must be included. 279 30.12 was a repeat of 1.2.3 (with which we deal in paragraph 4 above) and therefore had to be excluded. 280 30.14 and 30.15 concerning age-restricted sales were a repeat of 5.5 (with which we deal in paragraphs 85 and 86 above) and therefore had to be excluded. 281 30.16; The public-facing role of the JH and its implications. We accepted the claimants’ proposed words for this paragraph with the words “in effect” inserted before “monitoring”. The paragraph as amended is apt here. 282 30.19; The impact of working on the shop floor. Much of this paragraph was a repeat of something said elsewhere in the EVJD. With one exception, the things that were not repeats were apt. The new things that were apt (for which in all cases we accepted the claimants’ proposed words) were

282.1 the second bullet point, (concerning the risk of repetitive strain injury), Case Numbers: 3304495/2018 & others 152

282.2 the fifth bullet point (on handling chilled and frozen items),

282.3 the seventh bullet point (describing the potential hazard of broken glass and spilled liquids, although the risk arising from the latter was minimal), and

282.4 the final bullet point (about the checkout being a confined space). 283 We concluded that the third bullet point (concerning the environment being an “isolated” one when working on a checkout, as one would then be “under constant gaze of customers”) was a statement of the obvious, so while we agreed that it should be included, we decided that it should be included with the qualification that it might be so obvious that it did not need to be included. 284 30.20 (“Deliveries”) and 30.21 (“Replenishment”) were in our view in large part a repeat of what was dealt with elsewhere. We could see nothing new in 30.20. We could see a material addition to what was said elsewhere only in the final bullet point of 30.21, namely the reference to the risk of a crush injury to fingers, but that was, we thought, probably obvious. Nevertheless, we concluded that that final bullet point should be included. Paragraph 31 285 For the reasons stated in paragraph 23 above and in paragraphs 75-88 of our judgment of 12 July 2023, we did not address the content of paragraph 31. Case Numbers: 3304495/2018 & others 153 Appendix 3 Janice Cannon (to whom we refer below in this appendix as “the JH”) The tribunal’s initial determinations of the relevant factual disputes Introduction 1 The questions of what was Ms Cannon’s work for the purposes of section 65(6) of the EqA 2010 and in what relevant conditions that work was carried out, were dealt with by us after we had gone through all of the parties’ contentions on the same issues in regard to the work of (1) Mrs Carole Worthington and (2) Ms Siobhan Williams. For the reasons which we give below, we came to the view while considering the parties’ contentions about the work of Ms Cannon and the conditions in which she did it, that the only just way forward was for us to determine the parties’ disputes in relation to those things by ourselves going back to the beginning and drafting a completely new document stating, and stating only, what we regarded as the work of Ms Cannon for the purposes of section 65(6) of the EqA 2010 and any other facts which needed to be found by us at this stage, having now conducted a stage two hearing. Thus, rather than addressing each and every dispute raised by the parties, whether it could properly be classified as (1) a factual dispute or, instead, (2) a dispute about value, or (if different) (3) a submission, we concluded that the only just way forward was for us to read through the material and evidence before us and state, succinctly but as far as we were concerned sufficiently, the material facts. We also concluded that having done that, we would have to give the parties an opportunity to address our findings in an application for reconsideration if it was in the interests of justice to do so, which might be the case given that we were now taking an approach which involved us in looking at documents to some of which neither party had referred us. (We refer to that opportunity more fully in paragraph 55 of our second reserved judgment, at pages 21-22 above.) The rest of this document is therefore an explanation of the route by means of which we arrived at those conclusions. Our determinations of the JH’s work and the relevant conditions in which she worked are set out in a separate document, which is the fourth appendix to the judgment (i.e. Appendix 4 to our second reserved judgment) to which this is Appendix 3. We have then determined the work and the relevant conditions in which it was done for the other employees whose work was in issue in the stage 2 hearing before us in the same way. Those determinations were made in that way on the basis that it was in our view the only just way to proceed in the circumstances. Paragraph 4: The JH’s working hours Introduction 2 We refer in the heading to this paragraph to “Paragraph 4”. We mean by that paragraph 4 of the EVJD for the JH as it stood after the exchange of closing submissions at the end of the stage 2 hearing which we conducted in March to May Case Numbers: 3304495/2018 & others 154 of 2023. In this document, i.e. Appendix 3, and in the rest of the appendices to our second reserved judgment in which we state our factual determinations relating to the work of the sample claimants, i.e. Appendices 4-7, where we refer to a paragraph of an EVJD which is in dispute, we use bold font to indicate that fact, so that unless otherwise stated, a reference in bold font to a paragraph is to a paragraph of the EVJD which is the subject of the document in which the reference is made. The JH’s working hours 3 Given what we say in paragraphs 79-81 of our second reserved judgment, at pages 28-29 above, we concluded that the JH’s working hours were not relevant to the determination of her work for the purposes of section 65(6) of the EqA 2010. So, in our judgment, the fact that she worked at night was not relevant at this stage. Nor was the fact that she did overtime. 4 If and to the extent that flexibility about starting and finishing times was relevant for the purpose of determining the demands on the JH for the purposes of section 65(6) of the EqA 2010 (and we could not see how it could be relevant to a determination of those demands), then we accepted the claimants’ submissions on it (bearing in mind that Ms Humphreys accepted, as recorded on page 20 of the transcript for day 18, that “the flexibility was not unlimited”) and accordingly that there was limited such flexibility in that the JH was not taken to task about it, but she still had to clock in and clock out. Paragraphs 8-13: Job purpose 5 Since we needed to make findings of fact about matters in dispute, and the purpose of the JH’s job was not a matter of fact but a label, we declined to resolve any dispute about the content of paragraphs 8-13. In fact, the content of those paragraphs consisted of a series of cross-references to other parts of the EVJD, which was unhelpful in that it involved repetition. Paragraph 21: The warehouse at the store at which the JH worked (“the F&F warehouse”) 6 The part of the warehouse at the store at which the JH worked (it was the Watford Tesco Extra store, to which we refer below as “the store”) in which the merchandise which the JH was engaged to replenish was kept, was called by the parties the F&F Warehouse. It was asserted in paragraph 21 that it was “in an industrial setting”. That was a label the purpose of which escaped us, but in any event it was, if at all relevant to the claims, evaluative only, and therefore not relevant at this stage. We therefore declined to decide whether or not the F&F Warehouse was in an industrial setting. Paragraph 24: The dispute about when deliveries of F&F clothing arrived Case Numbers: 3304495/2018 & others 155 7 The dispute in paragraph 24 was repeated in relation to paragraphs 43 and 58. We return to this dispute below, in relation to paragraph 43. Paragraphs 25-27: The F&F department on the shop floor at the store 8 The content of paragraphs 25-27 related in the main to the context in which the JH worked, i.e. the F&F department on the shop floor at the store, and the extent to which that department’s layout changed from time to time. We could not see that such context (or layout) was of more than peripheral relevance, since any changes to the department were likely to be self-evident, so that even if the JH was not involved in making them, they will have been reasonably easily discernible by her. As for the claimants’ proposed use (in paragraph 27) of the term “merchandise onto” as opposed to “make space for on” the shop floor, we initially considered that it was meaningless as (1) it appeared initially to us to be simply a label for a part of the work done by the JH and (2) the question for us was what was that work. However, given the training materials to which we refer below in this document, we concluded that the word “merchandise” was in the context of this case properly to be understood as a verb and as having a particular meaning in regard to the JH’s work. For the reasons given below, we say no more here about that meaning. Categorisation of clothing Paragraph 30 9 The dispute in paragraph 30 concerned the distinction between what the respondent called “Essential” or “Hanging” items. The dispute was a repeat of the dispute stated in regard to paragraph 120. We initially intended to deal with that dispute below, therefore. Paragraph 31 10 The dispute maintained in regard to paragraph 31 (concerning the proportion of deliveries of mixed clothing to the store) was a repeat of the one maintained in regard to paragraph 70(a). We also therefore initially intended to deal with that dispute below. Structure of the JH’s shifts Paragraph 32 11 The parties disagreed about the impact on the order in which things were done by the JH during her shifts of any handover note left for the JH and her colleagues by the JH’s line manager. That line manager was for most of the relevant period (from June 2014 to 31 August 2018) Ms Humphreys. The parties maintained a dispute about the content of those handover notes, but not in relation to paragraph 32. The dispute about the content was maintained in relation to paragraph 38, and we refer to that Case Numbers: 3304495/2018 & others 156 dispute below, when stating our initial conclusions on the factual matters which were disputed in relation to that paragraph. 12 The claimants proposed for paragraph 32 words which implied that the JH decided what she would do during her shift, but in the light of the contents of the handover note left by her line manager. The respondent’s proposed words for paragraph 32 stated that such a handover note would be left for the JH for 90% of her shifts, and that there might be “other specific instructions and/or priorities provided by her manager (which were provided for 75% of the JH’s shifts).” We could see no evidential basis for those precise percentages. They were necessarily estimates in the absence of any documentary record, and we could not see any such record. 13 Ms Humphreys said in paragraph 39 of her first witness statement that she introduced handover notes for the Night team of which the JH was a part, “containing instructions such as which tasks and/or areas of the floor each colleague should prioritise, and any other relevant information ... to ensure that there was a seamless continuation of the F&F team’s rolling duties as between the Day and Night teams, respectively, and vice-versa.” She continued (in paragraph 40 of that witness statement): “A typical handover note included a list of tasks and priorities for each of the individual colleagues on shift, as well as commentary on anything arising during the Day shift that might impact them. For example, I acknowledged if the floor was particularly untidy, or the delivery was larger than normal, since that could affect the time it took to process the delivery or tidy the F&F floor, respectively. ... The handover always included some instructions for the team, however brief.” 14 In paragraphs 43 and 44 of her first witness statement, Ms Humphreys then said this. “43. When I worked until after Janice [i.e. the JH] had arrived at 8pm I was able to speak to her in person about any specific priorities for the shift. However, given that she typically stuck to a predictable routine in terms of her core tasks, subject to limited variables such as the timing of the delivery and the condition of the shop floor, the amount of instruction and direction required was generally very limited. 44. I also left a handover note covering Janice’s Sunday shift, although this was often less detailed, as I generally did not work on Sundays and it was not necessarily clear to me when writing the note on a Saturday evening what exactly would be required by the Sunday afternoon, as that depended upon the condition of the floor when the store closed to the public. I was, however, able to allocate each F&F colleague an area of the shop floor to tidy.” Case Numbers: 3304495/2018 & others 157 15 The JH’s evidence on this aspect of the matter was in her first witness statement and was as follows. “32. As set out in paragraph 39 to 40 of my EVJD, my Thursday shifts are subject to a number of variables, including whether Pre-sorted items from a previous shift require Replenishing, whether the delivery is late or missing, and whether I am asked to do ad-hoc tasks. The tasks I do on any particular Thursday, and the order in which I do them, changes depending on those variables. I don’t have control over this, and no two shifts are the same, even if the tasks which make up a shift are similar. I have seen an F&F training material video saying the same thing, that there is no typical shift {C7/604}. 33. For example, Alison [Humphreys] might have asked me to start by processing the delivery in her handover note, but if the delivery has not arrived at the start of my shift, then I wouldn’t be able to do so. In that event, I would think about what else needed doing in the department, and I might start on Availability, Replenishment or Recovery. I could easily have been halfway through a task when the delivery arrived and, in that situation, I would stop what I was doing to process the delivery, going back later to finish the other task. Therefore, during my Thursday shifts I would organise my time and tasks around shifting variables and talk to my colleagues about how best to do this. I stand by how this is described in my EVJD at paragraph 40.” 16 At C7/605/2, this was said. “Working in F&F is great fun, and each day will be a little bit different. Throughout the next few sections we’re going to take you through how your role in F&F relates to each phase of the replenishment cycle: Prepare, Present and Put Back.” 17 On page 4 of the same document, this was said (the bold font emphasis being in the original; all text in bold in the quotations set out below is original). “At F&F no two days will be the same. There are many varied elements to the role and you could find yourself doing a range of activities.” 18 On page 5, this was said. “All roles and activities are designed with providing the best customer service in mind. We aim to delight our customers and create a visual and theatrical experience for them in store.” 19 On page 7, this was said. Case Numbers: 3304495/2018 & others 158 “At F&F we follow a 24 hour cycle of routines and daily activities. This gives you a familiar workload schedule to follow throughout the week. When starting your day, check the Daily Planner and the Floor Walk to understand what activities you should be completing at different times throughout the day and week. Ask your manager to show you the Daily Planner and Floor Walk.” 20 On page 9, this was said. “The Prepare phase deals with products coming into the store including deliveries, pre-sorting products and tagging them. lf you work in a store that uses RFID, the Prepare phase also includes RFID portals and RFID counts.” 21 There was no date on C7/605. Neither party referred us to C7/605 in connection with Ms Cannon’s work; it was referred to in closing submissions by the parties only in connection with the training which Ms Oz might, or might not, have received; that was at page 80 of the respondent’s closing submissions relating to the training of Ms Oz. 22 We refer below in this appendix and in the next one in the series, Appendix 4, to several other documents in the series of which that document was one. They were all referred to in the index to the hearing bundle as being dated “01/07/2019". Those were documents C7/612, C7/616, and C7/619. We saw that there were in addition similar documents, which were also stated in the index to have been dated 1 July 2019, which related generally to replenishment, and not just replenishment of the F&F department. Those other, similar, documents, included C7/626, C7/632, C7/635, C7/638, C7/640, C7/641, C7/643, C7/651, C7/653, C7/654, C7/656, C7/658, C7/660, C7/664, and C7/667. All of those were part of a series of documents, which were at C7/522 to C7/667 inclusive, i.e. all of those documents were dated in the index “01/07/2019”. None of those documents was dated internally. We inferred from the approach taken by the respondent in regard to an aspect of Ms Oz’s EVJD that it was the respondent’s position that the content of C7/605 was irrelevant for present purposes because the document post-dated the relevant period and because there was no evidence before us that Ms Oz received training in line with the content of that document during the relevant period. That inference was drawn from what the respondent said in its closing submissions in respect of paragraph 46 of the EVJD for Ms Oz. There, the respondent said this: “In [XX], it was put to the JH by Leading Counsel for the Respondent that this language was largely taken from page 3 of the training document at {C7/656/3} [Day 15, page 109 / 13 - 25]. This was also explained to, and acknowledged by, the Tribunal in response to the Tribunal's question [Day 15, page 110 / 18 - 25]. As the document shows, it was delivered in 2019 and there is no evidence to Case Numbers: 3304495/2018 & others 159 support the proposition that the JH received that training prior to that date. This wording has been deleted as it does not describe a task of the JH.” 23 So, the proposition of the respondent was that unless the claimants could satisfy us on a balance of probabilities that a particular part of the training materials before us had been put before a jobholder, that part of those materials was irrelevant. That was in our judgment wrong, for the reasons which we have given in paragraphs 75-88 of our judgment of 12 July 2023. 24 As Mr Bryant said on day 16 in relation to C7/656/1, as recorded at page 138 of the transcript for that day: “One wonders why it has been disclosed if it isn’t relevant”. 25 As with C7/605, C7/612 and C7/616 were referred to by the parties in closing submissions only in connection with the training that Ms Oz either did, or did not, receive; that was at page 81 of the respondent’s closing submissions in that regard, where the respondent responded to the submission of the claimants that C7/612 and C7/616 were relevant to Ms Oz’s work. We refer below to other documents which it appeared to us were relevant to the work done by Ms Cannon but to which neither party referred us in any meaningful way, but for the moment we focus here only on the documents which it was the respondent’s position had been created after the end of the relevant period. 26 We say that that was the respondent’s position because we heard no evidence from the respondent about the dates when the documents at C7/522 to C7/667 inclusive were issued. If they were all issued on 1 July 2019 then they must have been in preparation for some time before then. In addition, we heard no evidence (probably because it was the respondent’s consistent position that the documents were not relevant) about those documents, all of which were of course the respondent’s documents. We therefore heard nothing about the extent to which those documents contained any information or instruction which was different from whatever was applicable to the sample claimants before 1 July 2019. We doubted that it could credibly be asserted that the content of the documents was in substance new: rather, we suspected that the content was no more than a consolidation and an updating of previous training materials. The updating would have been in the light of for example developments in technology and the increased use by staff of social media. We also thought that it was highly unlikely that the principles in the documents were different from those which had applied throughout the relevant period. 27 In all of those circumstances, we concluded that we should at this stage take into account fully the content of all of the documents at C7/522 to C7/667 so far as relevant, on the basis that if the respondent, reading these reasons and the other documents signed by us today, asserts that the documents did not in some material respect show how a jobholder’s work was to be done, then the respondent can say that in an application under rule 71 of the Employment Tribunals Rules of Procedure Case Numbers: 3304495/2018 & others 160 2013 for a reconsideration of the relevant part or parts of these and our related reasons. If the application appears to have merit, so that it cannot be said that it has no reasonable prospect of success, then we will reconsider the particular issue on the basis that it is in the interests of justice to do so. 28 Returning to the EVJD for the JH, we initially had some difficulty understanding precisely what was in dispute in relation to paragraph 32 and why it was in dispute. We suspected that the claimants were contending that the JH’s role involved significant autonomy, and that the respondent was contending that she did not have any real autonomy. That was borne out by the following closing submissions, made in relation to paragraph 32.

28.1 For the claimants, this was said: “This means that the work listed from A to K in the Index is by no means sequential, and for JH no two shifts are the same.”

28.2 For the respondent, this was said: “The JH’s tasks were routine and repetitive, and the only factors generally having any material bearing on the order in which those tasks were done was the timing of the delivery and the tidiness of the shop floor on a Thursday. JH usually focussed on Recovery and processing the delivery for the majority of the Thursday shift, and Recovery only for the majority of the Sunday shift, subject to any other priorities notified to JH by her manager.” 29 The respondent’s submission in that regard was unlikely to attract persons to work for the respondent, and we suspected that it would not be repeated in the respondent’s recruitment literature. It was also inconsistent with some of the following statements made in the respondent’s training document at C7/616. 30 On page 3 of C7/616, this was said. “By merchandising New Lines as they come in, we can keep our fixtures looking fresh with the latest trends. Merchandising New Lines helps to excite our loyal customers by showcasing our new products in key sightlines. Your layout will be planned by your Manager using their Space Matrix and Visual Merchandising Guide. New lines can be identified in the warehouse by the New Styles riser. Once you take the New Styles rail to the shop floor, you’ll need to look at the new products and decide where to position them. Case Numbers: 3304495/2018 & others 161 You should use your Visual Merchandising Guide to help, as this will show you how the products should flow by department.” 31 On page 4, this was said. “If the product is not featured in the VM [i.e. Visual Merchandising] guide, try to display it next to a similar style product. Top Tip! Look out for similar fabrics, necklines, sleeve lengths and colours.” 32 There were then, on pages 5-7, some further indications of how a customer assistant was required to use some judgement in deciding how to put new stock out on display. 33 On page 10, as the fourth of four “Key points”, this was said. “Be flexible and creative When flexing space, think about what stock you have, try to be flexible and creative.” 34 Those statements pointed in both directions, but they were entirely reconcilable. They showed that the overall layout of an F&F department was determined by the respondent’s head office and its manager, but that a customer assistant was required to exercise judgement and to think creatively in the course of putting stock out on display. 35 The respondent made a number of submissions on the factors to which the claimants referred in paragraph 32, taking issue with the factual foundations for those claimed factors. For example, one of those submissions was that the JH was “rarely involved in a promotion/sale”. We thought that those submissions were unnecessarily made in that section of the record of dispute, not least because they were in fact dealt with elsewhere (for example, in relation to markdowns, in paragraph 444 of the EVJD, and therefore better addressed in relation to that paragraph). However, the submissions seemed in any event to us to be dubious. For example one of the factors referred to was “the number of customers on the shop floor who need assistance”. In that regard, the respondent made a series of submissions about the extent to which the JH herself in fact liked interacting with customers. That was not relevant. What was relevant was what the respondent required of the JH. That was stated at C7/616/12, in this way. “Top tip! Remember our customers come first when tidying or putting out stock.” 36 We therefore declined to resolve here at least some of the factual disputes raised by the respondent in relation to the factors in paragraph 32 on which the claimants relied as justifying their (that is, the claimants’) claim that the JH had at least an Case Numbers: 3304495/2018 & others 162 element of autonomy in deciding what she did during the course of her shifts, and when she did it. In the meantime, however, we were able to come to the following conclusions.

36.1 We rather doubted that the precise order in which the JH did the tasks which needed to be done was important for the purposes of section 65(6) of the EqA 2010.

36.2 However, if it was important, then we determined the dispute here in favour of the claimants, whose words better fitted what we concluded was the reality of the situation, which was this: what the JH did was not to any extent “dictated” by the factors which both parties agreed were relevant, as stated in paragraph 32, and the JH was both able and required to determine, albeit within reason, the order in which she carried out the tasks which she needed to do in a shift. That order would be affected by practical considerations such as when a delivery was received, and the state of the department when the JH started her shift. Paragraphs 33-36 and 48: How many customer assistants worked alongside the JH? 37 We could not see how the number of colleagues with whom the JH worked at any particular time was going to affect the demands of her work for the purposes of section 65(6) of the EqA 2010. We also could not see how such number could be a relevant condition of her work for those purposes. The respondent produced no documentary evidence to show how many colleagues the JH had working alongside her during the relevant period, and the JH understandably put no such documentary evidence before us. Thus, both parties relied on their memories, and the respondent adduced oral evidence only from Ms Humphreys about the matter, which meant that the respondent put before us no evidence about the situation before June 2014. 38 In fact, Ms Humphreys’ evidence contained this passage in paragraph 34 of her first witness statement: “The number of colleagues working during Janice’s shifts was irrelevant to the amount of work she was personally expected to complete. Janice did not need to carry out additional work to ‘cover’ for colleagues who were off sick. Nor did Janice’s workload increase over the RP when there was a diminution in the number of colleagues present during her shift.” 39 The first sentence was an assertion, but it was given meaning by the sentences which followed it. In fact, the final sentence showed that the respondent agreed that the number of colleagues with whom the JH worked on her shifts declined during the relevant period. 40 The only thing that we thought might be material was when the JH worked on her own in the department, as that might, conceivably, be a factor which was a relevant aspect of the conditions in which she worked. As far as we could see (and the evidence on this was not entirely clear), that was something which happened only Case Numbers: 3304495/2018 & others 163 when the JH worked on both Thursday and Sunday nights from 8pm to 10pm, at least after April 2014, and on occasion after then until 12:30 am if the other night-time F&F worker was on leave. We saw in the latter regard that the respondent accepted that the JH worked alone in the department from 8pm to 10pm on Sundays and occasionally after then until 12:30am “if the other Nights colleague was on leave”. 41 We decided that the fact that the JH was working in a store with other staff, even though those other staff worked in different departments, meant that it could not be said that she worked truly alone at any time. We also decided that we did not need to make any further findings of fact about the extent to which the JH worked with colleagues in the F&F team during the relevant period. That was because it seemed to us not to be relevant either to what was the JH’s work for the purposes of section 65(6) of the EqA 2010 or to the conditions in which she worked for those purposes. If the IEs need us to make further findings of fact in that regard, then they must say so under rule 6(3) of the EV Rules. Paragraph 38; the handover notes of Ms Humphreys 42 The parties maintained a dispute about the content of the handover notes left by Ms Humphreys for the JH. The latter said that she introduced their use in 2014, after she started to manage the F&F department in which the JH worked, and the JH accepted that such notes were left for her and it seemed to us that she accepted that they were at least usually, if not always, left for her by Ms Humphreys. However, the JH disputed the amount of detail in the notes and the extent to which the notes contained instructions rather than guidance. Paragraph 23 of Ms Humphreys’ first witness statement showed that she last worked with the JH in September 2018, as she, Ms Humphreys, had left the store at that time and had since worked elsewhere. Thus, by the time of the trial before us, there had been no handover notes left by Ms Humphreys for the JH for well over four years. In the circumstances, if there had been no examples of the notes left by Ms Humphreys for the JH before us, then the evidence before us about the content of the notes would have been of relatively little weight. In fact, there were copies of examples of the handover notes: at C4/38.9, C4/38/10, C4/38.11, C4/38.12 and C4/38.13. The first two of those were from June 2016 and February 2017 respectively. While they were incomplete photographs of the notes, and the names of the persons referred to in them had wrongly been redacted (there being no justification for the redactions), they were in our judgment the best evidence of the kind of notes which Ms Humphreys had left for the JH. In those circumstances, we declined to describe their content, and left it to the IEs to look at them to see what kind of instructions, information or guidance was left by Ms Humphreys in them for the JH. Paragraphs 38 and 55; the handover notes of the JH 43 It was the JH’s evidence that she would leave handover notes for Ms Humphreys: in paragraph 50 of her first witness statement, she said that she did that after 2014 at the end of every Sunday shift. The JH said that she left such notes “as a form of Case Numbers: 3304495/2018 & others 164 accountability and also a chance to explain why I might not have been able to finish [all the tasks for which Ms Humphreys had left specific instructions]”. The JH put before us no example of one of her handover notes but did put before us one made by her colleague in 2019, which the JH said was of the same sort as she, the JH, left for Ms Humphreys. It was at C4/38.15. 44 Ms Humphreys accepted that the JH left handover notes for her. However, she said that they were left only about once a month and only if the JH’s “Night shift colleague(s) were on leave”. Ms Humphreys continued: “[A]s she left midway through the Night shift and I usually arrived at 5.50am on a Monday, before her Night shift colleague(s) left, there was rarely any need for her to do so, as I was able to receive the handover in person from one of her colleagues.” 45 We rather doubted that that dispute was material. What might have been material (we also doubted its materiality, but more tentatively) was whether or not the JH’s work was “reviewed based on the handover note left [by the JH for Ms Humphreys] at the end of the shift”. The JH plainly felt that she was judged by reference to how much she had by the end of a night shift achieved of those things which were left for her to do by Ms Humphreys in the latter’s handover note of the day before. Ms Humphreys, however, said this in paragraph 45 of her first witness statement. “I did not retain handover notes after reading them and they never formed the basis of any formal or informal performance review processes.” 46 Ms Humphreys said this in paragraph 35 of her first witness statement about the impact of her own handover notes. “As any colleague in any role, Janice was expected to try during her shifts to achieve as much as she could, but any work she did not complete was picked up by colleagues in the subsequent shift. If, hypothetically, there had been a significant discrepancy between what I expected the Night team to achieve and what was in the handover note at the end of the shift (e.g., if a delivery had arrived before Janice’s shift begun but had not been processed at all, contrary to the express instructions in my handover note), I would have asked for an explanation, but in practice this never happened.” 47 Thus, plainly the JH was under pressure to do whatever Ms Humphreys left instructions for her to do in the latter’s handover notes. If it were true that Ms Humphreys never had to “[ask] for an explanation” of why it had not been achieved, then that was the result of the quality of the JH’s work. However, it appeared that there had been at least one occasion when Ms Humphreys had asked for such an explanation. Paragraphs 52 and 53 of the JH’s first witness statement were about a situation which arose in 2016 “on a particularly busy Sunday shift the weekend before kids went back to school”. We did not see any dispute about the content of those Case Numbers: 3304495/2018 & others 165 paragraphs. Given that the parties were particularly disputatious, we concluded that the respondent must have accepted the truth of that passage. Indeed, it was consistent with at least the gist of paragraph 35 of Ms Humphreys’ witness statement. It therefore appeared that there was at least one occasion when Ms Humphreys asked the JH for an explanation of why one or more of the things which she had left instructions to be done had not been done. 48 In any event, we concluded that the JH’s work was judged by Ms Humphreys by reference to what Ms Humphreys was told (whether in a handover note from the JH or by another member of the Night F&F team orally, after the JH’s shift had ended), in the way described by Ms Humphreys in paragraph 35 of her witness statement. For the sake of clarity, therefore, we concluded that the final sentence of the opening part of paragraph 38 as contended for by the claimants should be included but with the addition of the words “(or oral report given)” after the words “note left”. 49 In addition, we concluded that the appropriate word for the frequency with which Ms Humphreys’ handover notes contained “specific instructions on what to achieve in that shift” was indeed, as claimed by the respondent, “frequently”, and not, as claimed by the claimants, “regularly”. Paragraph 38(a): was there between 2012 and 2015 a team leader on shift for about 75% of the JH’s Thursday shifts until 10pm? 50 This issue arose because of Ms Humphreys’ recollection in February 2023 about something which had occurred at the latest in 2015. It was said by the respondent, on the basis of paragraph 38 of Ms Humphreys’ first witness statement (which relied on no documentary support for the assertion), that the shift leader “was present on around 75% of JH’s Thursday shifts until 10pm and told JH and her colleagues what tasks needed doing”. There was no real dispute about that as the claimants proposed instead words that stated that the team leader gave those instructions at the start of the shift. The claimants also categorised the dispute as “editorial” and made no submissions on it. We were content to say that the words should be those proposed by the respondent with the words “at the start of the shift” inserted after the words “until 10pm and”. Paragraph 39(a); was the predictability of the JH’s day affected by whether or not there was a need to replenish up to five running rails needing to be taken out onto the shop floor? 51 It seemed to us to be agreed that the JH would be unable to predict what tasks would need to be completed on any Thursday shift. What was not agreed was why that was so. We found it hard to understand why this dispute was maintained. The predictability or otherwise of the JH’s day was not as far as we could see likely to be a material factor, as it was in reality evaluative. What the JH did not do as a result of unpredictable factors could not have any value. The issue for us was what she did do, not what she did not do. Case Numbers: 3304495/2018 & others 166 52 In addition, the issue of what work needed to be done was affected by the answer to the question of the detail of the instructions given to the JH by Ms Humphreys, and those instructions appeared to us to be sufficiently detailed for it to be determinable by us that while practical factors affected what the JH was required to do during her Thursday shifts, those factors were taken into account by Ms Humphreys when planning what the JH should do during her shift. For example, at C4/38/11, there was this set of instructions for the JH (after instructions to two other employees, whose names were redacted) for Sunday 23 October 2016. “(1) Tidy floor – clear any fitting room rails left – (we are counting Monday & can’t have 3 rails left like last week as no-one to do them). (2) Plastic hooks have come in to sort tight basket from last wk out. (3) If time – fill essentials – but if not don’t worry.” 53 It was then agreed that the time that the F&F delivery arrived at the store affected the JH’s work during the shift. That was unsurprising. Again, though, we failed to see how the fact that a delivery might, or even regularly would, arrive during the Thursday night shift was relevant to the work that the JH did, or the conditions in which she worked, except that if one arrived then she might have to break off what she was doing and deal with the delivery. The timing of the delivery was mentioned in paragraph 39 because of the assertion of the claimants that the JH’s working day was unpredictable. 54 This issue of what the JH did at the start of her shift by way of replenishment of running rails was the subject of paragraph 193. Paragraphs 192-193 were in fact specifically cross-referenced in paragraph 39(a) (referred to in the respondent’s submissions as paragraph 39(b), which was probably correct given that there was now a new subparagraph above that which was originally paragraph 39(a)). The other parts of paragraph 39 also contained cross-references to other parts of the EVJD for the JH or otherwise dealt with things that were dealt with elsewhere in the EVJD. We therefore concluded that paragraph 39 was a submission as to evaluation, and raised no factual issues itself. We therefore declined to make any factual findings in relation to paragraph 39. Paragraph 40: the order of the tasks normally done in the JH’s Thursday shifts and the question whether the JH had to do any planning of those tasks 55 The flavour of the dispute which the parties maintained about this paragraph of the EVJD for the JH was discernible from the fact that the claimants proposed as opening words “Taking the above variables, which JH cannot control, into account, on a usual Thursday shift, JH plans JH’s work to:”, while the respondent proposed instead this: “On a usual Thursday shift, JH:” Case Numbers: 3304495/2018 & others 167 56 The parties then disagreed about the order in which the main tasks of the JH were, typically, done. Was it first scanning and pre-sorting the delivery? Or was it, as the claimants claimed, first replenishing any pre-sorted rails of hanging items or dollies of essentials left over from the previous delivery, to free up room in the F&F warehouse? We could not see why that dispute needed to be determined by us. It was obvious that if the delivery had not yet arrived then there would be a need to get out onto the shop floor any items for which there was room on the shop floor which were still in the warehouse. If the delivery had already arrived then it was also obvious that it, and any stock which was left in the warehouse from a previous delivery, had to be put out onto the shop floor if there was room for them. 57 The one thing that was helpful to us in determining the facts relevant to the JH’s work was that the parties agreed that the JH’s work was “mainly” what the parties called

57.1 “Recovery”

57.2 “Replenishment (including Tagging)”

57.3 “Processing Deliveries (including Scanning-in, Stripping and Pre-sorting)”, and

57.4 “Availability”. 58 What was in issue was the order in which that was done. We failed to see how that was a relevant question in itself. It seemed to us that what was relevant was the fact that the task list in the handover note set out in paragraph 52 above showed that the JH was not in the shift to which that note related required to do all of the things set out in the preceding paragraph above and was instead required to do only the specific tasks set out in paragraph 52 above. On that basis, we concluded that the disputes maintained by the parties in relation to paragraph 40 did not need to be determined by us. If the IEs think differently, then they can tell us pursuant to rule 6(3) of the EV Rules. Paragraph 41 59 After clocking in at the F&F customer service desk, did the JH, as she walked through the F&F department, as she claimed, pay “particular attention to the displays containing Essentials to identify any gaps”? The key issue here was whether she was required to do that as part of her work for the purposes of section 65(6) of the EqA 2010. It could be part of such work only if she was required, when she started the shift, routinely to replenish the Essentials. The claimants’ closing submissions identified the “Nub of [the] factual dispute” in this way: “See [382]”. The nub in regard to that paragraph of the EVJD was said to be: “Did JH walk around the department at the start of the JH’s shift to appraise the scale of the Recovery ahead?” 60 “Recovery” was the heading for section D of the EVJD, and that started with paragraph 373. It was not clear to us precisely what Recovery was, even by looking Case Numbers: 3304495/2018 & others 168 at that section. In paragraph 167 of her first witness statement, the JH said that she was willing to accept the respondent’s definition of Recovery as being to “ensure that the shop floor was tidy and presentable, returning items to their correct displays”, but that she wanted to add this at the end of those words: “and arranging items in size order, all with the aim of making the department look good {C7/616}”. 61 As can be seen, the JH there referred to C7/616, to which we ourselves refer in paragraphs 22-28 above. That document, however, did not really help us to see what the respondent required of the JH and others doing the job of customer assistant in F&F by way of what the JH called “recovery”. C7/605 did that a bit more. We have already referred (in paragraphs 16-20 above) to some of the relevant parts of that document. In addition, the following relevant things were said in it. On page 3 of C7/605, this was said. “Working in F&F, you’ll be involved in all areas of the customer experience. From ensuring we have the latest trends displayed with full size availability on the shopfloor, to advising customers on the perfect outfit and creating visual masterpieces to showcase our product” 62 The text which followed that, whether or not under further pictures, on the next pages, was helpful in telling us (and therefore the IEs) about the job of a customer assistant working in the respondent’s F&F department. The relevant additional parts of that text included the following things (and the text which is set out in paragraph 62.3 below is a repeat of what we have set out in paragraph 20 above; we needed to set it out here in order to enable the text set out above and below it in the following sequence to make sense).

62.1 “Part of providing great customer service is ensuring we have the right products and the right sizes available on the shopfloor at all times. By understanding your responsibilities and being efficient, you’ll help to create the best shopping experience for our customers.”

62.2 “The Replenishment Cycle As with other areas of the store, F&F follows the Replenishment Cycle. You have already seen the Replenishment Cycle in Welcome to Replenishment. In this course, we will use the phases of the Replenishment Cycle to show your role in F&F for each stage. There is a separate part of this course for each phase of the cycle.”

62.3 “Prepare Case Numbers: 3304495/2018 & others 169 The Prepare phase deals with products coming into the store including deliveries, pre-sorting products and tagging them. If you work in a store that uses RFID, the Prepare phase also includes RFID portals and RFID counts.”

62.4 “Present The Present phase covers how to handle new lines, sales and reductions. For presenting products, it also describes retail standards and visual merchandising as well as working the fitting room. To respond to customers needs quickly, the Present phase also includes handling stock queries.”

62.5 “The Replenishment Cycle Put Back The Put Back phase covers activities like how to handle backstock, returned stock, waste and recycling.” 63 The “Prepare” phase was described in the document at C7/612. Since the store was an RFID store, we refer only to the parts of that document which related to such a store. On page 3, this was said. “The Prepare phase covers the following areas in RFID stores: Deliveries Pre-sort Tagging RFID Portals RFID Count”. 64 To an extent, this and the other documents detailing the three phases for F&F stated the obvious, as can be seen from the text which we now set out, which was in two boxes at the bottom of page 4 of C7/612.

64.1 “What are deliveries Deliveries are an essential part of your role in F&F. To ensure that our customers can buy the latest, on trend products, our deliveries arrive throughout the week, up to 6 days a week, depending on the size of your store and your delivery pattern.”

64.2 “Why are they important? Case Numbers: 3304495/2018 & others 170 Regular deliveries ensure that we provide the latest fashion trends in a range of sizes. Deliveries are usually unpacked in the evening or night (depending on your store structure) so the products on the delivery can be worked onto the shopfloor quickly the next morning.” 65 On the next page, C7/612/5, there was this “key point”. “When a delivery arrives at your store, colleagues should take it from the lorry and move it to the delivery holding area in your clothing warehouse. The delivery will be held here until pre-sorting happens.” 66 On the next page, C7/612/6, this was said about pre-sorting. “What is pre-sort? For RFID stores, once the delivery has been validated using the RFID delivery function, the items are pre-sorted in the warehouse. For both store types [i.e. both RFID stores and non-RFID stores], during presort, clothing is unpacked and separated by category onto runner rails. The categories that clothes are sorted into are different for NON-RFID and RFID stores.” 67 Below that text, the box for an RFID store contained this text. “Ladies Mens Kids The pre-sort process is slightly different for Essentials, Footwear and Accessories. These are unpacked directly into backstock. You’ll find out more about backstock later.” 68 The next two pages described part of the pre-sorting process, referring to “risers” being placed on “each rail”, i.e. a rail on which clothing would be hung, and being “used to let your colleagues know which stock needs to go where.” This was then said. “Make life easier for your colleagues. Use risers so they can easily see which stock is ready to go to the shop floor rather than them having to repeat the process.” 69 The “risers” were, respectively, “Red for Rack”, “New Lines”, and “Green For Go”. Case Numbers: 3304495/2018 & others 171 70 On the following page, C7/612/8, this was said about pre-sorting. “We use Green for Go and new styles in all stores – this can be much simpler, green for go on rails to work separating brand new styles out with a new styles riser.” Why is pre-sort important? Pre-sorting deliveries will save you time when replenishing products. During the pre-sort, items are checked for:

• Swing tickets

• Security tags Set up your equipment before you start presorting your delivery. If your area is organised, you’ll be much quicker and more efficient.” 71 The next material page was C7/612/10, where this was said. “All delivery stock must pass through the RFID portal as the delivery enters the warehouse. The RFID portal updates your inventory. Not all products will be identified and read by the portals if they are tightly packed in the delivery. You will need to validate all deliveries and add in missed products. On your RFID handheld, you will find the Deliveries Function. Here you will see: Validate Deliveries Function The Validate Deliveries Function checks what percentage of stock has been read by your portal. If this is under 98% you will need to scan and receive the missed items. Receive Function To capture the additional products you will need to use this function and weave your way around the delivery dollies Using this function will only read and add products that aren’t already on your inventory.” 72 The next material page was C7/612/12, where this was said. “Tickets & Tags Case Numbers: 3304495/2018 & others 172 What are tickets and tags? Swing tickets provide product information. They also have RFID built into them. All tickets over £10 will have a dark grey F&F security tag. Security tags

• All products that are over £10 require a security/tag.

• Products are usually delivered with a security tag pre-attached, however you’ll need to re-tag if there is one missing or they are a customer return.

• There are different types of security tags to fit different products.

• Full details on where to tag items can be found on the help centre. Ask a colleague or your buddy/to show you where different items should be tagged as it’s important not to damage the product. Swing tickets

• Swing tickets have information such as size, price, barcode, product code and they also contain the RFID chip.

• In RFID stores, you can reprint tickets if one is missing.

• Both swing tickets and security tags (if over £10) must be attached before the item goes to the shopfloor.” 73 We have quoted that section of the document at C7/612 to show that there was in the bundle before us an authoritative statement of at least some of the things to which the EVJD for the JH related. The next section of that document described the RFID portals and how they worked. They were said on C7/612/15 to “allow us to track the movement of stock to ensure we know the location of each product and provide great customer service.” On the same page it was said that “RFID is designed to achieve 98% availability as over the course of a week there may be a small amount of products that are not recorded by the portals.” On the following page, C7/612/16, this was said (and this was particularly important given the manner in which the parties contested the case before us): “If you feel you need to correct this [i.e. the figure of “availability”, which was intended to be at least 98%] ahead of weekend trade, you can complete a full movement scan on a Friday. However, it’s important to remember that this is not a requirement, as you can still give great availability without it.” Case Numbers: 3304495/2018 & others 173 74 We record here that, as with C7/605 and C7/616, neither party drew our attention to, or relied on, C7/612 in their submissions in relation to Ms Cannon’s work. As with both of those documents, C7/612 was referred to by the parties only in connection with the training that Ms Oz either did, or did not, receive; that was at page 81 of the respondent’s closing submissions in that regard, where the respondent responded to the submission of the claimants that C7/612 was relevant to Ms Oz’s work. We found another of the documents in the bundle to which neither party referred us in closing submissions which was both instructive and illuminating in relation to the work of a customer assistant in the F&F department. That document was C7/227. It was entitled “F&F Visual Merchandise”, and was described on its first page as “your F&F Visual Merchandising e-learning”. Under those words, this was said. “This e-learning compliments your Visual Merchandise Guide and gives you an insight into the importance of visual merchandising and how you can dramatically effect the customers shopping trip.” 75 It seemed to us that that document was aimed in part at department managers such as Ms Humphreys, but also it seemed to us to be intended to educate in particular newcomers to the F&F department to the thinking behind the layouts chosen by for example Ms Humphreys. One page which was of particular assistance to us was page 79, where there was a checklist of the things meant by the respondent’s term “Retail Standards”. It was in the form of a “yes/no” questionnaire, but it seemed clear what the answers should be: “yes” to all but the question whether one should “Limit the number of sizes available”. In fact, we could not be sure of that, since the answers were not given in the version of the document before us. Nevertheless, the document seemed to us to be a very helpful, succinct, statement of what was required when the JH was working through the stock on the shop floor, doing what she must have meant by the word “Recovery”. 76 Before returning to the specific wording of paragraph 41, we record here that we found in addition the following documents (i.e. to which we have not already referred) to be relevant for the purpose of determining the JH’s work:

76.1 C7/226,

76.2 C7/619,

76.3 C7/623 (especially at pages 35-42 and 46-53),

76.4 C7/865, and

76.5 C7/866. 77 Given the factors to which we refer above, we thought that it was entirely possible that the JH would, as she walked to the F&F customer service desk, “[p]ay particular Case Numbers: 3304495/2018 & others 174 attention to the displays containing Essentials to identify any gaps”, but whether it was part of her job to do so was another matter. In addition, whether any particular demand of value for the purposes of section 65(6) of the EqA 2010 was placed on her as a result of her doing that, was also another matter. It certainly did no harm to look around the department at the start of the JH’s shift to see what was going to be required in the form of what the JH referred to as “recovery”. 78 As for what was “recovery”, we thought that it was in part described (pithily) at C7/605/7 in these words: “Part of providing great customer service is ensuring we have the right products and the right sizes available on the shopfloor at all times.” However, that was not the only aspect of what we understood the claimant to mean by “Recovery”. It was also described by reference to what the respondent referred to as the “Retail Standards” and Visual Merchandising”, which were stated at C7/616/12 in the following words. ‘Retail Standards and Visual Merchandising includes:

• Retail Standards includes tidying and making sure we maintain our shopfloor standards.

• Balancing colour and prints across the mat is key when delivering excellent visual merchandising. Refer to the “Pride in F&F module” and the Help Centre for further details.’ 79 The “Pride in F&F module” was at C7/623. We refer to the particularly relevant pages in paragraph 76.3 above. 80 So, did the assertion that the JH would, as she walked through the F&F department, pay particular attention to the displays containing Essentials to identify any gaps, refer to something that it was important for the IEs to take into account in deciding the value of the JH’s work for the purposes of section 65(6) of the EqA 2010? Was it, in other words, something which the respondent would have wanted the JH to do as part of her work? When put like that, the answer was surely, “yes, it was”, if only because it would mean that she would have an idea of what was required by way of replenishment. Did she do it? In our judgment, yes she did: her evidence was given honestly, and she was a measured, careful witness, and this part of her evidence was about something which we thought would have been done by any conscientious and caring employee in the F&F department, which we concluded, having heard and seen her give evidence, the claimant was. 81 We add that the assertion that the JH looked around the department when she arrived at work could not credibly be contested by the respondent, unless there was some concrete evidence to the contrary, but (1) it would be hard to find such concrete evidence, and (2) none was put before us. Case Numbers: 3304495/2018 & others 175 Paragraph 43 82 Paragraph 43 contained what the claimants said was “an indicative idea of how JH’s work is divided on a Thursday shift”. The respondent responded in its closing submissions with a detailed response to that paragraph. The claimants asserted in their closing submissions on the paragraph that that detailed response was a duplication of “information elsewhere in the EVJD”. The respondent’s closing submissions retorted: “The version of this paragraph proposed by the Respondent should be retained, on the basis that its content is not duplicated elsewhere and it offers clarity to the ET and IEs regarding JH’s typical working pattern.” 83 If indeed it did the latter and it was not done elsewhere in the disputed parts of the EVJD for the JH, then it was capable of being of some assistance to us and the IEs. The assertions made by the respondent were in substance about (1) the typical order in which the JH carried out the tasks that the claimants claimed she carried out in her Thursday shifts, and (2) the times when they were done (which had to be read as being estimates; assuming that they were accurate, they were of value in that they enabled us and the IEs to see the percentage of the JH’s working time spent doing those things). We therefore examined the submissions, bearing it in mind that the only direct witness evidence adduced in response to the evidence of the JH was given by Ms Humphreys. 84 However, Ms Humphreys did not work during the period from (as we understood it) about 10pm to 4am, and the assertions related in large part to that period. The percentages on which the assertions were based were referred to in the respondent’s closing submissions on paragraph 43 by reference back to paragraph 24, and the submissions in relation to paragraph 24 were drawn from Ms Humphreys’ second witness statement. Yet the support in that statement for the figures was evidentially flimsy. By way of illustration, this was said under the heading “Clarification” in the respondent’s closing submissions in relation to paragraph 24. “1. Ms Humphreys notes in her supplemental statement [{E4/9.1/8}, paragraph 37], [{E4/9.1/8}, paragraph 38] that the store delivery report {C4/10} shows that 93% of deliveries from Daventry clothing up to February 2015 arrived prior to JH’s starting her shift. 2. This corresponds with Ms Humphreys’ evidence that throughout the period she worked in the store, from June 2014 to the end of the Relevant Period, deliveries arrived prior to JH starting her shift around 90% of the time [{E4/9/15} paragraph 55]. Ms Humphreys explained in her supplemental statement that the shifts of agency workers brought in specifically to process deliveries commenced at 6pm across the business - not just in Watford - given that deliveries did not regularly arrive late[r] than that [{E4/9.1/8}, paragraph 39].” Case Numbers: 3304495/2018 & others 176 85 However, the relevant precise words of Ms Humphreys’ second witness statement were these. “36. Up to February 2015, clothing deliveries arrived from the Daventry DC. I understand that there is the data available for that period show that 93% of those deliveries arrived before Janice started her shift. 37. After February 2015, clothing deliveries arrived as part of a mixed delivery from other Tesco distribution centres. As a result, it is not possible to identify those deliveries from the later delivery data. However, I recall that clothing deliveries followed the same pattern as those that used to arrive from Daventry DC, namely during the day and before Janice started her shift. 38. When deliveries arrived during the day it would be moved from the backdoor to the F&F Warehouse by the backdoor colleague in accordance with paragraph 147 of my First Witness Statement. The Day team would have then completed the delivery acceptance process (scan-in) on the handheld RFID device. Depending on how busy the day went, the Day team may have started the Pre-sort. The Day team would have Pre-sorted a delivery between 10% and 20% of the time.” 86 Paragraph 36 of that witness statement can be seen to have contained no evidence about the “data” to which it referred. Not even the source of the alleged “data” was given in that paragraph. Ignoring the mistaken cross-reference in the respondent’s submissions (set out in paragraph 84 above) to paragraphs 37 and 38 of Ms Humphreys’ second witness statement (it was surely intended to be to paragraphs 36 and 37), there is no reference anywhere in paragraphs 36-38 of Ms Humphreys’ second witness statement to a “store delivery report”. There is a reference in the submissions to document C4/10, but that document was not referred to by any witness when giving oral evidence, or put to any witness in cross-examination during the hearing. Mr Black referred to it in paragraph 16 of his first witness statement, but then said nothing more about it. We saw it for the first time when deliberating. It was a spreadsheet with the heading “Delivery On Time (DOT) Completed Visits 17th April 2014 00:00 To 31st August 2018 23:59”. There was no reference in it to F&F. The submissions referred to clothing as being delivered from Daventry, but the only relevant evidence about deliveries from Daventry before us (ignoring the reference to Daventry in paragraph 323 of Mr Gleiwitz’s first witness statement, which was plainly irrelevant) was in paragraphs 36 and 37 of Ms Humphreys’ second witness statement, which we have set out in the preceding paragraph above. A search for references to “Daventry” in the spreadsheet at C4/10, which was a document produced by the respondent and in our judgment not satisfactorily proved by the respondent, did, in fact, coincide at least in part with what Ms Humphreys said in paragraph 36 of her second witness statement, in that there were no references in the spreadsheet to deliveries as having been made from Daventry after 2015. We did not check all of the specific times when the Daventry deliveries were received, but we Case Numbers: 3304495/2018 & others 177 were prepared to accept that the only relevant potentially credible documentary evidence before us supported the assertions made in paragraphs 36-38 of Ms Humphreys’ second witness statement. 87 But what did that tell us and the IEs that was material about the JH’s work? Did it matter in what order the JH did her work, or were the only relevant issues (1) what she was required to do, and (2) how long it took (or, more accurately, should have taken)? By this time, having considered the relevance of the order in which the JH did her work several times, (see paragraphs 36.1 and 58 above), we had formed the clear conclusion that the order in which the JH did her work did not matter for present purposes. 88 So, we thought that the dispute raised in relation to paragraph 43 by the respondent was about something that was relevant, namely the core elements of the JH’s work and the percentage of her time spent on them, but if it was a duplication of a dispute maintained elsewhere about those things, then it was not appropriate for it to be raised as an issue in response to paragraph 43. We therefore (1) assumed for the moment that it was such a duplication, (2) made no findings of fact on the matters raised by the respondent in relation to paragraph 43, and (3) continued to work through the disputed factual matters relating to Ms Cannon’s work. Paragraph 50 89 The respondent proposed the insertion into paragraph 50 of words which were intended to show that “most of the work [which] the JH and the other F&F Customer Assistants carried out was routine and repetitive” “(notwithstanding how the role might be ‘sold’ to prospective employees)”. That was said in relation to the question of the extent of the need for supervision, in the context of the JH asserting that she only rarely spoke to a manager because it was not necessary for her to do so. The respondent then asserted that the reason why the JH rarely spoke to a manager was “due to the routine and repeated nature of her tasks”. The respondent’s proposed new words for paragraph 50 raised the same factual issue (raised in relation to paragraph 23) as that which we resolve in paragraphs 28-36 above. In addition, the words “routine” and “repeated nature” or “repetitive” refer to evaluative and not factual matters. Accordingly, we decided that the respondent’s proposed new words should not be inserted into paragraph 50. 90 Paragraph 50 contained this sentence, which was agreed. “JH goes to the F&F customer service desk at the start of the shift, where JH’s manager usually leaves a handover note attached to a clip-board.” At this point, we recalled that the agreed text of paragraph 42 was this: “If JH’s manager / team leader is not on shift, JH first goes to the F&F customer service desk to read the handover note which JH’s manager usually leaves for the nights team.” We failed to see a material difference between the subject-matter of the sentences, or any difference in their substance. We refer to that as an example of the repetition that we found in the JH’s EVJD. Case Numbers: 3304495/2018 & others 178 Paragraphs 51 and 52 91 The disputed words in paragraph 51 were “for Customer Service” in the following sentence, which was proposed by the claimants. “The store closes at 4pm, and customers are usually in the F&F department until 4.10pm. During that time, JH is available for Customer Service whilst starting to Recover the department.” 92 The respondent proposed instead that the words were “to assist customers”. While it might be thought that there was no material difference between the words, we understood that the respondent objected to the reference to “Customer Service” because the claimants made a great deal of those words, assigning to them an impact or importance which it was the respondent’s case was unjustified. The situation was in part as stated by the respondent, but only in part, because the assistance took the form of the things which the respondent wanted its shop floor staff in its stores to do as described by us in paragraph 9 of our determinations relating to Mrs Worthington’s work (in Appendix 1, at pages 33-34 above). For convenience, we refer here again to C7/145 as a whole as showing what the respondent wanted its stores shop floor staff to do by way of giving good customer service. 93 The nub of paragraph 52 was its statement of what the JH did for the majority of her time in her Sunday shifts, which was agreed at least in relation to the period from 2012 to April 2014 to have been “Recovering the department from the weekend trading (including dealing with the pile of Returns) with the other Nights colleague.” We saw that this was a matter which the respondent’s proposed additional content for paragraph 43 was intended to cover (to which we refer in paragraphs 82-83 above), with the result that that proposed additional content was, as the claimants contended, at least in part a duplication. 94 That then caused us to reappraise the manner in which the parties had approached the issue of what was the work of the JH for the purposes of section 65(6) of the EqA 2010, and in what conditions, so far as relevant, it was done. One of the factors which was relevant in that reappraisal was the fact that Ms Humphreys, like for example Mr Richardson in paragraph 332 of his first witness statement and Ms Jemmett in paragraph 122 of her witness statement, in our view wrongly asserted that the JH in question was not required to be vigilant in regard to a material matter. In the case of Mr Richardson the material matter was, as we say in paragraphs 158- 160 of our determinations relating to Mrs Worthington’s work (so, paragraphs 158- 160 of Appendix 1, at pages 71-72 above), obstructions and other potential causes of slips and trips. In the case of Ms Jemmett it was the risk of theft: see paragraphs 74- 77 of our determinations relating to Ms Williams’ work (i.e. paragraphs 74-77 of Appendix 2, at pages [ ]), read with paragraph 4.1.6 of the draft of the EVJD for Ms Williams at H3/29. In relation to Ms Cannon, the JH here, Ms Humphreys said this in paragraph 80 of her first witness statement. Case Numbers: 3304495/2018 & others 179 ‘Neither Janice nor any other F&F team member was required or expected to “remain vigilant for any signs of theft or security risks”, as is claimed at paragraph 10.f. of the EVJD. Tesco employed security guards for this purpose.’ 95 That was directly contrary to the third bullet point in the middle column of C7/135/5. What Ms Humphreys said in paragraph 154 of her first witness statement in response to paragraph 93 was similar. 96 Paragraph 93 of the EVJD for Ms Cannon was in these terms. “When JH is ready to pull each delivery container, JH looks over JH’s shoulder to check that the route is clear and proceeds to pull the delivery container backwards until JH reaches the F&F Warehouse, always remaining vigilant of JH’s surroundings and the spaces JH can pull into to give way to colleagues coming the other way.” 97 In paragraph 154 of her first witness statement, Ms Humphreys said this: ‘Whilst Janice took proper care and kept aware of her surroundings when moving delivery containers, it is an overstatement to suggest that she was required to be “vigilant”, as is suggested at paragraph 93 of the EVJD.’ 98 However, in the third bullet point of the first column on C7/142/9, this was said. “Always walk backwards pulling the cage. Look over your shoulder to check your route and make sure nothing is in the way.” 99 We failed to see a difference between being vigilant about something and making sure of something. In addition, we failed to see why it was asserted that anything less than making sure that nothing was in the way would suffice. That was borne out by what was said in numbered paragraphs 3 and 4 on C7/660/9. Thus, in saying that it was ‘an overstatement to suggest that she was required to be “vigilant”’, Ms Humphreys showed her willingness to agree to a proposition which was not supported by the respondent’s own training materials and was contrary to what we regarded as common sense. 100 In addition, and on one level of far more, and central, importance, the key documents showing what were the core tasks of the JH consisted of a relatively short series of documents, and neither party had referred us to them more than incidentally (and in seven cases, namely C7/226, C7/227, C7/605, C7/612, C7/616, C7/619, and C7/865, neither party had referred us to the document at all, or at least in any meaningful way, in relation to Ms Cannon’s work). 101 Another relevant factor was that the parties had maintained factual disputes about many things relating to the work of the JH the purpose of which disputes we Case Numbers: 3304495/2018 & others 180 frequently failed to see, when they could instead (and in our view should) have focussed on the summary of it contained in paragraph 43, which was in fact quite helpful, and then expanded the dispute only as necessary in accordance with our understanding of the case law and the relevant factors as stated in our judgment of 12 July 2023 and paragraphs 9-25 of our second reserved judgment (at pages 5-11 above). 102 The final relevant factor which we took into account at this stage was the fact that we had by the time of starting to consider the parties’ contentions in relation to the work of Ms Cannon spent a further eight days on the issues arising in regard to Mrs Worthington (i.e. over and above those days which were spent on her case in July 2023) and 12 days working through and determining the factual disputes maintained by the parties in relation to the work of Ms Williams. 103 Those factors led us to the firm conclusion that we here should (i.e. it was in the interests of justice for us to) state our conclusions about the JH’s work (that is to say, the work of Ms Cannon) by first deciding what she in fact did in general terms, and then state what we concluded was her work for the purposes of section 65(6) and in what relevant conditions it was done. We have done that in a separate document, which is the next numbered appendix, i.e. Appendix 4. As we say in paragraph 55 of our second reserved judgment (at page 21-22 above), if we have left out of our conclusions something which in the view of the IEs is relevant, then they must, pursuant to rule 6(3) of the EV Rules, tell us why they have come to that view and of course ask us to fill the gap in our findings. Case Numbers: 3304495/2018 & others 181 Appendix 4 Janice Cannon THE TRIBUNAL’S DETERMINATIONS OF THE PARTIES’ DISPUTES (1) IN RELATION TO THE WORK WHICH MS JANICE CANNON (TO WHOM WE REFER BELOW IN THIS APPENDIX AS “THE JH”) WAS EMPLOYED BY THE RESPONDENT TO DO, AND (2) IN RELATION TO THE OTHER FACTUAL MATTERS WHICH ARE RELEVANT TO THE ISSUE OF WHAT WAS THE VALUE OF THAT WORK FOR THE PURPOSES OF SECTION 65(6) OF THE EQA 2010, AND THE (MAINLY JH-SPECIFIC) REASONS FOR THOSE DETERMINATIONS. Introduction; the terminology used by us in this document 1 In this appendix, we use the EVJD for the JH in its original form as the anchor for our determinations. Therefore, where we refer below to “the EVJD”, we mean the document created by the claimants for the JH as her “Equal Value Job Description”, of which there was a copy at C4/1. So, in referring to “the EVJD”, we ignore the changes which were made to it after it was first sent to the respondent. However, in determining those things which we concluded were material, wherever it is necessary in order to explain those determinations, we refer to the text which (1) was subsequently agreed by the parties or (2) which was the subject of rival contentions. 2 Instead of referring to that document every time we refer to a part of it, as with all of the appendices containing our determinations of the work of a sample claimant and relevant facts relating to that work, we have referred to the part in question in bold text. So, for example, a reference below to paragraph 43 is a reference to paragraph 43 of the EVJD as it stood when it was served by the claimants on the respondent. 3 Here and for the rest of following numbered appendices, our description of the frequency with which something occurred follows the schematic (as the IEs called it) at H31. The same is true of the percentages which we use when stating our findings about the JH’s work. The frequencies were stated in that document as follows.

3.1 Rarely: annually or less.

3.2 Occasionally: over a period of several weeks or months.

3.3 Regularly: in a week or month.

3.4 Frequently: during a shift or several times a week.

3.5 Continuously: the activity or event is ongoing during a shift. 4 This was then said. Case Numbers: 3304495/2018 & others 182 “The schematic is not prescriptive but advisory – and the time periods need not necessarily equate in every instance to the adjacent descriptive. All that is required is that when a descriptive is used such as above ... it is further qualified by reference to a time period. This can mitigate any confusion and consequently improve clarity. It is not applied only to activities but can also be used in relation to decision making – how often are decisions required and environmental factors where the frequency and time of exposure to difficult conditions is an issue.” 5 As for percentages, this was said on H31, under the heading “Percentage of time spent undertaking specific activities” and the sub-heading “Frequency in relation to a time period”.

5.1 5% - 20% of shift

5.2 25% - 40%

5.3 45% - 60%

5.4 65% - 80%

5.5 85% - 100%. 6 We note here that the IEs by saying that appeared to cater for the factor that it is likely to be impossible in practice to be precise (or at least impossible to be precise with any hope of accuracy) about (1) the frequency with which things happened or work was required to be done and (2) the amount of time the work took as a proportion of a job-holder’s time. The place where the JH worked, her job title and her working hours 7 The JH worked for the respondent in the F&F (i.e. the clothing) department at Watford Tesco Extra (which is referred to in this Appendix 4 as “Watford”, or, as the case may be, “the store”) throughout the relevant period. The JH’s job title was “Customer Assistant - Nights”. 8 The JH worked on two days a week, in a night shift on each day. The shifts were (1) from Thursday evening to Friday morning and (2) (except for the final four months of the relevant period) Sunday evening to Monday morning. 9 The hours which the JH worked were from 6.30pm to 3.30am on Thursday to Friday, with two 30 minute breaks, which the JH was able to take when she wanted. Thus, the number of hours she was employed to work during those shifts was 8. Case Numbers: 3304495/2018 & others 183 10 The hours which the JH worked on Sundays until April 2018 were from 3.30pm to 12.30am, with two 30-minute breaks. After March 2018, when the JH worked instead on Mondays, her shift was from 4pm to 8pm with a 15-minute break which she could take when she wanted. 11 So, until April 2018, the JH worked 16 hours a week, and then from April 2018 to the end of the relevant period, she worked 12 hours per week. 12 If and to the extent that the JH did work for the respondent outside her contracted hours, so that it could then be called “unpaid overtime”, as we say in paragraph 79 of our second reserved judgment, at page 28 above, it was in our judgment not relevant to the determination of the value of the JH’s work for the purposes of section 65(6) of the EqA 2010 and we therefore make no reference below to such work done in “unpaid overtime”. Some relevant facts relating to the work which the JH did (1) When deliveries of clothing were made to the store 13 Deliveries of clothing for the F&F department were made (according to page 4 of C7/612; we took it and other documents in the series starting at C7/522 and ending with C7/667 into account for the reasons and on the basis stated in paragraphs 22-27 of Appendix 3, at pages 158-160 above) on most days of the week: up to 6. On that page, this was said in two boxes at the bottom of the page.

13.1 “What are deliveries Deliveries are an essential part of your role in F&F. To ensure that our customers can buy the latest, on trend products, our deliveries arrive throughout the week, up to 6 days a week, depending on the size of your store and your delivery pattern.”

13.2 “Why are they important? Regular deliveries ensure that we provide the latest fashion trends in a range of sizes. Deliveries are usually unpacked in the evening or night (depending on your store structure) so the products on the delivery can be worked onto the shopfloor quickly the next morning.” 14 The parties did not address the issue of the extent to which the passage set out in paragraph 13.1 above was accurate, or true for Watford, but it appeared not to be material since it appeared that the parties agreed that (1) a delivery of clothing was made to Watford either during the day before the JH started her Thursday night shift, or after she started that shift and before it finished, and (as shown by reference to Case Numbers: 3304495/2018 & others 184 their agreement of the material words of paragraph 58) that (2) no delivery of clothing was made to the store during the day on Sunday or during the course of the Sunday night shift. In fact, C7/612/17 stated specifically that “there is no delivery on a Sunday.” (2) The store was an “RFID” store within the meaning of the terminology used by the respondent 15 The term “RFID” was defined at C7/605/12 in this way. “Most of our stores support a technology called RFID (Radio Frequency Identification). This simply means that our products have data chips attached to the swing tickets that can tell you everything you need to know about the product.” (3) The times when customers were present on the shop floor when the JH was working 16 During the relevant period, the store was (it appeared to us, doing the best we could with the evidence before us, taking into account in particular (1) paragraph 157(c) of the JH’s first witness statement, (2) paragraph 17(b) of her second witness statement, (3) paragraph 14, and

(4) paragraph 51) open to customers at all times except (1) midnight to 10am and from 4pm to midnight on Sundays, or (2) midnight to 10am on Sundays and from 4pm on Sundays until 8am on Mondays. However, we accepted that in practice, as stated by the JH in paragraph 17(b) of her second witness statement, the store was open for another 10 minutes after 4pm on Sundays. (4) The implications of the presence of customers 17 The presence of customers on the shop floor, or their possible presence because the store was open for custom, meant the following things as far as the work of the JH was concerned (and what we say here is sufficient to resolve the disputes maintained by the parties in regard to the content of paragraphs 366, 368-371 and 501-504).

17.1 The JH was required to be vigilant to the risk of theft (see the third bullet point in the middle column of C7/135/5).

17.2 The JH was otherwise required to be aware of and take the steps referred to on pages 1-6 of that document.

17.3 The JH was required to apply the principles relating to good customer service stated for example at pages 2-17 of C7/145.

17.4 The JH was required to “[r]emember [to put] customers ... first when tidying or putting out stock”. That was stated specifically at C7/616/12 as a “Top Tip!”. Case Numbers: 3304495/2018 & others 185

(5) The risks to the JH and others in the working environment, and the steps which she was required to take to mitigate those risks 18 The JH was required to be aware of and apply the guidance and requirements stated at pages 3-23 and 25-33 of C7/142 and pages 7-25, 27-36 and 53-60 of C7/823. 19 The risks to the JH from being on the shop floor when customers were present until April 2018 (and in part after then) were lower than they were for customer assistants who worked during the day, simply because there were fewer customers on the shop floor when the JH was working and the store was open than there were during the day. However, that there were nevertheless risks to the JH from being present on the shop floor is shown by C7/705, which included guidance of which the JH was required to be aware. The findings made in this and the preceding paragraph above were in our judgment sufficient for present purposes. We accordingly declined to determine the disputes about the content of paragraphs 520, 530, 532, 533, 539 and 540. If the IEs believe that we should determine those disputes then we will reconsider the question whether we should do so. 20 The extent to which the JH worked in isolation given that there were other members of staff working at nights, and given that a manager and security staff were on the premises when the store was open, was the subject of a dispute in relation to paragraphs 537 and 538. We saw that the respondent accepted part of the claimants’ proposed words for paragraphs 537 and 538, but rejected other parts. As far as we could see, the only substantive dispute in that regard was about the number of colleagues who were present at the store during night shifts. The latter was in our judgment immaterial: whether it was 25, as the claimants asserted, or 40, as the respondent’s asserted (on the basis of what Ms Humphreys emphasised in cross-examination was an estimate of hers), the store was a large one and, we concluded, even if the number was 40, a customer assistant in the position of the JH might reasonably have felt isolated and vulnerable given that the store was open to the public overnight at least from Thursday to Friday. However, whether or not the JH did in fact feel vulnerable was not relevant. The fact that (as we find in the preceding paragraph above) she was in fact at some risk, as evidenced by C7/705, was material.

(6) The extent to which the JH was given instructions about what to do in a shift 21 For the reasons given by us in paragraph 50 of Appendix 3 (at page 165 above), we concluded that from the start of the relevant period until about the beginning of 2015 there was a team leader present at the start of the JH’s shift on Thursdays, and that team leader would tell the JH what she needed to do during the shift, i.e. the tasks and the order in which she should do them. 22 For the reasons given by us in paragraph 42 of Appendix 3 (at page 163 above, after June 2014, the JH’s line manager would leave a handover note for the members of the F&F team, stating what she wanted them to do in their shifts. Examples are at Case Numbers: 3304495/2018 & others 186 C4/38.9, C4/38.10, C4/38.11, C4/38.12 and C4/38.13. Those notes were typically more detailed for Thursday night shifts than for Sunday night shifts. The JH was obliged to do what was stated on the note if possible, and was accountable to her line manager if she did not do what was asked of her. 23 Approximately four times a year (i.e. occasionally) there would be a more than minor reorganisation of the F&F department, in which case the JH’s manager would be present during a Sunday shift to oversee the reorganisation (see paragraph 38(d)).

(7) The extent to which the JH would receive information about forthcoming events in the F&F department 24 After June 2014, approximately monthly (i.e. regularly), the JH’s manager would hold a meeting for all of the F&F staff, at which the manager would inform the staff of the next month’s priorities and of any forthcoming developments (see paragraph 38(c)).

(8) Clocking in, the existence of CCTV, and the possibility of being searched 25 The JH was required to clock in, as claimed in paragraph 519(a), and CCTV was, as the respondent accepted in responding to paragraph 519(b), present throughout the shop floor and the warehouse, and as shown by C7/784, at the latest by April 2018 customer assistants in all of the respondent’s stores knew that their actions might be monitored via that CCTV in the circumstances described in that document. The respondent accepted also in response to the content of paragraph 519(d) that the JH was subjected to random searches of her pockets, clothing, bag and car.

(9) The physical environment in which the JH worked 26 The environment in which the JH worked was the store’s warehouse and its shop floor. Describing the warehouse as an “industrial setting” (as was done in paragraphs 21 and 521) was, as we say in paragraph 193 of Appendix 1, at page 79 above, evaluative. The words “industrial setting” therefore added nothing material in our judgment. The proportion of the JH’s time spent in the warehouse was relevant only to the extent that the conditions in the warehouse were less favourable than those on the shop floor. The parties agreed that the external doors to the warehouse were open for a third of the time. They disagreed about the distance from the area where the JH worked in the warehouse to the back door, but the disagreement was based on separate measurements taken by the respondent. That was clear from the fact that the claimants said that the distance was 29 metres, and the JH referred to that distance in paragraph 216 of her first witness statement as having been stated by the respondent. The respondent’s proposed words for paragraph 523 included a statement that “The F&F warehouse is approximately 30 metres from the external warehouse doors of the main warehouse area”, but that was not based on any evidence, and the respondent’s submissions in support of its proposed words for paragraph 523 referred to the distance as being “29m”. Thus, we concluded that the distance was approximately 29 metres. Case Numbers: 3304495/2018 & others 187 27 The key issue (which arose in relation to paragraphs 523, 524 and 535) was what was the effect on the JH of working in the F&F warehouse as compared with working on the shop floor, and even Ms Humphreys accepted that there was a difference in temperature of up to 2 degrees Centigrade. The evidence of Ms Humphreys in paragraphs 513 and 514 of her first witness statement that the gap between a delivery lorry and the doorway was minimal so that when the lorry was in place, the draught would not be severe, was material. However, the possibility of the draught being minimised by stock on the warehouse floor between the doorway and the place where the JH worked (as claimed in paragraph 514 of Ms Humphreys’ first witness statement) was probably irrelevant, given the tendency of cold air to bypass physical objects. The respondent also contended in relation to paragraph 524 that the JH could have worn her own clothing in the warehouse if she did not want to wear the gloves, fleece and thermal jacket which it was the respondent’s evidence (in paragraph 517 of Ms Humphreys’ first witness statement) the JH could have ordered. We concluded that it was sufficient for present purposes for us to conclude that (1) working in the warehouse was less congenial than working on the shop floor, (2) the warehouse was colder than the shop floor, but (3) sufficiently warm clothing was available to the JH. In coming to the third of those three conclusions, we took into account fully what the JH said in paragraphs 210 and 211 of her first witness statement. We also took into account the evidence of the JH in paragraph 213 of her first witness statement that the warehouse was “very cold and cramped” and that she worked “next to a large generator, which [the JH understood was] high voltage and [worried her]”. If it was in fact a generator, then it would probably have been a backup generator, but in any event, we could not see how the need to work next to a large item of electricity supply-related equipment could be more than minimally material to the determination of the value of the work of a customer assistant, especially when bearing it in mind that the JH was chosen as a sample claimant, and not all claimants would work next to such a piece of equipment. Therefore, we concluded that the finding that we should make in this regard was that the store’s warehouse contained large pieces of equipment and that the JH was required to work in its vicinity, so that the IEs can take that factor into account if they think it is relevant. Having said that, if it is relevant, then so will be comparable factors in the environment in which the DC comparators worked. 28 The brilliance or otherwise of the lighting in the warehouse was the subject of disagreement in regard to paragraph 525. We rather doubted that the respondent would have deliberately failed to light the warehouse adequately, but if there was a failure at Watford to light the warehouse sufficiently well for the JH to see what she was doing without difficulty at all material times, we would regard that as not being material here. That is because it would have been an instance of the respondent not doing what it should have done, which we would regard as being as irrelevant as the JH doing something that she should not have done (such as getting inside cages, to which we refer in paragraph 101 below). Case Numbers: 3304495/2018 & others 188 29 As for the proportion of the JH’s time spent in the F&F warehouse, the parties agreed (we could see from paragraph 491 of Ms Humphreys’ first witness statement) that the JH spent 50% of her Thursday to Friday shifts in the warehouse. There was, it appears, at one point a disagreement about the overall proportion of the JH’s time which was spent in the warehouse. That is because the claimants’ closing submissions recorded that the respondent had asserted in regard to paragraph 521 that, overall, the JH spent about 25% of her time in the warehouse. That was not based on anything material, as far as we could see. Ms Humphreys’ evidence in paragraph 491 of her first witness statement could not be seen as a basis for that assertion, since it was Ms Humphreys’ own estimate that the JH spent 35% of her time in the warehouse. In fact, by the time of closing submissions, the respondent had ceased to argue for an overall figure for the proportion of the JH’s time spent in the warehouse as compared with time spent on the shop floor, being instead willing to agree simply that the JH spent 50% of her time in the warehouse during her Thursday night shift. We concluded in those circumstances that we should conclude here that the minimum proportion of the time that the JH spent in the warehouse was 35%.

(10) The extent to which the JH interacted with colleagues when she was working 30 We assumed that the extent to which the JH worked in isolation was capable of being relevant, although we were unable at this stage to see in precisely what way it might be relevant. The claimants proposed the inclusion of something about this in paragraph 536. The respondent resisted its inclusion on a factual basis. The claimants proposed this text for that paragraph. “Working nights on the shopfloor is isolating. JH generally works alone during Replenishment and Recovery, and is discouraged from talking to colleagues on the shop floor while on the clock. JH has been informally admonished for speaking with colleagues on shift.” 31 The respondent objected to that passage on the basis that it was not justified by, or inconsistent with, the evidence. We found it hard to believe that Ms Humphreys would not have done what was recorded in paragraph 229 of the JH’s first witness statement, which was this: ‘If my colleagues and I were together in a group on the shop floor, even if we were discussing work, and [Ms Humphreys] saw us, then she would likely break it up and say “come on, we’ve got lots to do today”.’ 32 What Ms Humphreys said in response to that evidence focused on the JH continuing to work while talking. Since the JH worked alone for much of the time, we concluded that that was not an answer to the proposition that the JH was generally isolated, and that if the JH and her colleagues were talking and not working, then Ms Humphreys would break up the conversation with a view to getting them back to work. We emphasise that we saw nothing awry in Ms Humphreys doing that, and that that Case Numbers: 3304495/2018 & others 189 factor assisted us in concluding that what the claimants proposed for paragraph 536 was apt and should be a finding of fact made as claimed by the claimants. We therefore accepted that paragraph 536 was accurate. The work which the JH was employed to do Introduction; an overview of the JH’s work and some factors which were relevant to our determinations of that work 33 The parties agreed that the JH’s main tasks were as described in paragraph 8. The respondent put percentages on the tasks referred to there, but without putting in a figure for what was possibly the main part of the JH’s work, which was what the JH called “Recovery”. That figure was the subject of submissions made by the respondent, however. We return to those submissions in paragraph 44 below. 34 The parties agreed the substance of paragraph 40(d), which was that on Thursday night shifts (“Thursdays”), the JH did (and this was what the respondent said, with the elements in a different order from the one which was proposed by the claimants):

34.1 “Recovery”,

34.2 “Replenishment (including Availability and Tagging)”, and

34.3 “Processing Deliveries (including Scanning-in, Stripping and Pre-sorting)”. 35 The claimants proposed that the work was instead best described as follows.

35.1 “Replenishment (including Tagging)”,

35.2 “Processing Deliveries (including Scanning-in, Stripping and Pre-sorting)”,

35.3 “Availability and Recovery”. 36 On Sunday night shifts, the JH was agreed by the parties to do the following things (stated in or by reference to paragraphs 52 to 54). 36.1 Between 2012 and April 2014, when the JH worked alongside a colleague during her Sunday night shifts, the JH did what the parties called “Recovering the department from the weekend trading (including dealing with the pile of Returns)” and, if she had time to do it after finishing such “Recovering”, “conduct[ing] Availability ... of Essentials”. 36.2 After March 2014 and to the end of the relevant period, the JH’s time was almost all taken up with such “Recovery”. Case Numbers: 3304495/2018 & others 190 37 We record here for the sake of completeness that it was the claimants’ contention that “After Recovery, on approximately two Sundays per month, JH conducted Availability on at least one silver’s-worth of Essentials”, but that to complete that amount of work she had to work unpaid overtime and that she worked that unpaid overtime because of the impact on her colleagues of her not finishing that “silver”, i.e. rail. The respondent accepted that on approximately two Sundays per month (so, about half the time), the JH “conducted Availability during the last hour of her shift [in relation to Essentials]”. 38 The labels used by the parties for what the JH did were plainly not determinative of the work which she did for the purposes of section 65(6) of the EqA 2010. It was, however, helpful to us that the parties agreed in broad terms what the JH did. If they had not done so then we would have had to decide that question. 39 However, the question could not sensibly be decided in the abstract. Instead, it had to be decided by reference to the proportion of the JH’s time spent doing the various tasks which constituted her work. 40 The parties disputed those proportions. They did it in a number of ways and in a number of places in their contentions on the various issues which were raised by the EVJD. The percentages of the JH’s time spent on the work which she was employed to do The evidence before us 41 In paragraph 12 of her first witness statement, the JH said this. “It is very difficult for me to put precise numbers on the amount of time I spent doing a particular task on an average shift, not only because the Relevant Period was some years ago, but because every shift was different. My Thursday shifts were the most unpredictable because they were dependent on the timing of the delivery arrival, but Sundays could also be unpredictable depending on how busy the weekend trading had been, and how messy the department was at the end of the weekend. Therefore, whilst I have tried my best to offer estimates of the percentage of time spent on each of my main tasks, I stress that these are rough estimates and do not reflect every shift throughout the Relevant Period.” 42 However, the table in the following paragraph of that witness statement, which was apparently intended to state the percentages of the time spent doing the various tasks which the JH said she did during her shifts, was blank. That apparent error was remedied by what the JH said in paragraph 17 of her second witness statement, where she gave some percentages for the things which she described in those tables. In the following paragraph below, we summarise them by reference to the order set out in the table used in paragraph 17 of the JH’s second witness statement, Case Numbers: 3304495/2018 & others 191 but ignoring the references there to doing what the JH called “Customer Service”. We have ignored those references because they are catered for sufficiently in our judgment by it being borne in mind by the IEs and us that (1) during the times when the store was open to customers, the JH’s current task was capable of being interrupted by the requirement, as part of her work for the purposes of section 65(6) of the EqA 2010, to respond to a customer query, and (2) the possibility of such interruption was therefore continuous during those times. By saying that, we are in no way diminishing the impact of that requirement. Rather, it seemed to us to be a major factor affecting the work, for those purposes, of a customer assistant. 43 The JH’s estimates of the amounts of time spent by her on the main tasks of her job, as set out in paragraph 17 of her second witness statement, were as follows. Sunday shifts

43.1 “Recovery: Around 5 to 7 hours”.

43.2 “Returns: Around 30 to 45 minutes”.

43.3 “Around 1h 30 mins of Availability”: (1) “Filling up a silver from the backstock takes 45 mins – 1 hour”; (2) “Replenishing a full silver onto the shop floor takes around 30 minutes (it is slightly quicker to off load than to load a silver because, when loading the silver, I would organise it efficiently for Replenishment.” Thursday shifts (so up to April 2018)

43.4 “Processing deliveries (including Scanning-in, Pre-sort, Stripping and Tagging)”: (1) “Stripping rails takes around 30 to 40 minutes” (2) “Pre-sort takes between 4 hours and 4 hours and 30 minutes”.

43.5 “Replenishment of Essentials (including Ordinary Merchandising)”, which took “Around 2 hours (spent on the shop floor), including stripping of Essentials”.

43.6 “Recovery/ Availability/ Replenishing left over rails”: “I do this for around 1 – 2 hours at the beginning or end of my shift, depending on when the delivery arrives”. Monday shifts (so after March 2018) Case Numbers: 3304495/2018 & others 192

43.7 “Around 2 hours 30 minutes spent on Availability of Men’s Essentials (and occasionally Hanging items) including Tagging”.

43.8 “Around 1 hour and 30 minutes on Recovery of the Men’s department, both Essentials and Hanging.” 44 The respondent’s submissions on those percentages were stated in response to paragraph 8. That paragraph was stated in the EVJD to be about the “Job Purpose”. No percentages were stated in paragraph 8. It is nevertheless helpful to record here what the respondent’s submissions (as stated in response to paragraph 8) were in regard to the relevant percentages. ‘1. Ms Humphreys’ evidence is that JH’s main tasks were Recovery (which JH described at interview as meaning “to tidy” [{C4/4/8} p.29, line 10]), Processing Deliveries, and filling the shop floor (Replenishment), [{E4/9/13}, paragraph 48], and that she spent more than half of her time tidying, around 25% of her time processing deliveries, and around 15% of her time filling the shop floor from deliveries and backstock [{E4/9/13}, paragraph 49]. During [XX] [Day 17, p.41, lines 3 to 7] JH accepted that she may have spent around 60% of her shifts undertaking Recovery. These percentages are relevant factual information and should therefore be included in this paragraph, particularly as the paragraph is unhelpfully structured, with JH’s primary task (Recovery) misleadingly positioned at the end of the list. 2. There is no reason to separate replenishment from backstock (Availability) from replenishment from deliveries (Replenishment): both are “filling” or “replenishment” and are accounted for as such in the percentages above. Filling from backstock should not be listed separately as a core task. By itself, filling from backstock accounted for a very small proportion of JH’s overall shift time and could not be considered a core or main task in any event. Accordingly, subparagraph (c) should be deleted from this paragraph of the EVJD, and subparagraph (b) amended so as to include filling from backstock. 3. What the EVJD refers to as ‘Merchandising’ is not a main or core task and should therefore be deleted from this paragraph. To the extent this refers to making space whilst filling, that is already covered at (b). To the extent this refers to ad-hoc merchandising tasks, JH assisted with these around six times a year, so this was not one of her core or main tasks. Subparagraph (d) should therefore be deleted from this paragraph of the EVJD in its entirety. 4. Ms Humphreys’ evidence is that JH assisted customers with ad-hoc queries only occasionally, around eight to ten times per week across both her shifts [{E4/9/20}, paragraph 72 (a)]. Given that each customer Case Numbers: 3304495/2018 & others 193 interaction lasted on average around three minutes [{E4/9/69}, paragraph 358], this represented a very small part of JH’s job (accounting for 2.5% of JH’s normal working week, taken together with the miscellaneous tasks in paragraph 10 (b. to e.)) and therefore cannot be considered a core or main task. JH’s own evidence is that the Night shift is generally quieter and does not have as many customers [{E1/4/52}, paragraph 158]. Accordingly, subparagraph (e) should be deleted from this paragraph of the EVJD.” 45 Those submissions were accompanied by the following text which the respondent proposed should be used instead of the claimants’ proposed text for paragraph 8, but with cross-references (which were in the claimants’ proposed text) removed by us on the basis that they were unnecessary. “(a) Scan-in, Pre-sort and Strip deliveries (Thursdays only), (approximately 25% of JH’s normal working week); (b) replenish the clothing department including Availability (i.e. replenishment from backstock), (approximately 12.5% of JH’s normal working week); and to (c) ensure that the shop floor looks presentable, returning items to their correct display. In addition, JH assisted customers when working on the shop floor, (which, taken together with the miscellaneous tasks described in paragraph 10 (b. to e.) comprises 2.5% of JH’s normal working week).” 46 We inferred from the text which we have set out in paragraph 44 above that the respondent’s position was that ensuring that the shop floor looked presentable, including by returning items to their correct displays, took up 60% of the JH’s time. That was, it appeared, what the parties agreed could be called for the purposes of deciding what the JH’s work was, “recovery”. We thought that that was not the whole picture, and that what the JH called “recovery” was part of what the respondent in its training materials dated 01/07/2019 described as the “Present” phase of the “Replenishment Cycle”, to which we refer in paragraphs 106-130 below. We saw that the claimants proposed in relation to paragraph 373 this definition of the word “recovery”. “[T]he process of maintaining the professional appearance of the F&F department and ensuring that it looks presentable, well organised and inviting. ... Where possible, displays are to be stocked with all available sizes, with items arranged in size order and positioned on the correct display arms/bars.” 47 Our conclusion on the percentages of the various activities of the JH during the relevant period was that the JH’s evidence as set out in paragraph 43 above was the Case Numbers: 3304495/2018 & others 194 best and most reliable evidence of what she did in fact do during that period, so we accepted that evidence. As for what that work was, it had to be decided by us by reference primarily to the relevant training materials before us, to which we now turn. However, we found that the JH’s description of what she did, if understood by reference to the detailed findings which we make below, was the best guide to what was her work in broad terms during the relevant period. The JH’s work in the F&F department as determined by us by reference to the relevant training materials and such other evidence before us as we concluded was relevant Overview 48 There was something of an overview of JH’s role in F&F in C7/605. That role was capable of being described as participating in the “Replenishment Cycle” as the respondent described it at C7/605/8. That had three phases, namely as stated on that page:

48.1 “Prepare”,

48.2 “Present”, and

48.3 “Put Back”. 49 In summary, “preparing” meant what was said on C7/605/9, which was this (with the bold text being in the original: in any quotation below, unless otherwise stated, any bold text is original, that is to say it has not been added by us). “The Prepare phase deals with products coming into the store including deliveries, pre-sorting products and tagging them. lf you work in a store that uses RFID, the Prepare phase also includes RFID portals and RFID counts.” 50 In summary, the “Present” phase meant what was said on the next page of C7/605, which was this. “The Present phase covers how to handle new lines, sales and reductions. For presenting products, it also describes retail standards and visual merchandising as well as working the fitting room. To respond to customers needs quickly, the Present phase also includes handling stock queries.” 51 “Put Back” was described on the following page of C7/605, i.e. page 11, in these words. Case Numbers: 3304495/2018 & others 195 “The Put Back phase covers activities like how to handle backstock, returned stock, waste and recycling.” (1) Prepare 52 The “prepare” part of the “Replenishment Cycle” was described in C7/612. The JH’s role in that part of that cycle started (see C7/612/5) after the clothing delivery had been moved by colleagues to the “holding area” in the F&F warehouse at Watford. Given that Watford was an “RFID store” and that, as a result of what was said at C7/612/10, the newly-delivered stock should have been passed through the store’s RFID portal (as to which, see C7/612/15) as it entered the warehouse, the JH’s first role in relation to a delivery was (see C7/612/9 and step 18 on C7/866/4) to “validate” the delivery and “add in missed products” by obtaining an “RFID handheld” device, of the sort described in detail at C7/865, and following steps 5-8 of C7/866, or, as the case may be, steps 5-17 of C7/866. 53 The JH did not normally take newly-delivered UoDs from the back door to the F&F warehouse. By the time of closing submissions, the parties were in agreement in that regard but not about the extent to which the JH might, exceptionally, pull those UoDs to the F&F warehouse. By reference to paragraph 79 the claimants asserted that that occurred about once a month and the respondent asserted that it occurred about once every three months. We concluded that both descriptions fell within the definition of “occasionally” at H31, which we have set out in paragraph 3 above. 54 The physical aspects of the deliveries were in part recorded at paragraphs 63-69, almost all of which were agreed. It appeared from for example paragraph 83, which was agreed, that the roll-cages referred to in paragraph 69 were two-sided. Only the size of the boxes as asserted there was the subject of disagreement, as stated in the parties’ closing submissions in relation to paragraph 68. We accepted the claimants’ case in that regard, however, for the following reasons.

54.1 It was based on the JH’s oral evidence, given on day 17, as recorded at internal pages 69-70 of the transcript of that day, that the picture on the bottom half of C4/1/108 (i.e. the JH’s EVJD) was of the “standard size that came on the cages” which were delivered to the store.

54.2 Ms Humphreys merely made (in paragraph 212 of her first witness statement) a general assertion about “the average box” size, namely that it was “significantly smaller than that shown in the Defined Terms and Equipment List, which is the largest size of cardboard box that was used”. 55 Paragraph 70 was about something which was irrelevant: the JH’s knowledge of what might be in a delivery. What was material was what tended to be in the deliveries, and that should have been dealt with in regard to pre-sorting, which is where we make our relevant findings of fact below. Case Numbers: 3304495/2018 & others 196 56 The content of paragraph 82 as it stood by the time of closing submissions was in substance agreed, given H31. Thus, the JH would regularly have to deal with a roll cage which was covered from top to bottom with several layers of plastic wrap, which the JH was required to remove with a case cutter as defined at C7/0.1/10, namely a “case opening safety knife”. (For the avoidance of doubt, we have not in this paragraph and below referred to “roll-cages”, but to “roll cages”. That is because there was no hyphen between “roll” and “cage” at e.g. C7/142/9.) The relevant disputes in paragraphs 81, 85-96 and 526 of the EVJD 57 The disputes maintained in regard to the content of paragraphs 81 and 85-96 and 526 (which referred back, we guessed, to paragraph 81(d) and not paragraph 81(c)) were catered for in part by what was said at C7/142/8-10 and C7/823/19-23. Otherwise, that is to say to the extent that we needed to make any further findings of fact, we made the following findings. (For the avoidance of doubt, if the parties have agreed a frequency or a fact on which we would, if asked, have declined to make a finding because it was in our view immaterial, then of course it can be taken into account by the IEs, if they believe it to be relevant.) 58 In regard to for example potholes and cracks in the surface of the store’s warehouse, we concluded that the key issue was not what happened in practice at Watford but what were the requirements of the JH’s job in regard to moving roll cages and what difficulties in practice she and other employees doing the same job elsewhere in the respondent’s business faced or tended to face. 59 However, we could see that it would help if we determined the disputes maintained in relation to the content of paragraph 81, if only because of the need (stated by Underhill P in note 4 to his judgment in Prest v Mouchel

[2011] ICR 1345

) to anchor our findings in regard to potholes and cracks on a particular employee’s situation. The disputes maintained in regard to paragraph 81 needed in our judgment to be read against the background of the respondent’s own training materials and on the balance of probabilities. So, for example, in paragraph 81(a) it was said that “heavier trays are often placed on top of lighter trays, which JH comes across multiple times a shift”. That was disputed on the basis (stated in the respondent’s closing submissions) that Ms Humphreys said in paragraph 151(a) of her first witness statement that “this did not render the column unstable, since the arms of the trays locked into one another, and the stacks were very stable”. In fact, that was not what paragraph 151(a) said, since in that subparagraph, Ms Humphreys included the caveat that the trays in a column would not be unstable “provided they were stacked properly”. In addition, at C7/660/69, there was this “top tip”. “Before moving any cage or dolly ensure there are no defects, it is stacked evenly and not top heavy, ensure the load is secured so no objects can fall off.” 60 Thus, the respondent’s own evidence was to the clear effect that there was a risk that cages and dollies might arrive with an uneven or top-heavy load. Case Numbers: 3304495/2018 & others 197 61 In addition, reference was made in paragraph 81(d) to potholes and cracks appearing in the warehouse floor throughout the relevant period, and it was countered on the basis of Ms Humphreys’ evidence in paragraph 498 of her first witness statement was that “It is not the case that the Warehouse floor had potholes and cracks for extended periods during the RP and which rendered delivery containers, or any other equipment being wheeled across the floor, unstable.” However, that was a bald assertion. It is true that it is difficult to prove a negative, but plainly (i.e. as a matter of common sense, or simply on a balance of probabilities) there was the possibility of the warehouse floor being uneven, and that was catered for by what was said by the respondent at C7/660/67 about the need always to “use 2 colleagues to move 1 [roll] cage at a time when moving over uneven ground, door or mat threshold, slope, ramp or incline as this could cause the cage to topple”. 62 Given those factors, we accepted the claimants’ proposed words for paragraph 81. 63 Equally, the key issue in relation to the question of the possibility of wheels on cages or dollies being stiff or wobbly (as raised in paragraph 91; the issue of the risk of the wheels of a running rail being faulty was raised in paragraph 197 and we deal with that issue in paragraph 135 below), was not what happened in practice at Watford but what were the requirements of the JH’s job in regard to cages with wobbly or stiff wheels, and how often the JH had to deal with such cages. As for the frequency with which those adverse events occurred, we concluded that Ms Humphreys’ evidence had to be seen in the light of our findings of fact stated in paragraphs 94-99 of Appendix 3 (at pages 178-179 above) and by reference to a balance of probabilities. In paragraph 152(c) of her first witness statement, Ms Humphreys said this. “Although the wheels of the delivery containers were relatively stiff (in order that the delivery containers were stable and did not roll when intended to be stationery) it did not take any significant physical effort to move them.” 64 We found it hard to see what was meant by “any significant physical effort”, as that was an evaluative term, and in any event necessarily subjective. In addition, stiff wheels make the things which they are on hard to move. Ms Humphreys then said this: ‘I never came across a “wobbly” wheel.’ 65 We doubted the accuracy of that statement, given for example the evidence (which we accepted) of Mrs Worthington on which we made the findings of fact stated in paragraphs 62-65 of Appendix 1 (at pages 48-49 above). 66 Ms Humphreys then said this. “As noted at paragraph 151.f above, if any piece of equipment developed a fault it was taken out of use immediately until repaired.” Case Numbers: 3304495/2018 & others 198 67 Given our findings in paragraphs 62-65 of Appendix 1, we rather doubted the accuracy of that evidence. 68 As for Ms Humphreys’ evidence about the likelihood of plastic wrap getting caught in a wheel (which was the subject of paragraph 85(d)), we thought that the respondent’s submission missed the point. That submission was in these terms. ‘Ms Humphreys’ evidence is that plastic wrap became caught in the wheels no more than twice or three times per year [{E4/9/34}, paragraph 152 (d)]. Ms Humphreys’ specific estimated frequency should be preferred to the Claimants’ unspecified schematic frequency, “occasionally”, which is inaccurate if used in the sense set out in the frequency schematic.’ 69 That missed the point because (1) in our judgment it assumed unrealistically that the number of times when the event in question occurred could be guessed with a degree of accuracy here, and (2) the schematic was adopted deliberately to cater for the impossibility in practice of arriving at a reliable estimate of the number of times such events occurred. The appropriate frequency was in our judgment “occasionally”, as claimed by the claimants. 70 In addition, the things which were dealt with in paragraphs 90 and 91 concerned the things dealt with by us in paragraph 64 of Appendix 1 (at page 49 above). As with the evidence of Mrs Worthington about the use of cages which were difficult to move, we accepted the JH’s evidence about the extent to which she would simply work round the difficulties posed by faulty roll cages and stacks of trays on dollies. Paragraphs 90 and 91 were as far as we could see about the same thing, and should therefore have been combined. We concluded that, as combined, using the word “regularly” (as the claimants did) as defined in H31 for the frequency with which the thing in question happened, from the point of view of factual accuracy, we accepted their content as proposed by the claimants. However, and this was a major caveat: all of the respondent’s training materials were to the effect that a seriously faulty roll cage had to be taken out of service as soon as it became known that it was faulty. That was the clear instruction at C7/142/9: “If you find a cage that is damaged you must not use it.” That instruction was repeated at C7/664/13, where this was said: “Never use defective equipment. Always take it out of use to protect you and other colleagues”. The same thing was said about a damaged dolly at C7/823/22. In these circumstances, we found what Ms Humphreys said in paragraph 155 of her first witness statement to be less than accurate on the facts, but accurate about the respondent’s requirements. Having said that, consistently with the manner in which we assessed the situation of Mrs Worthington with which we deal in paragraphs 62- 65 of Appendix 1 (at pages 48-49 above), we concluded (applying a balance of probabilities) that some faults were sufficiently minor to be overlooked, and we concluded that the JH’s work (as with that of all other persons employed by the respondent who moved roll cages and dollies) was to continue to use and move roll cages and dollies which were faulty unless the fault interfered to such an extent with Case Numbers: 3304495/2018 & others 199 the use of the cage or dolly that it was unsafe to use it, at which point the JH’s work involved taking the cage or dolly out of use. 71 The respondent made a specific contention about the maximum weight of a roll cage. It did so in relation to paragraph 86, and the contention was based on the agreed content of paragraph 83, where it was said that the JH estimated that the weight of a cage, which was about 30kg empty, might “[double] when stacked with clothing and bars to its maximum capacity”. That was a weak basis for such a firm contention, but the parties appeared to agree that the weight of a fully-loaded cage was about 60kg. The respondent accepted that “sometimes” a roll cage loaded with cardboard boxes full of shoes and clothes would be heavier than one which was filled with clothes hanging on rails, and the claimants asserted that the majority of the cages loaded with cardboard boxes full of shoes and clothes were heavier than cages loaded with clothes on rails. However, in the absence of evidence about the relative frequency with which a cage would be filled with full boxes rather than clothes on rails, we saw nothing on which we could make a relevant determination. For the avoidance of doubt, however, we saw that the respondent’s position in this regard was not based on evidence. That was because the only evidence cited in support of the proposition that the word “sometimes” should be used was paragraph 157 of Ms Humphreys’ first witness statement, which was in these terms. “Whilst roll-cages loaded with cardboard boxes containing shoes were heavier than those containing clothing rails, Janice and the other F&F colleagues never had to exert significant force to move them. Had Janice and the other F&F colleagues not been able to move a delivery container comfortably themselves, they could have asked a Backdoor colleague (who regularly moved far heavier delivery containers filled with products for other departments) to assist them. Janice was never required or expected to move a delivery container she considered to be too heavy. She could always have left it for another colleague to move, or to assist her in moving. Neither Janice nor any other F&F colleague ever complained to me about the weight of delivery containers or otherwise reported to me that they were excessively heavy.” Validating a delivery 72 That which was required to be done to “validate” the delivery was described rather better in C7/866 than in paragraphs 105-110 as a whole. We have already referred to the steps referred to in that document in paragraph 52 above, but for the avoidance of doubt we say here that taking steps 5-8 of C7/866 would (as recorded in relation to step 9 of C7/866) inform the JH whether or not there was a need to “scan in or receive the delivery with [the] handheld device”. If there was such a need, then the steps to follow were numbers 9-16. Nevertheless, we found the description in paragraphs 108 and 109 of the way in which the scanning-in was done helpful and accurate. That was for the following reasons. What Ms Humphreys said in paragraph 172 of her first witness statement about how the staff (including her) were trained to scan in was in part consistent with (1) that which the JH said as recorded in Case Numbers: 3304495/2018 & others 200 paragraphs 108 and 109 and (2) the content of box 12 at C7/866/3. To the extent that what Ms Humphreys said in paragraph 172 of her first witness statement about the manner in which the scanning had to be done was inconsistent with C7/866, we rejected it. That which she said as relied on by the respondent in relation to paragraph 109 was so inconsistent, given the content of box 12 at C7/866/3. The additional words about the effectiveness of the RFID device which were proposed by the respondent to be used instead of the content of paragraph 108 were inapt, since they were not relevant to the way in which the JH had to work. The additional words proposed by the respondent for paragraph 107 were inapt since they were inconsistent with C7/866. We therefore rejected them. For the avoidance of doubt, the respondent’s contention that paragraph 109 should be deleted was in our judgment wrong because it was inconsistent with the content of box 12 at C7/866/3. 73 The dispute in paragraphs 97, 99 and 246 about whether or not a hand-held computer was used by the JH before 2015 was material here. In that regard, we made the following findings.

73.1 The respondent’s submissions to the effect that the JH did not use a “Personal Digital Assistant” or “PDA” before 2015, relied purely on the evidence of Ms Humphreys in paragraphs 163 and 164 of her first witness statement. Since (1) the PDAs to which the claimants referred in paragraphs 97 and 99 in relation to the period before 2015 were the predecessors to the handheld RFID devices which were used after 2014, and (2) Ms Humphreys arrived at the store only in June 2014, Ms Humphreys’ evidence in paragraph 164 of her first witness statement about the pre-2015 devices was given to us over eight years after the last time when she might have seen the JH using a PDA of that sort. In any event, figure 10, at the top of page C4/1/111, i.e. page 111 of the EVJD for the JH (to which Ms Humphreys referred in paragraph 164 of her first witness statement), showed a device which plainly had on it commands relating to F&F stock. The device appeared to be an example of (albeit not precisely) the “Existing Device” referred to on page C7/842/5, where reference was made also to the “New Device”. C7/842 was issued in March 2017. Therefore, figure 10 on page C4/1/111 was apparently a version of the PDA which was in existence before March 2017. In those circumstances, it was impossible to decide by reference to the type of PDA to which the claimants referred whether or not the JH used one for F&F scanning before 2015.

73.2 For the avoidance of doubt, we saw no material evidence in the subparagraphs of paragraph 99, as they were a summary of other evidential assertions which in itself meant that they constituted comments and in any event were a repetition of those other assertions. We did see, however, at C4/19/37, a reference to “the hand-held computer” which was in use at the time when that document was issued (which was March 2012) being used to scan. That was in the following sentence: “On the hand-held computer ensure that the cursor remains in the box when scanning to ensure each item is captured within your transfer.” That was said in relation to returning products to the respondent’s Case Numbers: 3304495/2018 & others 201 Saltley DC and what was said on the following pages of C4/19, up to and including page 41, showed in our judgment that the JH’s evidence about the use of a PDA which did the same sort of thing as did the hand-held RFID device which was in use when Ms Humphreys worked at Watford, was reliable. Thus, we accepted that hand-held computers were, as the JH said in paragraph 8 of her first witness statement, introduced before the start of the relevant period and that they were able even then to show (as the JH said in paragraph 8c) “whether there was an item available in the backstock”. We also accepted that PDAs (of one sort or another) were used throughout the relevant period to “validate” deliveries. 74 For the sake of convenience, we deal here with the disputes which were maintained about the content of paragraphs 100 and 102-104 about the use of RFIDs in practice. 75 We thought that the dispute in regard to paragraph 100 was about something which was obvious in principle, but assuming that it was necessary to determine the dispute, we decided that the key thing was the responsibility of the JH to look after the RFID. We decided in that connection that (1) because of its value, the JH had to take particular care of the RFID when it was in her possession, and (2) she had do to that, it appeared to us on the balance of probabilities, daily, i.e. applying H31, frequently. 76 We accepted paragraph 102 as proposed by the claimants because we accepted paragraph 86 of the JH’s first witness statement. For the avoidance of doubt, we also rejected the first three sentences of paragraph 168 of Ms Humphreys’ first witness statement as they were shown to be wrong by for example C7/612/15 and step (or paragraph) 9 on C7/866/3. In fact, as we record in paragraph 157 below, Ms Humphreys accepted implicitly that what she said in those sentences of paragraph 168 of her first witness statement was wrong. 77 We rejected paragraph 103 as it was unnecessary given the existence of C7/865 and C7/866. 78 We found paragraph 169 of Ms Humphreys’ first witness statement to be of relatively little weight, since there was no objective, or even apparent, justification for her limiting the time when RFID devices froze to 2019 onwards. We accepted that the JH’s own evidence, given in 2023, about the frequency with which an RFID froze during the relevant period was given long after the event, so it might have been unreliable. However, we found what she said in paragraph 87 of her first witness statement to be cogent and likely on the balance of probabilities to be true, so we accepted it. We therefore accepted the substance of paragraph 104 as proposed by the claimants but on the basis that the frequency with which the RFID device froze was “frequently”, and that the words of that paragraph should be replaced by these. Case Numbers: 3304495/2018 & others 202 “The handheld PDA or RFID device would frequently freeze. When it did, the JH would either find another one or carry on with her current task and scan the items when she next had a working PDA or RFID device.” Pre-sorting Introduction 79 The next part of the JH’s role as part of the “prepare” phase was to “pre-sort”, which meant (see C7/612/6) unpacking the clothing and separating it “by category onto runner rails”, although, as Watford was an RFID store, “Essentials, Footwear and Accessories” were (see that page) “unpacked directly into backstock” as shown at C4/19/15. As recorded in submissions made in regard to paragraph 84, that involved (it was agreed) moving roll cages around, including up to a distance of 3 metres. Whether all or only some of the cages that were there at the time needed to be moved, was disputed. As a matter of common sense the number was likely to vary from time to time. However, there was no evidence from either party about the frequency. In the circumstances, we concluded that the correct word was “some”, but that in any event, it was evidently agreed that every week, i.e. frequently, the JH would have to move the cages around when preparing to “pre-sort”, or in the course of pre-sorting. 80 “Runner rails” and their use in pre-sorting were described at C7/612/7 and C4/19/12- 14. Security tagging 81 During pre-sorting, the JH was required (see C7/612/8) to check for swing tickets and security tags. Those tickets and tags and how they needed to be used were described at C7/612/12-13 and C4/19/30-33 and 35. At C7/612/12, this was said: “Security tags

• All products that are over £10 require a security/tag.

• Products are usually/delivered with a security/tag pre-attached, however you’ll need to re-tag if there is one missing or they are a customer return.

• There are different types of security tags to fit different products.

• Full details on where to tag items can be found on the help centre. Ask a colleague or your buddy to show you where different items should be tagged as it’s important not to damage the product. Swing tickets Case Numbers: 3304495/2018 & others 203

• Swing tickets have information such as size, price, barcode, product code and they also contain the RFID chip.

• In RFID stores, you can reprint tickets if one is missing.

• Both swing tickets and security tags (if over £10) must be attached before the item goes to the shopfloor.” 82 Since the issue of tagging was in our judgment best dealt with in one place only, we refer here to the disputes maintained about tagging in paragraphs 299-310. The first was in paragraph 303 where it was asserted by the respondent that about 90% of Essentials items were below the £10 tagging threshold. That might well have been correct, but it was not based on any documentary evidence: it was based only on an estimate of Ms Humphreys, stated in paragraph 266 of her first witness statement. The facts that (1) Ms Humphreys said in paragraph 270 of that statement that the JH “was neither required nor expected to proactively check that [items above the threshold] were tagged”, but (2) it was (given the final bullet point in the passage set out in the preceding paragraph above) plainly a requirement to do that, cast doubt on the reliability of Ms Humphreys’ evidence (as did the factors to which we refer in paragraphs 94-99 of Appendix 3, at pages 178-179 above). However, the claimants put no alternative evidence forward (which, we acknowledge, would have been disclosed by the respondent, or would otherwise have consisted of an estimate of the JH), and what Ms Humphreys said in paragraph 267 of her first witness statement appeared to be based on some sort of statistical evidence which supported the proposition that the majority of Essentials items did not need tagging. However, no such statistical evidence was drawn to our attention. We did see that at C4/19/30, which was issued in March 2012, this was said: “Around two thirds of Clothing product is now tagged by our suppliers using blue tags.” In the circumstances, we accepted that at least two thirds of clothes were tagged by suppliers by the start of the relevant period. 83 Given that we would have been surprised to see posters on the shop floor showing how to tag items (as was asserted in paragraph 271 of Ms Humphreys’ first witness statement), we preferred the JH’s evidence in paragraph 148 of her first witness statement that there were no such posters. However, we could see that at C4/19/31- 32 there was pictorial guidance, accompanied by words of guidance, about how to tag clothing. The guidance was not comprehensive, but in substance, the disputed parts of paragraphs 305 and 306 were in line with it. We therefore accepted the claimants’ additional proposed words for paragraphs 305 and 306, and not those proposed by the respondent for paragraph 305. 84 The claimants’ proposed words for the frequency with which the things referred to in paragraph 308 occurred were (applying H31) accurate, so we preferred them to the respondent’s proposed words. We would if necessary have also preferred the claimants’ proposed word of “occasionally” for paragraph 304, but it appeared from Case Numbers: 3304495/2018 & others 204 the respondent’s closing submissions that the wording of that paragraph was agreed by the respondent by the time of closing submissions. 85 Paragraph 309 was inapt since it referred to the JH’s knowledge of security spot checks relating to the tagging of items, and such knowledge was in our judgment irrelevant given that it would not (as Ms Humphreys said; we accepted her evidence on this) be possible to attribute to the JH or any of her colleagues responsibility for the fact that an item which required a security tag did not have one. As for paragraph 310, we accepted the respondent’s position (based primarily on paragraph 268 of Ms Humphreys’ first witness statement) that the JH was not required to double-tag, not least because there was no reference to such double-tagging in either C7/612 or C4/19. Pre-sorting generally 86 Pre-sorting as a topic was dealt with at length at pages 5-16 of C4/19, which contained a careful description of the manner in which F&F product was intended by the respondent to be stored in the F&F warehouse. We concluded that the JH’s work done in pre-sorting was as stated in all of the parts of the training materials to which we refer in this paragraph and paragraphs 79-80 above, with the following additional things. We add that we have not, unless the context required it, repeated findings of fact in this document. Therefore, we have assumed that if and to the extent that any factual finding made above or below is relevant to pre-sorting and it is not referred to in this section on pre-sorting, then it must be applied to this section. The same is true of every other section of this document. 87 The parties agreed the content of paragraphs 71-72 and the first sentence of paragraph 73, which were relevant here. We could not see the relevance of the rest of paragraph 73 and therefore declined to determine the dispute about it. 88 Given what we said in paragraphs 53-55 of our judgment of 12 July 2023, we declined to include the content of paragraphs 74-76. 89 Paragraph 77 was irrelevant to the issues before us, given that it was not contended by the claimants that the JH did not have enough space to do her work in the F&F warehouse. 90 In paragraph 112 (and in paragraph 31 and paragraph 70 as later expanded) it was said that “at least 50% of delivery containers are delivered to the store uncategorised”, so that women’s, men’s and children’s clothing was “all mixed together in each tray or roll-cage”, but that “Boxes of clothing” were not mixed. However, at C4/19/11, this was said: “Currently the DC groups products together to ensure mat [sic] 90% of like products are put into the blue trays together.” Case Numbers: 3304495/2018 & others 205 91 The respondent’s submissions in response were based on an estimate that only 25% of the trays contained mixed products. That estimate was not supported by any documentation. The estimate was contained primarily in paragraph 140 of Ms Humphreys’ first witness statement: it was merely repeated in paragraph 175 of that statement. The figure of 25% was merely stated, i.e. baldly and without any documentary corroboration. Thus, both parties relied on rough estimates drawn from memory. However, Ms Humphreys’ estimate was rather better supported by what was said at C4/19/11 than was the JH’s estimate. In those circumstances, we accepted Ms Humphreys’ estimate, which was based on her experience and was (as stated in paragraph 140 of her first witness statement) that “75% of the trays were unmixed”. 92 The weight of the trays appeared to us to be capable of being relevant. It was the subject of dispute in regard to paragraph 132.The respondent said that the average weight of a full tray was 5.5kg. That in our view was a detail for which there was no evidential basis. We could also see no evidential basis for the respondent’s assertions in its closing submissions about the total weight of trays which the JH handled in each of her shifts. Putting the matter another way, the respondent failed to identify any such basis in those submissions. In addition, at C4/19/11, this was said immediately after the words set out in paragraph 90 above: “The system [meaning the distribution centre system] looks to fill all blue trays to a maximum fill and does not split trays between product areas. However, to fill a blue tray you may find some cases where a tray is half full the packer will fill the blue tray with the next product list resulting in the 10% that will go to stores mixed.” 93 We therefore decided that the relevant finding to make about the matters dealt with in submissions relating to paragraph 132 was that the average weight of the trays which the JH was required to move from the dollies on which they arrived at the store was 5.5kg. 94 The dispute in regard to paragraph 142 concerned, essentially, the frequency with which the JH replenished shoes and handbags on display. We saw that the way in which the JH did the job of replenishing those things was inconsistent with what was said at C4/19/10 about being “able to run the warehouse operation with no blue trays” if she used “equipment in the warehouse effectively”, which meant using cages for footwear and (as stated at the top of C4/19/11) “High Level Trading Rails Storage” for footwear and bags. In addition, it was said at C4/19/15 that any Essentials, Footwear, Bags or Accessories stock that was stored in the warehouse on “moveable fixtures should be pre-sorted directly onto backstock”, and that the “best practice for filling from the rails is to pull the whole rail onto the shopfloor at set times through the week that will be dictated by how many times you need to fill to keep your shopfloor full.” In addition, at C4/19/6, it was said that “No product should be stored in blue trays.” However, given that the respondent did not object that the way in which the JH did the things described in paragraph 142, we concluded that it was approved by the Case Numbers: 3304495/2018 & others 206 respondent, so it became part of her work for the purposes of section 65(6) of the EqA 2010. 95 The issue of frequency was raised by the parties also in regard to paragraph 235, which was the companion to paragraph 142. The claimants proposed that the word “occasionally” was used for the frequency with which the JH replenished shoes and handbags. The respondent proposed that the determination should be that that occurred “3 times a year”. The latter figure was drawn from paragraph 194 of Ms Humphreys’ first witness statement, but that figure was itself drawn from the statement made by the JH in her interview of 5 May 2022, as recorded at C4/4/29, so that the real evidential basis for the figure of 3 was the JH’s own initial estimate. Applying H31, the right word for the period from 2014 onwards was in our judgment “occasionally”. We saw no evidential reason to disagree, and therefore accepted, that before then, as the JH asserted, she did that job “regularly” within the meaning of H31. 96 We preferred the claimants’ proposed words for paragraph 147 since they were more in accordance with C4/19/5-15 than those of the respondent. 97 The appropriate word, even on the basis of the content of paragraph 202 of Ms Humphreys’ first witness statement, for the frequency with which clothing which was classified as a hanging item would arrive on the floor of a roll cage as described in paragraph 151(b), was “regularly”. 98 We agreed with the claimants’ proposed words for paragraph 158, since they were more in accordance with the content of C4/19/5-15 than the words proposed by the respondent. 99 We were persuaded by the JH’s evidence, read in the light of what was said at C4/19/5-15, that the claimants’ version of the disputed proposed words for paragraph 160 was to be preferred to that of the respondent. That was because the respondent’s proposed words were based on a number of guesses made by Ms Humphreys in her witness statements, which were made well over four years after the last time that Ms Humphreys was present and working with the JH at Watford, and the JH’s evidence was (applying common sense and a balance of probabilities) on its face cogent. 100 However, we accepted that what the JH did as stated in the final sentence of paragraph 161 was not an authorised way of working, so we concluded that the final sentence of paragraph 161 had to be omitted. That is because of (1) what Ms Humphreys said in paragraphs 208 and 209 of her first witness statement, which we accepted, (2) what the JH herself said as recorded at C4/4/20, internal page 80, and (3) C7/660/20, where this was said: “Never climb into the cage”. 101 The dispute in relation to paragraph 166 concerned the usual size of boxes of clothing and other relevant items which were delivered for the F&F department, and Case Numbers: 3304495/2018 & others 207 in the original words of that paragraph, it was said merely that they “came in different sizes” and that the photograph called figure 5 on page 108 of the EVJD at C4/1/108 showed “the largest of the boxes used”. The respondent proposed that we conclude instead that 75% of the boxes were “smaller” than the ones shown in figure 5 (not, as stated by Ms Humphreys in paragraph 151b of her first witness statement, figure 6). The claimants, presumably seeking a compromise, proposed that we conclude that right words to describe the situation were these. “The boxes themselves came in different sizes, some of which were smaller than those shown on the Cardboard Box photo in the Equipment List and Defined Terms, which shows the largest of the boxes used.” 102 The respondent’s proposed figure of 75% was drawn from nowhere as far as we could see: it was not even a guess stated in either of Ms Humphreys’ witness statements. In those circumstances, we concluded that the original (and not the claimants’ proposed changed) wording for the last two sentences of paragraph 166 should be accepted by us. 103 The dispute which the claimants thought was maintained in respect of paragraph 168 was odd. It was obvious that the JH would not know how much the top box weighed. In fact, the respondent did not make submissions on that paragraph, so it must be taken to have accepted the claimants’ proposed words for it. That may well have been because it was corroborated by what was said in paragraph 213 of Ms Humphreys’ first witness statement. 104 We thought that the parties were mistakenly at odds about paragraph 173. That was for the following reasons.

104.1 What would be on the floor after a pre-sort appeared to be agreed to be what was shown by figure 16 at the top of C4/1/114.

104.2 Clearing up as the JH did during pre-sorting was in our judgment obviously required, as shown by e.g. C7/142/13 and C7/660/12 and 14.

104.3 However, the order in which tasks were done was in our view irrelevant. Rather, what mattered was what the tasks were. As a result, the dispute about when the things referred to by the claimants in paragraph 173 were (using the respondent’s word) “cleared” was about something which was irrelevant for present purposes. 105 The dispute maintained about paragraph 175 was in two parts. The first was about the purpose of pushing or pulling the 10-14 running rails into two parallel rows. That was said by the respondent to be “evaluative”. However, it was not evaluative. It was, rather, explanatory. Whether it needed to be there was the issue. It was not unhelpful for it to be there, and was consistent with the statement that was agreed in the next sentence, namely that the JH left enough space between the rails to accommodate Case Numbers: 3304495/2018 & others 208 her, a colleague and a cage in which to put the “plastic waste cage”, i.e. a roll cage used to store plastic waste. It was then said by the respondent that figure 17 at C4/1/114 showed too narrow a gap between the two pictured rails. We thought that that picture was helpful, even if the gap shown might have been wider. On those bases, we accepted the claimants’ proposed words for paragraph 175. 106 For the avoidance of doubt, we concluded that the disputed contents of paragraphs 114, 116-126, 155, 177(e), 182(a), 527 and 528, were about details which were highly unlikely to be material to the assessment of the value of the JH’s work, not least (but not only) because they related to the tasks which were in our view authoritatively described in the training materials to which we refer in paragraphs 79- 80 and 86 above. In addition, in so far as the parties’ submissions depended on estimates which were not based on anything concrete, they were of dubious weight. In some cases too, the disputes were about the obvious (such as the impact of the falling of rain on newly-delivered UoDs or about the inconvenience – or otherwise – of a pipe leaking overhead in the F&F warehouse). Thus, we declined to make any findings of fact about the matters which were disputed by the parties in relation to paragraphs 114, 116-126, 155, 177(e), 182(a), 527 and 528. (2) Present Replenishment generally 107 There was at C7/616/3 a reference to a training module called “Welcome to Replenishment”, of which it appeared no copy was before us, unless there were in substance parts of it at C7/653, C7/654, C7/658, and C7/660 (all of which were stated by the respondent to have been issued after the relevant period, although, as we record in paragraph 22 of Appendix 3, at page 158 above, none of them were so stated internally). We thought that the content of page 10 of C7/653 was informative about the role of all of the claimants who replenished, as it said that the reader might be “involved in the Present phase of the Replenishment cycle” via

107.1 “scheduled replenishment”

107.2 “your initiative” (with an icon showing plainly that the respondent encouraged the use by jobholders of their initiative), and

107.3 “[at] a manager’s request”. 108 Those three situations were then explained in clear terms on the next page, C7/653/11. The fact that the information in the document applied to all customer assistants, including those in F&F departments, was in our view put beyond doubt by the fact that there were references at C7/653/15-17 to the tagging of F&F stock, which we thought were plainly intended to be read by customer assistants in F&F departments. We noted that under the heading “Your initiative” on page C7/653/11, this was said. Case Numbers: 3304495/2018 & others 209 “You notice a display that is short of stock so you take ownership to resolve the problem.” 109 In addition, C4/19, which was issued in March 2012 (it was dated “03/12”), and which therefore was probably at least in part superseded by the developing RFID technology, nevertheless contained on internal numbered pages 15-19 (C4/19/18-22) an informative description of what replenishment of clothing stock involved. The document was probably aimed primarily at managers, but it was informative and relevant for the purposes of determining the JH’s work within the meaning of section 65(6) of the EqA 2010. We saw for example that at C4/19/18, this was said: “Replenishment product and essentials should be merchandised on a daily basis, generally overnight. New Styles should be merchandised by more experienced member [sic] of the team during the day.” 110 In addition, there was this helpful instruction or piece of guidance at the bottom of that page, said to be a “Key Point!”: “Pre-sorting directly onto essentials rails/cages means that stock will only visit the shopfloor once during the replenishment process therefore making it a more productive way to replenish.” Visual merchandising and new styles; visual merchandising and “Retail Standards” 111 The rest of what was involved in “presenting” was described in detail in C7/616. While there was some irrelevant material in it, it was possible to discern from it what the next stage of putting out stock which had been delivered to the store involved. The first thing to record was that, as shown by C7/616/3, where there were “New Styles” or “New Lines” (which appeared to be the same thing), the JH would need to “look at the new products and decide where to position them”, using the store’s “Visual Merchandising Guide to help”, as this should show “how the products should flow by department”. 112 The steps to be followed next were stated at pages 4-8 of C7/616. The principles to be applied were stated at pages 16-29 and 45-80 of C7/227, although we saw that there was some repetition in those pages, and there were no answers to the questions at page 79. In fact, we thought that the answers were all on page 47 of C7/226 in that they were discernable from what was said on that page. 113 The principles to be applied were also stated in C7/226, which was a 48-page document entitled “F&F Visual Merchandising Principles Pack”. That document applied to the JH as well as to her line manager. That was clear from the content of page 3, which for the sake of convenience we now quote. Case Numbers: 3304495/2018 & others 210 “Welcome everyone to the F&F Visual Merchandising Principles Pack! This training pack has been designed with you in mind! Combined with Click & Learn this will give you all the training and skills you need to confidently deliver the 5 Visual Merchandising Principles on your clothing mat. lt will help you understand the ‘How’ and the ‘Why’ and also the huge benefits great Visual Merchandising will deliver in your store. Throughout this pack there are practical exercises for you to complete so you can put in to practise what you have read on Click & Learn and within this pack.” 114 It was also clear from what was said on page 9, which was this. “When your manager is planning the shop floor layout there are some key tools available to help. These are:

• Space Matrix

• Visual Merchandising Guide

• Plan of the shop floor

• Visual Merchandising Principles

• Work plan Communication Using the above tools together will ensure that your department has the correct flow, departments have the correct space (mods) needed and the Product Adjacencies make sense. You can help to make What Good Looks Like a success by reviewing each layout change with you[r] manager. This will help you to understand what the new layout for your department will look like.” 115 In addition, on page 4 of C7/226, this was said. “In this pack we will take you through the customer journey and how we can make it a better experience. We have 5 Visual Merchandising Principles:- 1. Layouts 2. Fixtures & Fittings 3. Visual Merchandising Case Numbers: 3304495/2018 & others 211 4. POS 5. Retail Standards Use the information within this training pack to help deliver F&F to the highest standard for all of our customers.” 116 “Retail Standards and Visual Merchandising” were summarised at C7/616/12 as “[including]” (1) “tidying and making sure we maintain our shopfloor standards”, and (2) “Balancing colour and prints across the mat”. 117 This was then said: ‘Refer to the “Pride in F&F Module” and the Help Centre for further details”. The “Pride in F&F Module” was C7/623. The relevant pages in it were pages 35-42 and 46-53. Those pages described the principles of (1) visual merchandising and (2) “Retail Standards” respectively. We could see only one reference in that document to any kind of “mat”. It was on page 3, where reference was made to “the F&F mat”. That “mat” was more fully and helpfully described at C4/19/73-80. 118 Pages 61-69 of C4/19 contained what appeared to us to be a thorough explanation or description of what was involved in “visual merchandising”. In the course of that description, at C4/19/68, the term “Retail Standards” was helpfully explained in the following terms: “Ensuring the standards are achieved ensures a polished and professional department, tying together the four previous principles.” Those previous principles were (1) layout, (2) fixtures including the “Lakes, Trees and Mountains Principle”, (3) “Merchandising” and (4) “Point of sale/Graphics”, all of which were referred to on the pages immediately preceding C4/19/68 and included in the section on visual merchandising at pages 61-67. There was a helpful “Merchandising Flowchart” for “New Styles” at C4/19/69. We note that those pages (61-69) showed that merchandising as referred to there was, as Ms Humphreys said in paragraph 234(e) of her first witness statement, not what occurred when one was replenishing, or at least not normally. However, at page C7/619/9, the word “merchandise” was used in the sense in which it was used by the JH, in this paragraph, under the heading “Clearance”. “Yellow stickers should be used for reduced to clear product. For example, if a three pack of knickers has one pair missing, this product is still saleable as a two pack, and can just be sold at a reduced price The reduction process is used across the store. Once you’ve reduced an item, this should be merchandised within your sale area.” 119 In addition, what Ms Humphreys said in paragraphs 109-110 of her first witness statement was shown by the content of C4/19/68 to be wrong. There, she said this. “109. After returning an item to the correct display, Janice glanced at the display, and, if she noticed an item obviously out of place, she removed it and put it in the correct place. If the item belonged on a different Case Numbers: 3304495/2018 & others 212 display, Janice placed the item on the running rail to return it to the correct display later. 110. Whilst returning items to their displays, Janice was neither required nor expected to check that each item was in the correct place, as is suggested at paragraph 401 of the EVJD; nor that each item was in the correct size order, as claimed at paragraph 403, whether the item had gone into sale, or how the item was hung (and on what hanger and with what pip), as alleged at paragraph 405. Janice was required to size-tidy (i.e., sort all the items on a display by size) only the specific section of the floor she was allocated, rather than doing this each time she returned an item to the correct display (which could have been in any section of the department).” 120 Immediately under the heading “Retail Standards” at the top of page C4/19/68, this was said. “Ensuring the standards are achieved ensures a polished and professional department, tying together the four previous principles. They help support the replenishment routines and ensure a great shopping trip for the customer. Below are the 10 top tips for the shopfloor: 1. Clean and tidy - fixtures, fitting room, shopfloor and Clothing cash desk (if applicable). 2. Garment zips and buttons done up. 3. Fixtures not over or under filled. 4. Products in size order- smallest at the front on a multi sized arm. 5. All hanger tops facing the same way on a bar (? - like a question mark). 6. No product dragging on the floor or bottom of the fixture. 7. No product dragging over the top of the product below. 8. Product security tagged to company policy. 9. No damaged point of sale/graphics on display. 10. Would I buy it? Applied to returned/damaged stock before it is returned to the shopfloor.” 121 Given that passage, we could not accept Ms Humphreys’ evidence in paragraphs 109-110 of her first witness statement. In fact, we would have found it difficult to accept those paragraphs even in the absence of that passage, because we found it impossible to believe that the respondent would have wanted a customer assistant in the position of the JH to ignore for example the fact that items on a display to which the JH was adding an item were not in their correct size order. For the avoidance of doubt, we found the evidence of the JH in paragraph 178 of her first witness statement to be on the balance of probabilities true. It was this. “I see that Tesco have removed from my JD the fact that while I am Recovering, I will check that items on an arm are arranged in size order, with the smallest Case Numbers: 3304495/2018 & others 213 size at the front of the arm, and that I correct any mis-ordering. My understanding has always been that we are expected to arrange items in size order. This is how items of the same product are generally displayed in clothing shops, and therefore arranging the items in this way allows customers to more easily find the right size. A significant part of Recovery was re-ordering the sizes on each display arm.” 122 In any event, we accepted the claimants’ proposed words in closing submissions for paragraphs 401-403, 406 (which, despite its generality, in the context and given the disputes maintained here, we found to be material), 407-408 (which had to be read as descriptions of what putting stock out on display involved), 411 (since we could not accept that the respondent would not want a person in the position of the JH to seek to ensure that as much stock as possible was on display, consistently with the respondent’s Visual Merchandising principles and its Retail Standards), and 420 (since (1) it was consistent with what was said at C7/619/7 about even using a mending kit when necessary on returned items or their packaging, (2) it was to us obvious, applying what we thought of as common sense, that the JH was required to do her best to ensure that a repackaged item did not look as if it had been repackaged, and (3) it was said at C4/19/41 that “Loose Clothing items should be repackaged daily.”) 123 In addition, given the multiplicity of references in the respondent’s training materials to “merchandising” (see for example paragraphs 50 and 111-118 above), we accepted that the words “or merchandising” (without a capital “m”) were appropriately included in paragraph 512. 124 We resolved the issues about the correct description of the frequency with which the things referred to in paragraphs 416, 423 and 429 occurred in the following manner. We thought that the word “frequently” within the meaning of H31 was the best word to describe the frequency of the occurrence of the events described in all of paragraph 416 (which referred to the JH finding opened packets on Sundays), paragraph 423 (which related to the JH finding during Recovery a “two piece which has become separated”) and paragraph 429 (concerning the JH “identif[ying] damaged or incomplete items”), as opposed to what the claimants proposed, which was “continuously”. 125 For the avoidance of doubt, we concluded that the dispute in regard to paragraph 404 (about the question whether or not the JH might stand on tiptoes to reach the top of a high display) to be about something which was obvious. In order to reach the top of a display which is above one’s head, one has to either stand on tiptoes or use a support, such as, here, a kickstool. The IEs can be taken to know that. But for the avoidance of doubt, as a matter of fact, what the claimants proposed for paragraph 404 was in our judgment (on a balance of probabilities and having accepted the JH’s evidence on it in paragraph 174 of her first witness statement) correct. Whether it was relevant was another matter, and while we left it to the IEs to decide whether it was sufficiently relevant to be taken into account by them, we concluded that it was Case Numbers: 3304495/2018 & others 214 capable of being relevant so that they could, if they judged it necessary, take it into account. 126 For the avoidance of doubt, we thought that the claimants’ proposed words (at the end of submissions) for paragraph 188 were entirely apt. Those of the respondent, on the other hand, in our view were inapt. We quote from the first numbered paragraph under the heading “Factual correction” in the respondent’s closing submissions to illustrate why. “Ms Humphreys’ evidence is that JH did not need to have any particular regard to the Respondent’s merchandising plan or policies or to use her own discretion or judgment when filling the shop floor [{E4/9/48}, paragraph 229].” 127 Not only was it in itself unlikely that the respondent wanted its F&F staff to use no particular discretion or judgment when “filling the shop floor”, but it was directly contrary to many of the parts of the respondent’s training materials to which we refer in paragraphs 107-118 above. Even the respondent’s own submissions recognised that the words of the submissions which we have just quoted were inapt, as the next numbered paragraph (number 2 in the submissions box in the row of the table stating the respondent’s submissions on paragraph 188) referred to the need for the JH to use some judgment or discretion, albeit that it was then said to be only “minimal”. That was in the following passage. “2. JH was required only to transfer items from the F&F Warehouse to the shop floor and place them on the existing displays, making space as appropriate [{E4/9/48}, paragraph 230]. The Respondent’s merchandising guide did not affect the way JH filled the shop floor, JH was not required to follow any particular policy documents, and any discretion or judgment JH exercised was minimal. Any discretion extended no further than JH’s deciding whether to place items where there was already space on the existing display or otherwise removing duplicate sizes and/or merging arms of existing items where necessary to create space on the existing display. 3. Ms Humphreys designed the layout of the shop floor. It was not part of JH’s role to do so. 4. Nor did JH have to have regard to any planogram when filling, as opposed to when assisting with ad-hoc merchandising tasks during events, as JH accepted during [XX] [Day 17, p.129, line 13].” 128 The words “The Respondent’s merchandising guide did not affect the way JH filled the shop floor” were inconsistent with

128.1 what was said at the top of each of pages C7/616/4-8, which was this: “You can use your Visual Merchandising Guide to help”, and Case Numbers: 3304495/2018 & others 215

128.2 the following words on C7/623/22. “A Visual Merchandising Guide is produced every 6 weeks. This gives overview and information on how best to display new products. As each store is different, this guidance is key to making it work in your store.” 129 In addition, the words “JH was not required to follow any particular policy documents” were shown by the documents to which we refer in paragraphs 107-118 above to be wrong. 130 The words “Any discretion extended no further than JH’s deciding whether to place items where there was already space on the existing display or otherwise removing duplicate sizes and/or merging arms of existing items where necessary to create space on the existing display” were to a degree true, but also inaccurate given the fact that the JH was, it was in our view clear, not merely a cipher for Ms Humphreys, but also was expected to exercise her judgment when putting out new styles, for example, as shown by what was said at C7/226/38 about using “colours that coordinate together” as a “visual merchandisers way to entice customers to be more experimental”. “Some points to remember when using colour” were then stated, namely: “• Entice customers into the department by showering them with some colour and trigger the receptors in their brain!

• In co-ordination ‘pop’ out the key colour of the season. This helps balance colour flow through the fixture and department.

• Colour helps you deliver strong and effective blocked statements.

• When you are merchandising a large range of colours, blocking should be carried out light to dark and left to right to ensure balance is maintained.

• Have you displayed your attention grabbers and best stock in the most desirable way and are they easily found?” 131 The guidance on the following pages (39-42) of C7/226 was also, we thought, plainly applicable to the JH when she was putting stock out on the shop floor, i.e. replenishing. The guidance on pages 46-47 was probably as important as anything else, although it was less technical. It was about the respondent’s “fifth VM principle”, namely “Retail Standards”, as “Excellent Visual Merchandising go[es] hand in hand with excellent retail standards – you can’t have one without the other.” 132 For the avoidance of doubt, we concluded that at the very least the disputed content of paragraphs 190, 222, 223, 225-227, 230-232, 265, 266, 269-287, 289, 290, 292, Case Numbers: 3304495/2018 & others 216 293, 295, 296, and 298 was superfluous in the light of the training materials to which we refer in paragraphs 107-120 above and paragraphs 156-161 and below. 133 As for the disputed content of paragraph 288, the frequency with which the JH did “Ad-hoc Merchandising” was in all three cases correctly stated by the claimants to be “occasionally” (so that the word “occasionally” should also be used in the respondent’s proposed new words for paragraph 294). As for the way in which the JH did such merchandising, we found the respondent’s proposed words in relation to the opening part of paragraph 288 to be helpful and an accurate description of what “Ad-hoc Merchandising” involved. That was in part because of what Ms Humphreys said in paragraphs 400-404 of her first witness statement and in part because it was in accordance with the documents referred to in paragraphs 111-120 above. However, we accepted the claimants’ proposed words for new paragraph 288(b) (“when a large display already in situ is otherwise being moved to a different part of the F&F floor, or”) given what Ms Humphreys said in cross-examination on day 18 at pages 186-187 of the transcript for that day. Other findings relating to replenishment 134 Since paragraphs 191, 206, and 212 were summaries of what was said elsewhere, they were in our judgment inapt. We thought that the content of paragraphs 375, 376, 378 and 379 in part summarised other evidence in the EVJD of what was the JH’s work, and in part consisted of statements about the background which were at best contextual, but were probably evaluative. If and to the extent that paragraph 379 was about anything material (which we thought it probably was), we preferred the respondent’s proposed words for it, which fitted the reality. 135 Paragraph 382 described what the JH habitually did at the start of a Sunday shift. It was contended by the respondent that it was not part of the JH’s job for the purposes of section 65(6) of the EqA 2010 to “walk around the F&F department [at the start of a Sunday shift] to appraise the scale of the Recovery ahead.” We resolved that dispute in the manner stated in paragraphs 80 and 81 of Appendix 3 (at page 174 above). We resolved it in favour of the JH. 136 The claimants’ proposed words for paragraph 196 were in our judgment helpful and accurate. Even if, as Ms Humphreys said in paragraph 242 of her first witness statement, the JH and her colleagues did not complain that the running rails were “unwieldy” or “difficult ... to manoeuvre”, that did not mean that those rails were easy to move. However, we accepted the respondent’s position about faulty running rails and concluded that our finding stated at the end of paragraph 70 above applied also to running rails. Thus, we concluded that (1) some running rail faults were sufficiently minor to be overlooked, and (2) the JH’s work (as with that of all other persons employed by the respondent who moved running rails) was to continue to use running rails which were faulty unless the fault interfered to such an extent with the use of the rail that it was unsafe to use it, at which point the JH’s work involved causing the rail to be taken out of use. Case Numbers: 3304495/2018 & others 217 137 The disputes maintained in regard to paragraphs 192-193 were about details which were highly unlikely to be material to the assessment of the value of the JH’s work, not least because the precise order in which the JH did the tasks which she did was in our judgment immaterial. The disputes about the content of paragraphs 198-199, 201, 202, 205, 208, 219, 221, 244 (which was not even a dispute about a matter of fact; it was in reality about the description of what the respondent meant by the word “availability”), and 247, were about matters which we determine, in so far as in our judgment it was necessary to do so, in paragraphs 57-71 and 111-133 above and paragraphs 156-159 below. 138 The claimants’ proposed word of “regularly” for paragraph 203 was apt, given H31 and the respondent’s acceptance that a running rail would be caught in swing doors about once every two weeks. 139 The claimants’ proposed word for frequency in paragraph 207 was apt, especially given that the respondent accepted that it was for an event which occurred about four times a year. The dispute about the additional effort to move “loaded” “silvers” was maintained without any objective evidence of the difference in weight between a loaded “silver” and a loaded “running rail”. However, we noted that the respondent accepted that “some additional effort” was required to pull a loaded silver and bring it to a stop as compared with a loaded running rail, so the respondent plainly accepted that a loaded silver was heavier or less manoeuvrable than a loaded running rail. In those circumstances, we accepted the claimants’ proposed words for paragraph 207 in relation to the additional effort involved in moving a loaded silver. 140 We doubted that the dispute in regard to paragraph 215 would have been maintained if the parties had known that we were going to conclude that the JH needed to use judgment in her work, but in any event we concluded that the claimants’ proposed words were a correct statement of fact. Whether they added anything material was, however, another matter. We thought that they were more about the way in which the JH did her work than about the work itself. We reflected on the possibility that if she did not plan her route, then she would spend more time and effort in replenishing and concluded that it was therefore in the respondent’s interests for her to plan her route. Assuming (which we doubted) that this dispute was about something relevant, we accepted the claimants’ proposed words in paragraph 215 in preference to those of the respondent. 141 The claimants’ closing submissions include some about paragraph 239(d), since, it was clear, the respondent had originally objected to the proposition that the JH might have needed to go down onto her knees when putting shoes on display in the correct size-order on the lower rungs of a display. However, that dispute was not referred to in the respondent’s closing submissions, so we assumed that the respondent was no longer objecting to that proposition. We record here, for the avoidance of doubt, that we thought that the IEs would be able to assess the physical demands of replenishing the lowest rung of a display on the respondent’s shop floor. Case Numbers: 3304495/2018 & others 218 142 The parties disputed the extent to which the JH in practice found items of clothing on the shop floor which were intended by the respondent to be hanging but were in fact without a hanger, or with a damaged hanger, and what the JH was required to do in those circumstances. That dispute related to paragraphs 393, 395, 396 and 398. The dispute in regard to paragraph 393 was one about frequency: the claimants said that the JH continuously (i.e. applying H31, the event was “ongoing during a shift”) found items of clothing on the floor or draped over a display without a hanger or with a damaged hanger. However, the respondent, without any evidential basis for saying it, merely asserted that that was an exaggeration, and that the word should be “frequently”. We were confident on the basis of our own experience and on a balance of probabilities that there would have been at least one such event per shift, and probably more than that. However, it was not an “ongoing” event, so we accepted the respondent’s proposed word of “frequently”. 143 Paragraph 395 concerned a different question, which was what happened next when for example a hanger-less item was found. The correct question was what was the JH required to do, and did any particular difficulties arise in practice when seeking to do it. Clearly, the JH would have to find a hanger which was suitable for the item. The respondent used hangers with appropriate labelling, i.e. what the parties called the “correct ‘pip’”. The claimants proposed this wording for paragraph 395. “It is impossible to anticipate which type of hanger JH will need during Recovery, so each time JH needs a hanger, JH goes to the F&F customer service desk to get one, along with the correct ‘pip’ [397].” 144 By way of background, it is helpful to record here that the parties agreed the content of paragraph 397, which was in these terms. “Every hanger must be paired with the correct ‘Pip’, a colourful plastic cube with a garment size number clearly marked. A pip is threaded onto the hook of the hanger so that customers can easily identify what size the garment is without having to find and check the label. A box of various pips is also kept at the F&F customer service desk.” 145 The respondent asserted that paragraph 395 should be deleted, not on the basis that it was factually inaccurate, but on the basis that the JH “could (and should) have placed any items without hangers on the rail and found hangers for them at the same time, which would have been far more efficient”. We were not persuaded that the JH was required by either (1) the training materials or (2) any of the evidence before us, to follow any particular practice in dealing with items without hangers, although an obviously inefficient way of working would not be part of her work for the purposes of section 65(6) of the EqA 2010. In the circumstances, we concluded that the work of the JH in this regard was to get a replacement hanger. The frequency with which the need to do so was the subject of a dispute in relation to paragraph 396. The respondent proposed the words “around once a month” to describe that frequency. Case Numbers: 3304495/2018 & others 219 The claimants proposed the use of the word “regularly”. Given the tendency which we saw on the part of the respondent’s witnesses to diminish the impact of the claimants’ evidence, we concluded that it was at least one a month that that event occurred, but even if it were just once a month, the best word was still “regularly” within the meaning of H31. 146 Paragraph 398 concerned the difficulty or otherwise of removing “pips” from hangers. The respondent’s submissions on that subparagraph included a misrepresentation of the passage of the JH’s cross-examination on the issue of the difficulty of replacing a “pip” on a hanger. The relevant part of paragraph 398 as it stood by the time of closing submissions, to which the respondent objected, was in these terms (the underlined words having been added by the claimants, apparently with a view to reaching agreement with the respondent). “Some spare hangers already have pips on them which need to be removed before placing the correct pip on the hanger. To do this JH,

a. removes the current incorrect pip by squeezing the pip and pulling it off the hook of the hanger with some force,

b. searches in the pip box kept at the F&F customer service desk to find the correct size pip (for the item), and

c. threads it onto the hook of the hanger.” 147 The respondent’s closing submissions on this were in the following terms. “Factual correction 1. This is exaggeration. Ms Humphreys’ evidence is that replacing pips was a quick and easy task involving pulling off the incorrect pip and pushing on the correct one, and that no significant force was required [{E4/9/26}, paragraph 107]. JH agreed in [XX] that to put a pip on a hanger she just pushed it over the metal part of the hanger [Day 17, p.47, line 13].” 148 The respondent proposed instead, for the subparagraphs of paragraph 398, these words. “a. removes the current incorrect pip by squeezing the pip and pulling it off the hook of the hanger, b. attaches the correct size pip from the pip box by pushing it over the metal part of the hanger.” Case Numbers: 3304495/2018 & others 220 149 The whole of the passage of the cross-examination of the JH on the issue of the difficulty of replacing a “pip” was at line 20 on page 46 to line 13 on page 47 of the transcript of day 17, and was this. “Q. You mentioned also that you may need to put a new pip on the hanger. That would just be a question of pressing the pip over the metal part of the hanger, wouldn’t it? A. Our pips are really hard to get off, they’re so strong, and usually the only way I can do it is by a small clip hanger and I yank it off that way. Recently, I asked a customer to do it for me. He was asking me for a product and I couldn’t take the pip off as I was recovering and I asked him if he could do it, he had actually couldn’t pull that pip off. So it’s not just a case of pulling it off. It’s very, very stuck on. Q. Okay. Mrs Cannon, what I was asking about was putting it on. A. Yeah, yeah. Q. And you would just push it over the metal part of the hanger – A. Yeah, you would – Q. -- wouldn’t you? A. Yes, sorry, counsel, you would just put it.” 150 The word “put” in the last line evidently should have been “push”. 151 Ms Humphreys said this in paragraph 107 of her first witness statement. “Whilst Janice sometimes needed to replace the pip from a hanger with one matching the item, this was a quick and easy job involving pulling off and pushing on the respective pips. It did not require her to use any significant force, contrary to paragraph 398 of the EVJD.” 152 We accepted the JH’s evidence given in cross-examination about the difficulty of pulling the pips off. Paragraph 398(a) was therefore not an exaggeration, at least as far as part of the time was concerned. It was entirely possible that some pips would come off more easily than others. Common sense suggested that both (1) what the JH said about the difficulty of pulling pips off and (2) what Ms Humphreys said in paragraph 107 of her first witness statement was true for part of the time, so that the full picture was given by neither of them. In any event, we accepted the claimants’ proposed words for paragraph 398(a), amended slightly by the replacement of the words “with some force” with these: “which regularly required considerable force”. We decided on the use of the word “regularly” in that regard because it was something that happened, we concluded, at least once a month. Case Numbers: 3304495/2018 & others 221 153 The respondent objected to the claimants’ proposed words for paragraph 398(b) on the basis of Ms Humphreys’ evidence on the issue, which was primarily in paragraph 533(n) of her first witness statement, which was this. “The box of pips at item {C4/9/32} of the Bundle (Photo 32) is not organised as it was during the RP [i.e. the relevant period]. When I was working in the store, all the pips were stored in logical order so the correct pip could be easily found. The box was also stored under the F&F desk, rather than on a trolley, and during the RP was kept separate from what appears to be colleague shopping.” 154 The claimants’ response to that was that it was just an “editorial” correction. It was not the subject of cross-examination. While we accepted that not every point which was not put to a witness in cross-examination was accepted by the cross-examining party, we found here that the claimants accepted that the pips were in a logical order in the pip box. However, the reality was that the job of the JH was to find a correct pip and put it on the hanger to be used for the item which needed the hanger. Variations between stores in the methods of storing of pips were in our view one of the minor differences which had to be regarded as irrelevant to the task of determining the value of the work done when obtaining the pips. That was because the value of the work done for the purposes of section 65(6) of the EqA 2010 would otherwise vary from store to store, and it would mean that minute differences were relevant for the purposes of determining value, but (applying section 65(2)) not for the purpose of determining whether the work was like work within the meaning of section 65(1). Thus, we decided that the claimants’ proposed words were apt. The IEs will be able to assess the demands on a JH arising from the need to obtain a correct pip from a pip box. Similarly, we thought (applying our own experience of handling shop clothes hangers with pips on them) that putting a pip over a hanger’s curved hook was better described as threading it than as simply pushing it. 155 The respondent opposed the wording of paragraph 424 on the basis that “JH was not required to tidy the entire F&F department singlehandedly.” That was not a dispute about the factual basis for, and therefore the accuracy of, paragraph 424. It was in our view about an irrelevant matter. Scanning 156 The content of paragraphs 189, 209-211 and 254 related to the scanning of items. It was in our judgment less helpful and accurate than the content of C7/865, which was in our judgment the best statement of how to use a “handheld RFID device”. For the avoidance of doubt, we concluded that the JH’s recollection about how the RFID portals and the RFID devices worked in practice was mistaken. That mistaken recollection was shown also by what was said in paragraph 237 about the use of an RFID device. As it was said at the head of C7/865: Case Numbers: 3304495/2018 & others 222 “To update product locations on the stock inventory system, when the product moves from warehouse to sales floor (or vice versa) it must be updated. This usually happens by transporting product between the RFID portals which are located between the warehouse and sales floor. If a store has no portals installed or when a portal is not able to be used e.g. it is not functioning, colleagues must manually update stock movements using the RFID handheld device.” 157 Ms Humphreys’ second witness statement contained an explanation for the JH’s misunderstanding which made sense. In paragraph 10 of that statement, Ms Humphreys said this. “Having read Janice’s First and Second Witness Statement I believe that she is confusing how movement scans are now conducted as the Portals are no longer at the Watford store and so movements are all scanned manually. Janice may also be confusing delivery scans which would also pass through Portals but did require a top-up scan. To do this, colleagues would need to put the RFID device into a different setting; “Delivery Acceptance” and then complete the actions specified at paragraph 13(a-c). [That was probably a crossreference to paragraphs 8(a-c) of Ms Humphreys’ second witness statement, in fact.] I accept that we did scan in the delivery to top up to 98% as soon as it arrived. The 98% is the delivery received against the delivery invoice.” 158 That was in part a correction of what Ms Humphreys said in the first three sentences of paragraph 168 of her first witness statement. The whole of paragraph 168 was in these terms. “Since the RFID portals at the entrance of the F&F Warehouse scanned around 96% of stock as it was entering or leaving the F&F Warehouse, there was no requirement or expectation for Janice to scan the items later if an RFID device were not immediately available, contrary to paragraph 102 of the EVJD. Indeed, there was no requirement during the RP for Janice or other F&F colleagues to scan the items with the RFID devices at all. This was an optional ‘top-up’ which colleagues could do if they wished. The situation during the RP contrasts with that after the Evaluation Period, when the portals were removed. Janice and her F&F colleagues now do need to scan all items using the RFID device.” 159 We agreed with Ms Humphreys’ analysis in paragraph 10 of her second statement: the JH had confused the situation which pertained after the removal of the portals with what was required when the portals were in place. Sales and markdowns 160 That which was involved in “Sales and Markdowns” was described in general terms at C7/619/9-11 and C4/19/27-29 and 35-36, when read with the documents or Case Numbers: 3304495/2018 & others 223 sections of documents to which we refer in the preceding paragraphs above (principally paragraphs 111-131) describing what the respondent called “merchandising”, and “retail standards”. In addition, the WIBI (would I buy it?) principle plainly applied to F&F stock as well as to all stock on display. That was clear from for example C7/143/5 and C7/227/78. Thus, that which Ms Humphreys said in paragraph 298 of her first witness statement was potentially misleading. That paragraph was as follows. ‘At no point were Janice or any other colleague required to check that any item was in “perfect condition” as alleged at paragraph 221 of the EVJD. As Janice confirmed at interview, by this she meant that she “just look[ed] at it” – see page 105 of the interview transcript, item {C4/4/27} of the Bundle.’ 161 Most customers will not want to buy something that is in any way damaged or dirty. That is the point of buying new products. Whether one ought to describe the product as “perfect” when it is new is an unhelpful question. The issue here was whether the JH was required to apply the respondent’s “would I buy it?” policy, which she plainly was. That policy required her to ask herself whether she would buy a product on sale and, if not, then “remove it from the shelf”, i.e. immediately. The reason for that was stated at C7/823/47, where (as part of the guidance to new staff of all kinds at any of the respondent’s stores) these things were said.

161.1 “As you go about the store, if you see a product that isn’t of the quality you expect, think ‘Would I Buy It?’ If your answer is ‘no’, then customers won’t either. Having products of low quality on the shelf gives a bad impression to customers.”

161.2 “You can remove products from any shelf if you think they wouldn’t pass the ‘Would I Buy It?’ test. Either place the product in the department’s waste area or give the product to a manager or member of staff from that area, who will deal with it.” 162 Thus, the respondent’s opposition to the claimants’ proposed words for paragraph 389 (and therefore also paragraphs 427 and 428, the dispute in relation to which was about the same thing) was mistaken: the JH was required to check each item of clothing which she had taken from the fitting room rail as she put it back on display, and not just glance at it. That was, in fact, accepted by Ms Humphreys in crossexamination, as recorded in the passage from line 6 on page 84 to line 11 on page 87 of the transcript for day 18, although it was put to her (wrongly) that there was “no guidance given by Tesco [as] to how carefully you check”. 163 Equally, the claimants’ proposed content of paragraphs 390-391 about the extent to which the JH was required by the respondent as part of her work for the purposes of section 65(6) of the EqA 2010 to check the state of stock as she was replenishing the items on display was wrongly disputed. The dispute was resolved by the training materials to which we refer in paragraphs 160-161 above. Case Numbers: 3304495/2018 & others 224 164 The dispute about paragraph 432 was described by the claimants as an “editorial” one. We could not see why the respondent objected to the inclusion of the words “so that customers can identify the new price” and proposed that the JH and her colleagues only “may” (i.e. she might or might not) “print off a ‘sale sticker’ showing the new price”. The respondent’s stated reasons were as follows. “Ms Humphreys’ evidence is that sale items were generally picked up by other F&F colleagues tasked with marking down a large number of items [{E4/9/57}, paragraph 283], JH only engaged in ad-hoc markdown tasks for all or most of her shift no more than one or twice per year [{E4/9/80}, paragraph 428], and marking down of individual items around once a week when a sale launched, and with decreasing frequency thereafter [{E4/9/65}, paragraph 340]. Accordingly, it is inaccurate for this paragraph of the EVJD to state that JH “must” print off a sale sticker; the word “may” more appropriately describes the frequency with which this arose. 165 It was in our view impossible to avoid the conclusion that what the claimants asserted the JH did was required when what was referred to at C4/19/28 as a “Central Markdown” was required. We therefore accepted the claimants’ proposed words, including the words “so that customers can identify the new price”, which were explanatory, albeit not essential. For the avoidance of doubt, the role of the JH in this regard was shown most clearly by C4/19/28, and she did what was required by way of printing off sale stickers. The fact that her colleagues did that too was irrelevant here. 166 The dispute about paragraph 433(a) related ultimately to the issue of frequency. If it was only once a month that the JH carried out what she called an “ordinary markdown”, i.e. of stock which was marked down purely because it was now regarded as old, and was not damaged, then the correct word to describe the frequency was “regularly”. The respondent proposed that the occurrence of the event “approximately once a month” be recorded. That fitted with the definition of the word “regularly” at H31. Thus, in reality the parties were in substance agreed that the event occurred “regularly” for present purposes, and in any event we accepted that the word “regularly” was applicable. The other words proposed by the claimants for paragraph 433(a) to which the respondent objected helped rather than hindered our understanding of the subject-matter of the paragraph, so we accepted them also. 167 Without any evidence to support it, the claimants proposed adding some words to paragraph 433(b) to the effect that there were markdowns on a “rolling six-to-eight week basis” after a “department-wide ‘refresh’, also known as a ‘what good looks like’ review”. That proposed addition was not the subject of any evidence given by Ms Humphreys either. The “department-wide ‘refresh’, also known as a ‘what good looks like’ review” appeared to be the procedure which was described at C4/19/28 as “Local Markdown”. At C4/19/79, this was said. Case Numbers: 3304495/2018 & others 225 “Every 6-8 weeks, Clothing space allocations and department flow adjusts to reflect seasonal changes in demand for product. To ensure our customers can get what they want as well as comply with our corporate Clothing strategy a full layout exercise must be completed every time a new Instore Guide and matrix is issued. Completing this exercise will also ensure that we don’t have too much or not enough stock of certain products sitting in our Clothing Warehouses.” 168 On the preceding pages of C4/19, the “new Instore Guide and matrix” were described. On page 76, this was said. “The Instore Guides arrive 2 weeks before each planned layout change/what good looks like date and must be used in conjunction with your space matrix. The Instore Guides are produced for womens, mens and kids outerwear. The front cover:

• Highlights key changes to space and layout by department. Also gives information such as key products that will be launching or merchandising techniques that are used for example, blocked or coordinated merchandising. Page 2:

• Details the priority flow/order that you should merchandise your department. This can change for each season/phase that is being launched. This is the most important page of the Instore Guide.

• The order of departments relates to your priority, secondary and tertiary space for example, F&F blue in priority space, essentials and sale in tertiary space. Page 4 onwards:

• This section contains all the detailed merchandise plans for outerwear. Using your Space Matrix you should identify your range for each merchandise group and find this within the Instore Guide before you begin merchandising. You must always follow these plans as they reflect the company strategy. The majority of product shown will be available for you to implement what good looks like, however as we plans are produced for a moment in time [sic] you will need to make logical amendments to the layout throughout the phase.” 169 On page 77, under the heading “Understanding the Clothing Space Matrix”, this was said: Case Numbers: 3304495/2018 & others 226 “The Clothing Space Matrix arrives in stores 2 weeks before each planned layout change/what good looks like and shows a store specific breakdown of Clothing space and ranges.” 170 On page 78, this was said. “A new layout communication will arrive instore via the Workplan 2 weeks before each planned layout change/what good looks like and must be used in conjunction with your Space Matrix, Instore Guides, point of sale guide and Clothing floor plan. The layout communication is in three parts. Part 1 - Space change information includes trend by department and space change information, for example departments that [are] being introduced, departments that are being extended to more stores or departments that are featured in less stores. Part 2 - Clothing layout plans shows ideal layout plans and flow for various types of store and shows location of priority rolling wall ends. Stores must identify the plan that most closely represents their Clothing mat and use it to plan your layout (these are key when planning your layout). Part 3 - Planning your space details planning your block layout, planning essentials space and planning outerwear space. Within your layout communication pack sent via the Workplan before your space change this pack is one of the most important tools to help you achieve your layouts, in this session you must go through the pack in detail and discuss each point.” 171 At page 9 of C7/616, this was said: “All clothing products have an expected lifetime from the day that we receive them in stores to the day that they should have sold out. When clothing products do not reach their expected sales, the price is reduced to encourage further sales. These products need to be cleared to make room for next seasons range.” 172 All of the passages set out in the five preceding paragraphs above, taken together, provided strong support for the claimants’ proposed new words for paragraph 433(b), so we accepted them. As for the dispute in regard to the frequency with which the “ad-hoc Markdown task” referred to in that subparagraph occurred, the respondent said that it was at most twice a year that the JH was asked to carry out such a task, and the claimants proposed the word “occasionally” to describe the frequency of that occurrence. If the respondent’s estimate of at most twice a year was accurate, then the claimants’ proposed word best reflected the schematic of Case Numbers: 3304495/2018 & others 227 H31. We therefore accepted the word “occasionally”. That finding also resolved the dispute about paragraph 444. 173 The content of paragraph 434, which concerned “Ordinary Markdowns” (or, as the respondent contended, “Routine Markdowns”; we state our solution in regard to that dispute in the final sentence of this paragraph), was disputed by the respondent in part on the basis that the JH had not put before us cogent evidence that in practice she did the things which were referred to in that paragraph. It seemed to us that the factual content of the claimants’ proposed words for paragraph 434 stated (or should be read as stating) what a customer assistant in the F&F department would have been expected by the respondent to do, especially when one bore in mind the content of the documents to which we refer in paragraphs 167-171 above. We therefore accepted the claimants’ proposed words for paragraph 434 (read as a statement that it was part of the JH’s work for the purposes of section 65(6) of the EqA 2010 to realise that a reduction in price was required in the circumstances stated in the paragraph), but with an addition, the need for which arose from the fact that the content of paragraph 434 was also resisted by the respondent on the basis that the issue of frequency needed to be addressed. That (i.e. the need to address the issue of frequency) was a valid point, but the respondent’s proposed solution was in our judgment too detailed and as a result unhelpful. That was because the proposed solution focused on the various reasons why there might be a need for an “ordinary” or “routine” markdown, when the real issue was how often there was a need for such a markdown. In the absence of any proposed text relating to the frequency from the claimants, we concluded that the best way to resolve the dispute about frequency and terminology was to say that the words “JH comes across products which may require Ordinary Markdowns” in the opening part of paragraph 434 should be replaced by “the JH regularly came across products which needed to be marked down simply because of their relative age and not because of their condition”. 174 The content of paragraph 438 was disputed because it was asserted by the respondent by reference to evidence from Ms Humphreys that the JH did not use a desktop sticker printer at the F&F customer service desk before 2014 because there was no such printer at the store when she, Ms Humphreys, worked there. The respondent’s submission was this, under the heading “Factual correction”: “Ms Humphreys’ evidence [{E4/9/66}, paragraph 345] is that whilst JH used one of the five hand-held sticker printers or a pre-printed roll of reduction stickers to mark down items, there was no desktop sticker printer on the F&F desk during her time at the store.’ 175 That was said in opposition to the claimants’ case, stated in paragraph 438 as it stood at the close of submissions, that the JH used the “desktop sticker printer at the F&F customer service desk ... before 2014 when the hand-held printer was not working / not available, as JH ha[d] to wheel the silver / rail to the F&F customer service desk in order to Mark Down the items”. The JH gave direct evidence on this in paragraph 184(c) of her first witness statement. Ms Humphreys was not at the Case Numbers: 3304495/2018 & others 228 store before 2014, so she could not give any relevant evidence about that evidence. In those circumstances, we could see no good reason to reject the claimants’ proposed words for paragraph 438, so we accepted them. 176 Paragraph 439 gave rise to a dispute about whether the JH (1) counted the number of markdown stickers required, or (2) just printed out the required number. The latter proposition was advanced by the respondent on the basis of Ms Humphreys’ evidence in paragraph 346(a) of her first witness statement that the RFID device stated how many items had to be reduced. There was no documentary evidence before us on this issue: neither C7/865 nor C7/866 referred to the use of the RFID device to identify the number of items to be marked down. However, we concluded on a balance of probabilities that it probably did state how many items needed to be reduced. Nevertheless, it was clear, the items would need to be found and only when they were found would a markdown label need to be printed. In those circumstances, we were driven to the conclusion that the claimants’ proposed words best reflected the factual position, so we accepted them. 177 It was alleged by the respondent in relation to paragraph 441 that the frequency with which the JH had to get new blank labels from the F&F customer service desk was properly classified as “occasionally” rather than, as claimed by the claimants, “regularly”. That was despite the fact that Ms Humphreys said in paragraph 348 of first witness statement that the “sticker printer ran out of labels ... around once a month” at which point the JH “went to the F&F desk to obtain new blank labels to feed into the printer”. Thus, the dispute was maintained against the background that the respondent’s own evidence supported the claimants’ words. The dispute was therefore wrongly maintained. The appropriate words for paragraph 441 would therefore have been that the JH regularly had to go to the F&F desk to obtain new blank labels to feed into the printer. Accordingly, that was our finding of fact in relation to paragraph 441. 178 As for the words of paragraph 442, the claimants’ proposed words reflected those which we have set out in paragraph 118 above as a quotation from C7/619 (“Once you’ve reduced an item, this should be merchandised within your sale area”), and were therefore apt. Thus, we accepted the claimants’ proposed words for paragraph 442. Fitting rooms 179 Part of the “Present” phase of the “Replenishment Cycle” was doing what was required in regard to the fitting rooms. By way of background, the importance of those rooms was recorded at C7/616/14, in the following manner. “The fitting room is a key customer touchpoint and an important part of the customer experience. Case Numbers: 3304495/2018 & others 229 It is also an ideal place to drive sales, through loving our products and having the confidence to give outfit advice.” 180 That which the JH was required to do by way of helping customers was stated on the same page, as these things:

180.1 “providing different sizes”;

180.2 “[giving] suggestions on alternative products”;

180.3 “[advising] on latest trends and complimentary accessories”; and

180.4 “[sharing her] passion for [the respondent’s] products”. 181 It was also clear from that page that the JH and her colleagues were required to try to ensure that there was a “tape measure at the fitting room to help”. The “key routines” to use “when working in the fitting room” were stated at pages 15-20 of C7/616, and other guidance on the use of the fitting rooms was at C4/19/55-57. By way of illustration, this was said at the top of C4/19/56 about advising customers. “Ask staff to think about their responses, should a customer ask you for your opinion on what they are trying on. It is important to get the balance right between appearing genuine and also not offending the customer.” 182 The question whether it was part of the JH’s work for the purposes of section 65(6) of the EqA 2010 to check the 6-8 fitting rooms at the store on Sundays to see if they were clean was disputed in relation to paragraph 383. This was said at C4/19/57, to be what by “all Customer Assistants who manage the fitting rooms on the Clothing Department ... should be doing when the fitting rooms are quiet”: “Checking every single fitting room is clean tidy and free of any rubbish.” That showed that if the JH did indeed go to the fitting rooms at the store at the start of her Sunday shifts and check whether they were clean, then she would be doing the job of a customer assistant in the F&F department, unless (1) someone else was instructed to do it, or (2) she, the JH, was instructed not to do it. 183 It was Ms Humphreys’ evidence, in paragraph 96 of her first witness statement, that she “usually asked a member of the Day team (whose shift partly overlapped with [the JH’s] shifts, finishing at 10pm on a Thursday and 6pm or 7pm on a Sunday) to tidy the fitting rooms and return to the shop floor the unwanted clothing which had been hung on a rail in the fitting room throughout its opening hours”. However, as Ms Humphreys said in paragraph 98 of her first witness statement, the JH “occasionally (around once a month), assisted in returning items of clothing from the running rails in the fitting rooms to the shop floor, as part of tidying the department.” The latter thing occurred, said Ms Humphreys in the same paragraph, “usually ... when there were fewer colleagues on the Day shift than usual and/or more items to return to the shop floor, meaning that the Day team were unable to finish this task before the end Case Numbers: 3304495/2018 & others 230 of their shift.” In paragraph 176 of her first witness statement, the JH said that she “would clear up the fitting rooms approximately once a month.” That accorded with what Ms Humphreys said about the frequency with which the JH did in fact deal with clothes that had been tried on in the fitting rooms and not bought. All that the JH did was, she said in paragraph 176 of her first witness statement, “make sure all clothes and rubbish had been removed [and if] anything had been left there, or if there were spillages or big smudges on the mirrors, then [she] would clear it up.” 184 Therefore, Ms Humphreys did not say that the JH should not have checked to see whether the fitting rooms were clean, tidy, and free from rubbish. It was implied by C4/19/57 that it would have been the JH’s job to do that if she was assigned to the fitting room and there was a quiet moment. If she had not done that then the next time a customer assistant in the store was responsible for managing the fitting rooms, that customer assistant would have had to do it. However, that could have been fitted into a quiet moment. Nevertheless, it could not be said that it was not to the respondent’s advantage for the JH to do that quick check. In those circumstances, we concluded that it was part of the JH’s work for the purposes of section 65(6) of the EqA 2010 to check at the start of her Sunday shifts to see whether the fitting rooms were clean, tidy and free from rubbish even though her line manager might never have found out about her doing it. 185 Paragraph 384 was in these terms. “JH does a visual check of the items hanging on the rail [of clothes that had been tried on but not bought] to get a rough idea of what is there and what needs to be put back out on display.” 186 The accuracy of that was disputed by the respondent, on the basis of the following paragraph (number 99) of Ms Humphreys’ first witness statement. ‘If returning clothing from the fitting room rail to the shop floor, there was no reason why Janice needed to do a “visual check” as is claimed at paragraph 384 of the EVJD. She simply pulled the fitting room rail around the shop floor until all the clothing had been returned to the relevant displays, including any items of clothing she came across on the shop floor which were out of place.’ 187 That was a dispute on the facts, about which we understood Ms Humphreys was unable to give direct evidence as she would not normally be present at the store on a Sunday. The respondent could have contended that it was not part of the JH’s work to carry out a visual check of what was on the rail of clothes to be dealt with, but that would have had to be assessed in the light of the JH’s evidence in paragraph 177 of her first witness statement, which was in these terms. “When I go to the fitting rooms to get the rail of items which customers have tried on, the first thing I do is stop and have a look at the rail to get a rough idea of what is there and what needs to be put back out on display. I then start to Case Numbers: 3304495/2018 & others 231 organise the items on the rail to put women’s products on one end, children’s products on the other, and men’s in the middle. Arranging them in this way makes it quicker for me to return the items to their respective displays.” 188 That was completely credible evidence, and, indeed, evidence of a very sensible way of working. The way of working was further explained and described in paragraph 28 of the JH’s second witness statement. Paragraph 392 was expanded slightly during closing submissions, apparently in the light of that further evidence of the claimant. As expanded, paragraph 392 was as follows. “If the fitting room rail becomes full as JH moves around the department Recovering, JH returns undamaged items from the rail to the displays in order to free up space for other items as JH Recovers. In order to carry this out efficiently JH first sorts the items on the rail into men’s, women’s and children’s clothes.” 189 However, there was no evidential basis in either paragraph 177 of the JH’s first witness statement or paragraph 28 of her second witness statement for the first sentence of paragraph 392. That sentence was, nevertheless, not opposed by the respondent. The respondent simply opposed the inclusion of the second sentence, basing that opposition on paragraph 104 of Ms Humphreys’ first witness statement, which was in the following terms. “If the fitting room rail became full of items of clothing, Janice returned the items from the rail to their respective displays. I did not require or expect Janice to sort the items on the rail before returning them to their displays, as she states at paragraph 392 of the EVJD. If she did this, it was unnecessary.”

[190]In the circumstances, we accepted that what the JH did when going to the fitting rooms to get the rail of items which customers had tried on was accurately described in paragraph 177 of her first witness statement and paragraph 28 of her second witness statement. That finding of fact accordingly determined the disputes about the content of paragraphs 384 and 392.

[191]There was a dispute in regard to paragraph 385 which, as proposed by the claimants by the time of closing submissions, was in these terms. “Having appraised the department at the start of the shift, JH pulls the fitting room rail to the untidiest section first and methodically works around each section, returning clothes to their correct displays until the department is fully Recovered.”

[192]The respondent’s submissions in response were these. “Factual correction Case Numbers: 3304495/2018 & others 232 1. Ms Humphreys’ evidence, both in her Witness Statement and in [XX], is that, since during almost all of JH’s Sunday shift the store was closed (JH’s Sunday shift starting towards the end of the store’s opening hours), it was irrelevant which section of the floor she and the rest of the team began by tidying, as the entire floor needed to be tidied eventually [{E4/9/25}, paragraph 100], [Day 18, p.83, line 3]. 2. It therefore made more sense, and wasted less time, for JH to begin by tidying the nearest display. 3. JH was not required or expected to unnecessarily complicate the task by approaching the displays in order of tidiness, as Ms Humphreys noted in [XX] [Day 18, p.83, line 4]. 4. This paragraph should therefore be amended in line with the Respondent’s proposed changes.”

[193]The order in which the JH did the work of putting back stock on the fitting room rail was in our judgment irrelevant to the question of what was her work for the purposes of section 65(6) of the EqA 2010. There was nothing in the respondent’s training materials which stipulated that order and no evidence before us that Ms Humphreys or anyone else acting on behalf of the respondent instructed the JH to follow any particular order. However, it was plainly not part of the JH’s job only to return stock by going to the untidiest section first. We concluded on the evidence before us and on the balance of probabilities that what the respondent required the JH to do as part of returning fitting rail stock was simply to put it back as quickly as possible, but adhering to what the respondent called its Retail Standards. Doing that was accordingly part of her work for the purposes of section 65(6) of the EqA 2010. That was our resolution of the dispute in regard to the content of paragraph 385. Stock inquiries

[194]How to deal with stock inquiries in an RFID store was described at pages 22 to 23 of C7/616. The content of those pages was simple, so it is convenient to repeat it here rather than incorporate it by reference. That content was as follows. “What are stock enquiries? Customers may enquire about a product in a different size or an alternative colour. The Stock Enquiry Function on your RFID handheld enables you to answer customer queries around stock availability quickly, efficiently and with confidence. Why are stock enquiries important? Case Numbers: 3304495/2018 & others 233 RFID gives us immediate stock information. That helps you find products quickly, make less trips back and forward to the warehouse and spend more time serving our customers What help with stock enquiries can we offer? Alternative sizes – Just scan the product label to find out if there are alternative sizes in the warehouse. Local stores – If a size is out of stock you can complete a local store search. This will let you and your customer know if a store nearby has the item in stock.”

[195]The factual disputes maintained by the parties in relation to stock inquiries arose in relation to paragraphs 356, 357, 359 and 362. We doubted the need to resolve them, but in this instance were able to do so by reference to the parties’ contentions. The frequency issue in paragraph 356 was (given the acceptance by the respondent that no RFID device would be available about once every six months) correctly resolved by the use of the word proposed by the claimants: “occasionally”. The dispute concerning frequency which was maintained in relation to paragraph 357 was best resolved by the use of the word “frequently”, given that(1) it was the respondent’s case that the JH “on most shifts” until 2017 did what the respondent asserted in relation to assisting customers to use the F&F online terminal on the shop floor, and

(2) that was in substance what the claimants asserted. The respondent’s proposed words for paragraphs 359 and 362 in relation to what the JH did when helping customers to use the online terminal were more apt than those proposed by the claimants since the issue was what the JH was required to do until 2017, not what she knew about what she was required to do. Promotions and point of sale banners

[196]It appeared to us that the word “promotions” as used by the claimants went hand-inhand with the words “Point of Sale” (abbreviated to “POS”). That was clear from the box on the bottom left of the four boxes on page C7/227/74, where it was said that POSs were used in part for promotions. On the next page of C7/227, it was said that the reader should “refer to your Visual Merchandising Principles Guide for more information on how to use all of the POS effectively.” It was also clear from the content of paragraphs 447-453 that the topics of the use of POSs and promotions were intertwined. We therefore doubted the value of separating out from the topic of how to deal with POSs the topic of promotions. In fact, the parties appeared to be in agreement about the respondent’s requirements in regard to promotions POSs, and it appeared that they were in dispute only about the extent to which the JH was involved in changing the POSs for promotions. For example, in regard to paragraph 451 (and paragraphs 452 and 466, which were about the same thing, namely putting up or taking down POSs for promotions), the respondent accepted that it was the night shift team’s role to put up a promotion POS if it arrived during their shift and Case Numbers: 3304495/2018 & others 234 that a promotion POS might be taken down by the night shift team. That was based on the following passage in Ms Humphreys’ first witness statement. “414. Promotions usually launched and were active on the tills at midnight. Sometimes I asked the Night team to put up POS, but to avoid disrupting their regular work, I often came in early the following morning with the Day team to do it.415. Whilst ideally the POS were intended to be put up as soon as possible after the promotion was activated on the till, sometimes they were not put up until between 6am and 8am, after the Night shift had ended. POS were always taken down by either the Day or Night team when the promotion ended. Promotions usually ended on a Sunday, and the POS were taken down whilst the store was closed to the public.

416. I instructed Janice to put up or take down POS around twice a year.”

[197]In reality, therefore, the only thing that the parties disputed in relation to paragraphs 451, 452 and 466 was the frequency with which the JH put up or took down POSs for promotions. The claimants proposed the use of the word “occasionally” in paragraph 452 (which was really the second part of paragraph 451) and paragraph 466 (which was about how the JH took down promotions POSs). We thought that the JH and her colleagues would not have put up or taken down POSs only when they were specifically instructed to do so, and that was borne out by what the JH said in crossexamination on the matter as recorded at pages 145-147 of the transcript for day 17. In the circumstances, we accepted the first of the disputed sentences proposed by the claimants for paragraph 452, corrected editorially to “The JH put up POSs occasionally”. The second proposed sentence (“JH reprioritises JH’s work accordingly [42] and [50].”) initially appeared to us to be irrelevant because it was about the order in which the JH did her work. However, what the JH said about it (in paragraph 188 of her first witness statement) was this. “Tesco have removed the fact that when I am asked to do an ad-hoc task of putting up POSs, I re-prioritise my work accordingly. It is true that in those circumstances I re-prioritise and work differently because I have more to get done. I would have to put up all the POS but also do everything I could to make sure the delivery was complete. I would be more focused and work at a faster pace.”

[198]That was not just about the order in which the work was done. However, it was not about the work that was done: it was about the conditions in which it was done. Given that we accepted that the JH worked under time pressures (as recorded by us primarily in paragraphs 54 and 55 of our judgment of 12 July 2023; although if our revised view of the impact of PI rates, as stated in paragraphs 62 and 63 of our second reserved judgment, at page 23 above, is correct then those time pressures Case Numbers: 3304495/2018 & others 235 were in any event irrelevant at this stage), we saw no reason to include the second proposed sentence of paragraph 452.

[199]While the claimants’ closing submissions worked on the basis that a dispute was maintained in relation to the content of paragraph 456, the respondent made no submissions on that paragraph in its written closing submissions, so we assumed that the respondent accepted the claimants’ proposed words in their final form for that paragraph. We concluded that it was right to record here that the JH would have had to find the right frame for a POS, as shown by for example the pictures on C7/227/73.

[200]As for the question whether the JH would need to lift a POS above her head when standing on a kick stool to put up the POS in tandem with a colleague (which was the subject of what was in the end a half-hearted dispute by the respondent of the proposed content of paragraph 461),200.1 C7/227/73 showed that the JH might need to do so, and

200.2 Ms Humphreys accepted in cross-examination that that was so (as recorded in lines 5-13 on page 190 of the transcript for day 18), and we therefore accepted the claimants’ proposed words for paragraph 461, despite Ms Humphreys’ evidence in the final sentence of paragraph 424 of her first witness statement, which was that “Since she was standing on a stool, Janice did not need to hold the POS above head height.” (3) Put Back

[201]The third and final phase of the “Replenishment Cycle” (which the respondent called “Put Back”) was described in some detail in C7/619. The first part of that cycle was “backstock replenishment”. It is convenient here to record what was said in that regard at C7619/13, which was this. “What is backstock replenishment? Any product that could not be displayed on the shopfloor should be returned to your warehouse. You’ll need to hang a ‘Red to Rack’ riser on the rail to show your colleagues that this product is now backstock and ready to be put away within the area. Don’t forget to move backstock items through your RFID portals to update stock records. Why is it important? Case Numbers: 3304495/2018 & others 236 Moving products into Backstock means that our shopfloor is kept clutter free, in line with our retail standards. You’ll need to replenish throughout the day to ensure that we have good availability for our customers on the shop floor.”

[202]That passage showed that the word “availability” had to be interpreted as meaning keeping up levels of stock on the shop floor so that there was as much stock as possible available on the shop floor to be bought by customers, but maintaining the respondent’s retail standards (about which we have made factual findings in paragraphs 111-122 above), including by seeking to(1) ensure that displays were attractive,

(2) avoid clutter, and

(3) avoid over-filling the racks and displays.

[203]Using the “Out of Stocks” function on the RFID handheld in the F&F warehouse would (as stated on C7/619/14) “identify products that are missing from the shopfloor”, meaning (see C7/619/15) that it would show “exactly what products, and what sizes are needed.” The JH would then need to “Simply pick these products, and place them onto a rail” and then (see C7/619/16) “walk them through the portals onto the shopfloor”.

[204]Given the findings which we make in the two preceding paragraphs above and in paragraphs 46- 47 above, we could not see a need to determine the details about which the parties disagreed in paragraphs 247-250, 256-258, 260, and 263. For the avoidance of doubt, we thought that it was incontrovertible that (as indicated, but not stated precisely in this way, in paragraph 249) if the JH saw a gap in a display, it would be her job to try to fill it. That was in our view obvious. It was also shown by the text which we have set out in paragraph 108 above (“You notice a display that is short of stock so you take ownership to resolve the problem.”)

[205]As for the availability targets to which we refer in paragraphs 54 and 55 of our judgment of 12 July 2023, and the JH’s evidence set out in paragraph 54 of that judgment, we now state for the avoidance of doubt (in relation to paragraph 249) that we accepted that evidence and we record that it was, as the claimants pointed out, supported by Ms Humphreys’ evidence given in cross-examination on day 18, at pages 43-44. There, Ms Humphreys acknowledged that she had set “the team” an “availability target” of “no more than 2% of the sizes of stock missing on the shop floor which were being stored in the backstock in the warehouse”. Returned stock

[206]Returned stock (i.e. stock which was returned to the respondent by customers to the store) and how to deal with it was described at pages 18-20 of C7/619, but it is possible that the text which was cut off at the top of C7/619/21 was relevant also. Case Numbers: 3304495/2018 & others 237

[207]The first sentence of paragraph 468 as it stood at the time of closing submissions was descriptive of the background, but it was helpful background. The second sentence was also helpful background if it was read as a statement that it was part of the JH’s work to process “the pile of returns for re-display”. We accordingly accepted the claimants’ proposed words for paragraph 468.

[208]The first part of paragraph 469 was (as we understood the situation; the claimants’ closing submissions showed that they were of the same understanding) disputed by the respondent on the basis of what Ms Humphreys said in paragraphs 125 and 129 of her first witness statement, which was, so far as relevant, respectively,208.1 that the JH ‘was not required to “assess” or check each item against “high quality standards” as is suggested at paragraph 469 of the EVJD’, and

208.2 that the JH did not ‘“carefully assess each item and packaging”, as is alleged at paragraph 474’.

[209]However, what was said on page 19 of C7/619 was evidently correct and contradicted those paragraphs. At that page, this was said. ‘Why are returns important? We want to keep returned items in a good condition so that they will appeal to other customers. Try to ask yourself “Would I buy or wear it?”.’

[210]And in any event, as we say in paragraph 160 above, the JH was required to apply the WIBI test at every stage of her work, which was surely all that needed to be determined in regard to paragraph 469 (and paragraph 474, which was disputed on the same basis) and we therefore made that determination. (For the avoidance of doubt, the word proposed by the claimants for the frequency with which the work referred to in paragraph 469 needed to be done was correct, even on the respondent’s case: the claimants proposed that the work be recorded as being done “regularly”, and the respondent accepted that it was done “around once every two Sundays”, which was within the definition of “Regularly” at H31.)

[211]We turn now to the related dispute in regard to paragraph 475. That paragraph was to the effect that if the JH applied the WIBI test to an item of stock and decided that she would not buy it, then she should do the thing which is stated at for example C7/823/47, which we have set out in paragraph 161 above. At C7/143/5, it was said that if the answer to the question “Would I Buy It? ... is ‘no’, the product should be removed from the shelf”. The content of paragraph 475 was therefore entirely apt. The JH said (in the appendix to her first witness statement, at E1/4/98) that the event occurred about once every shift, and we saw no reason to doubt that, so we concluded that the appropriate word to describe the frequency with which the event Case Numbers: 3304495/2018 & others 238 occurred was “frequently”. The content of paragraph 476 as proposed by the claimants was dependent on the content of the paragraphs which preceded it, and appeared to us to be uncontroversial, given our decision about the aptness of paragraph 475. The words proposed by the respondent were dependent on its position which was in substance that the JH was not required to apply the WIBI test, and we therefore rejected them. The words proposed by the claimants for paragraph 476 were therefore accepted by us.

[212]The parties disputed the words to be used to describe the frequency with which the work described in paragraph 470 (processing returned items and putting them onto a running rail) was done by the JH alone on Sundays. The JH said that she did it usually with a night-shift colleague who retired in 2014 and after then on her own. That evidence was unequivocal, and was in paragraph 26 of the JH’s first witness statement. The respondent asserted in its closing submissions that throughout the relevant period, the JH “more often than not” did the work with a colleague. The respondent’s position on that depended on the evidence of Ms Humphreys, but since she started working at the store only in June 2014, she will have had no direct evidence to give on the issue if the night shift colleague who retired in 2014 left before June of that year. Ms Humphreys said nothing about the date when the colleague in question retired. It was, however, Ms Humphreys’ clear evidence (in paragraph 127 of her first witness statement) that throughout the relevant period (presumably to the extent that Ms Humphreys was able to give direct evidence about it), the JH “mostly” worked with a colleague in processing the returns. That was because (it was clear from the passage of the cross-examination of her on this, which was at pages 102-103 of the transcript for day 18) “normally the fitting room rails were cleared by 7 or 8 o’clock”, so that she had assumed that the JH did the work “mostly” with a colleague. However, the JH started her Sunday shifts at (see paragraph 10 above) 3.30pm. In those circumstances, we accepted the JH’s evidence, which was unequivocal, on the issue of frequency, so that we concluded that she spent 30-45 minutes every Sunday shift after 2014 processing returns. Applying H31, that was done “regularly”.

[213]There was a dispute also about the frequency with which the JH did the work referred to in paragraph 471. The work was not just going to the F&F service desk “on Thursday shifts at around 9.45pm”, it was going there to “pick up items of F&F clothing which ha[d] been returned” and processing them as described in paragraphs 469 and 470. The respondent in response to the proposition that it happened “Regularly” asserted that it happened “a maximum of once per month”. In doing so, the respondent relied on a paragraph of Ms Humphreys’ first witness statement (paragraph 369) which, we could see, related to a different issue, which was about how often the JH “responded to a call to the main customer service desk” to deal with a general F&F query. The claimants identified the actual basis of the respondent’s opposition to the content of paragraph 471, which was paragraphs 130 and 131 of Ms Humphreys’ first witness statement. In any event, the respondent submitted in its closing submissions in relation to paragraph 471 that “JH confirmed in [XX] that she was unable to provide an estimated frequency [Day 17, p.55, line Case Numbers: 3304495/2018 & others 239 24]”. However, the whole of the relevant passage including line 24 was in these terms. “Q. It’s also agreed that sometimes you might do returns on a Thursday but that would only be if there was a specific tannoy call; is that right? A. That’s correct, yes. Q. Would you accept that that was fewer than half of your Thursday shifts overall that that would happen? A. No. Q. What would you estimate was the frequency? A. I can’t really give a -- I can’t really -- I can’t really say.”

[214]So, in its submissions in relation to paragraph 471, the respondent misrepresented what the JH had said in cross-examination. She implicitly said that the thing in question happened on more than half of her Thursday shifts, but she could not be more precise than that. So, she could and did give an estimate of the frequency, but realistically accepted that she could not say any more than that the thing occurred on at least half her Thursday shifts. In those circumstances, we accepted the claimants’ case in regard to paragraph 471. The frequency with which the thing in question occurred was “regularly”. Waste

[215]While there was no dispute about the JH’s role in regard to dealing with waste and recycling, we mention it here so that it can be seen how that work fitted into the framework which we have described above on the basis of the training materials in the bundle before us.

[216]Pages 8-12 of C7/619 dealt with waste and recycling of stock, and in the course of doing so touched also on clearance of stock (which is why we refer to most of those pages at the start of paragraph 160 above as well as here). Pages 40-41 of C4/19 also referred to, and prescribed how to deal with, stock which was “wasted” on the basis that it was “unfit for re-sale to the customers”. Thus, those pages of C4/19 were relevant also to what was done by way of the wasting of stock.

[217]What the JH had to do by way of sorting out packaging waste and the recycling of packaging was in general terms the same as any other customer assistant, which was as shown by for example pages 4-6 of C7/262. That was recognised by what was said at C7/619/8 (and repeated at the top of the following four pages) about waste, which was this. Case Numbers: 3304495/2018 & others 240 “Your role is key to reducing unnecessary waste and ensuring we recycle as much as possible. You’ll come across waste and recycling in your daily routines. This starts with pre-sorting in the warehouse where all cardboard and plastic is removed from items before they are moved onto the shop floor.” The JH’s work replenishing groceries

[218]Rarely, the JH assisted with replenishing groceries. The EVJD for the JH dealt with this in inordinate detail, given that rarity (it was stated in paragraph 311 as agreed by the time of closing submissions to occur once or twice a year). That inordinate detail may well have resulted from the fact that it was initially said in paragraph 311 that she did that “[o]nce every one or two months”. In any event, given the rarity of the occasions when the JH assisted with replenishing groceries, it is not proportionate to do more than say the following things about that replenishment.

[219]The dispute in regard to paragraph 315 about whether or not the JH was required to make “the aisle look presentable” and the related dispute about paragraph 328 was surprising since the respondent cannot have wanted the JH to just put stock out on display without caring how it looked. It was in our judgment her job, i.e. her work for the purposes of section 65(6) of the EqA 2010, to ensure that the things that she put out in an aisle did not make the aisle less presentable than it already was, and the overriding obligation of a replenisher of groceries was, we concluded, as stated at C7/656/2, which was to “[make] sure products are always displayed attractively and are as good as you would want if you were a customer”.

[220]The requirement to check the shelf-edge label when doing that was of course the same as that of any other replenisher. Accordingly, our finding in that regard in paragraph 83.1 of Appendix 1 (at pages 52-53 above) applies here also, so that the dispute in regard to paragraph 326 is resolved accordingly.

[221]The dispute maintained in relation to paragraph 329 concerned the respondent’s WIBI policy. We resolve that dispute in paragraph 160 above. At the risk of repetition and stating the obvious, it applied to the JH’s work of replenishment of groceries, even if a member of the grocery department team subsequently also carried out a WIBI check. Interactions with customers

[222]The parties’ disputes about the section of the EVJD concerning customer service, namely as maintained in relation to paragraphs 332-339 and 342-346, fell to be seen in the light of our conclusions stated in paragraphs 17 and 18 above. At the risk of repetition, what the JH knew she was required to do (as for example was asserted in paragraph 342) was irrelevant. What was relevant was what she was required to do. That is as shown primarily by the documents referred to in paragraphs 16 and 17 Case Numbers: 3304495/2018 & others 241 above and what we say above in paragraphs 179-181 above in regard to fitting rooms.

[223]We record here by way of illustration of the extent to which the respondent had ignored for the purposes of this case the contents of its own documents (which we concluded for the reasons stated in paragraphs 75-85 of our judgment of 12 July 2023 were relevant) that Ms Humphreys said this in paragraph 355 of her witness statement. “Janice was expected to respond to customer queries as best she could, but not to actively approach customers.”

[224]That was directly contrary to the first and the fourth principles on page C7/145/4: they were to be “First To Greet” and “First To Help”, i.e. respectively:224.1 “I acknowledge customers, say hello and ask how their day is going. I should always say hello to customers before they greet me.”

224.2 “I should always identify where customers need help, even if they have not asked for it yet.”

[225]The frequency with which the JH was required to interact with customers was, however, not dealt with by the respondent’s training materials and was something which the IEs might need to take into account. However, even that was doubtful if the JH was at least occasionally approached by customers. That was because in those circumstances the JH had to be alert to the possibility of being approached, and the need for that alertness will have been constant when the store was open to the public. We saw that there was a dispute maintained in relation to paragraph 337 about the number of customers who tended to approach the JH during her Monday shifts: was it, as the JH said, ten, or was it, as Ms Humphreys estimated, four? Neither the JH nor Ms Humphreys was likely to have counted the number of customers who actually approached the JH during her day-time working hours. That meant that they would have had to guess the number, and in the circumstances, so would we. In addition, it was entirely possible that the IEs would attribute the same value to dealing with an average of four customers as to dealing with an average of ten customers. In those circumstances, we declined to make a decision on the point, concluding that if the IEs needed one, then they should tell us, and we would then arrive at a firm conclusion.

[226]There was a the dispute about the number of particularly busy nights for the F&F department when customers went to the store “to make last minute purchases”, maintained in relation to paragraph 338. The claimants said that they occurred “occasionally”, and the respondent acknowledged the existence of only one per year (“the shift prior to Christmas Jumper Day”). Applying our own experience and some common sense, we thought that the number would have been more than one per Case Numbers: 3304495/2018 & others 242 year, and that it will have been somewhere between (applying H31) “rarely” and “occasionally”.

[227]The issue of the possibility of a customer complaint which was raised in regard to paragraphs 372 and 519(c) was resolved by us in the same way as in paragraph 210 of Appendix 1 in relation to paragraph 680 of the EVJD for Mrs Worthington (see pages 81-82 above). Our conclusion on this issue was that the JH, and all other customer assistants employed by the respondent, worked in the knowledge that a customer might make a complaint to the respondent about them. That was not the same as being monitored, but it was a material factor.

[228]Similarly, the issue of the possibility of a mystery shopper (as raised in paragraph 519(c)) was determined by us in the same way as in the first sentence of the indented passage at the end of paragraph 13 of Appendix 1 (at page 35 above), which was this. “The JH’s performance in regard to customer service was monitored by(1) the JH’s managers and

(2) until 2013 by the mystery shopper regime as shown by C7/184 and C7/785.” Cleaning and fire safety responsibilities

[229]The disputed content of paragraphs 483-490 and 492 related to cleaning. Paragraphs 505-506 related to fire safety. The JH’s responsibilities in those respects, including to clean as she went (in accordance with the respondent’s “Clean As You Go” policy), were the same as those of any other customer assistant or worker in the respondent’s stores. We state those responsibilities in paragraph 268 of Appendix 2 (at page 149 above), and for the sake of convenience now repeat it. The JH had responsibility, as did all other members of the respondent’s shop floor staff, for seeking to ensure that all parts of the store were safe for all persons on the premises, through the JH having an individual as well as a shared responsibility for keeping those parts reasonably clean and reasonably free from the risk of slips and trips. The manner in which the JH was required to comply with that responsibility was shown by pages 13-15 and 27 of C7/142.

[230]Therefore, the respondent’s proposed words for paragraph 483 were inaccurate and we rejected them. The disputed words in paragraph 492 about the frequency with which the JH in practice used some blue roll to mop up a spillage were these: “around three times per year”. That was, applying H31, occasionally, and both parties agreed on the use of that word. We accepted it and therefore concluded that the respondents proposed additional words “around three times a year” were superfluous.

[231]If and to the extent that the content of paragraphs 484 and 485 added anything to the content of pages 13-15 and 27 of C7/142 and C7/143 (and we doubted that it Case Numbers: 3304495/2018 & others 243 did), we accepted that the additional material was, we concluded, accurate as a matter of fact. That was despite the submission of the respondent that the content of paragraph 485 (“JH is required to maintain, by cleaning, Recovering and clearing the department, proper standards of cleanliness, as customers will not shop in and buy clothing from a dirty department. Tesco knows from its own research that shopping in a clean and tidy store is one of the most important positive factors for a customer”) was “aggrandising duplication”. The significance, if any, of what was said in paragraphs 484 and 485 in relation to the work of the JH for the purposes of section 65(6) of the EqA 2010 is a matter for the IEs.

[232]Paragraph 486 (“JH knows the cleaning equipment used in the F&F department is kept in a trolley in the fitting rooms”) was irrelevant. What was relevant was what the respondent required of the JH in regard to the cleanliness of the F&F department and we have stated our findings in that regard in the preceding three paragraphs above. For the avoidance of doubt, we concluded that the fact that the F&F department’s cleaning equipment was stored in a particular place in the department was irrelevant, as, we concluded, the value of the work done by a customer assistant such as the JH (i.e. an F&F customer assistant) for the purposes of section 65(6) of the EqA 2010 could not vary from store to store according to the location of the F&F department’s cleaning materials.

[233]On the other hand, the content of paragraph 487 was about more than just the Clean As You Go policy, and Ms Humphreys acknowledged in cross-examination on day 18, as recorded at line 7 of page 191, that if the fitting room needed to be cleaned and the JH did it then that was “an additional job task”. Partly because of that acceptance, but also because it was in our view obviously an aspect of the role of an F&F customer assistant to do the things referred to in paragraph 487 in the circumstances stated in that paragraph as proposed by the claimants, we concluded that those things were part of the JH’s work for the purposes of section 65(6) of the EqA 2010. We also concluded that the things needed to be done regularly. That was for the following reasons.233.1 The JH said in paragraph 176 of her first witness statement that the event in question occurred “approximately once a month”.

233.2 Ms Humphreys’ evidence on this did not include any reference to the frequency of the event. In her witness statement evidence, she simply said (in paragraph 443 of her first witness statement) that the JH “was neither required nor expected to clean the fitting room before tidying the shop floor on her Sunday shift, or before processing the delivery or tidying the shop floor on her Thursday shift”. When the frequency of “about once a month” was put to Ms Humphreys as recorded at lines 19-22 of page 190 of the transcript for day 18, she merely denied that the event happened.

233.3 In those circumstances, we accepted the JH’s evidence that the event occurred about once a month, which, applying H31, was “regularly”. Case Numbers: 3304495/2018 & others 244

[234]As for the parts of paragraph 489 as it stood by the time of closing submissions which were in dispute, we thought that the respondent’s words were better than those proposed by the claimants with the exception that the claimants’ proposed word for the frequency with which the JH tended to clean the mannequins (“regularly”) was better than the words proposed in that regard by the respondent (“around once a month”). So, for the avoidance of doubt, in determining the disputes relating to paragraph 489 we found that the JH regularly(1) saw dust on one or more of the mannequins in the F&F department,

(2) retrieved a cloth and surface cleaner from (in this case) the trolley in the fitting rooms, and

(3) cleaned up the mannequin(s).

[235]As for paragraph 490 as it stood by the time of closing submissions, it was in our view plainly the job of any customer assistant in the F&F department to keep the F&F service desk clean and tidy so that if it appeared to be in need of tidying or a quick clean, then the customer assistant would be required as part of his or her job to tidy and/or clean it. It was the JH’s evidence (in the appendix to her second witness statement) that she did that at least a couple of times a month, and although Ms Humphreys said in paragraph 443 of her first witness statement that if the JH did that then it was without the knowledge of Ms Humphreys, we concluded that it was obviously part of the JH’s work. Thus, we accepted the words of paragraph 490 as proposed by the claimants by the time of closing submissions. Health and hygiene

[236]Paragraph 495 (“If JH has a cut or sore, JH covers it with a blue plaster obtained from the first aid box.”) was, according to the claimants’ closing submissions, opposed by the respondent. The respondent, however, made no written closing submissions in relation to that paragraph, which suggested that it was no longer opposed. In case it was still opposed, we record here our conclusions on the factual issues arising from the paragraph.

[237]We agreed with what Ms Humphreys said in paragraph 453 of her first witness statement, which was that as the JH “never handled food, there was no specific requirement for her to cover any cut or sore with a blue plaster obtained from the first aid box”. The only requirement to cover any cut or sore that we could see in the training materials was stated in relation to food hygiene. Having said that, we could see that the respondent would not want its clothing to be soiled by seepage from a cut or a sore, and in paragraph 452 of her first witness statement, Ms Humphreys accepted that the JH was required to “maintain a proper standard of personal care and hygiene”, so we concluded that it was indeed part of the JH’s work to do what paragraph 495 described. Whether that was something that was obvious, or not material to the evaluation by the IEs of the JH’s work, was a different matter. We left it to the IEs to decide whether it was material to their evaluations. Standards of dress Case Numbers: 3304495/2018 & others 245

[238]Ms Humphreys also accepted in paragraph 452 of her first witness statement that the JH was required to “[attend] work in a clean uniform”. Ms Humphreys then referred in that paragraph to C7/777, entitled “Management Guidelines to Standards of Dress” for “Stores only”, and said that she had not seen it, it predated the start of her time as an employee of the respondent (it was dated “October 2013”), and as far as she was aware, the JH had not seen it. The latter factor was, for the reasons which we state in paragraphs 75-85 of our judgment of 12 July 2023, irrelevant. The content of C7/777 seemed to us to be of considerable relevance. In fact, there was another document before us which was relevant to this issue of personal appearance when at work. It was C7/863 where, at pages 74-75 there was specific guidance which stated in effect the requirements imposed on the JH in regard to dress and related issues. It was therefore in our judgment to be read as stating the substance of the obligation mentioned in paragraph 497. The latter was not in appropriate terms. The obligation of the JH in regard to personal appearance was therefore in our view best stated as an obligation to comply with the standards imposed by the respondent’s staff handbook, and on the evidence before us those standards were best evidenced by what was on pages 74-75 of C7/863, expanded if necessary by reference to the content of C7/777. Assisting new starters and agency staff

[239]The JH said (in paragraph 206 of her first witness statement) that she gave advice and guidance to new starters in the F&F department. The respondent argued that the facts stated in paragraphs 514 and 515 were irrelevant. Those paragraphs had to be read as being to the effect that the JH’s work for the purposes of section 65(6) of the EqA 2010 included guiding a new member of staff through the majority of the tasks which the new member of staff was asked to carry out, and answering any questions which the new member of staff might have.

[240]The resistance of the respondent to the contents of paragraphs 514 and 515 was based on the following paragraph (number 471) of Ms Humphreys’ first witness statement. “Janice was neither required nor expected to train colleagues, contrary to paragraph 514 of the EVJD. If she did this, I was not aware of it. I always provided new colleagues, or colleagues moving from the Day to the Night shift, with all the training and guidance necessary to carry out their duties without the assistance of Janice or any other F&F colleague.”

[241]However, we understood from what was recorded on page 73 of the transcript for day 18 that Ms Humphreys accepted in cross-examination that if the JH helped new starters then that would have been done as part of her work for the purposes of section 65(6) of the EqA 2010. In any event, we were not persuaded by what Ms Humphreys said in paragraph 471 of her first witness statement that the JH’s work for those purposes did not include the giving of guidance to colleagues who were new to the F&F department, including by answering any relevant questions that they might Case Numbers: 3304495/2018 & others 246 have, and we found as a fact that it did include those things. We did so not only because Ms Humphreys in effect accepted that that was correct, but also because we thought that a refusal by the JH to do those things would probably have been a repudiation of her contract of employment, as the refusal would have breached the implied term of trust and confidence. In addition, and in any event, it was in our judgment obvious that the role of the JH included helping new starters in the F&F department by giving them guidance and advice.

[242]Similarly, we concluded that it was the JH’s role (i.e. it was part of her work for the purposes of section 65(6) of the EqA 2010) to do those things for agency staff who were new to the F&F department. Those staff worked in the department only in what the parties referred to as “busy periods such as Christmas and Back to School”. It was notable that in this regard too, Ms Humphreys accepted (at pages 73-74 of the transcript for day 18) that if the JH saw the agency staff “floundering or confused” and she approached them and asked them if she could help them, then that would have been the JH doing her job. The substance of paragraphs 516 and 517 as they stood at the time of closing submissions was resisted by the respondent only on the basis that it was not the job of the JH to do the things referred to in those paragraphs. We concluded for the same reasons as we state in the preceding paragraph above in relation to new employees, that that resistance was not wellfounded and that the content of those paragraphs was relevant and well-founded.

[243]Similarly, Ms Humphreys resisted the proposition that the JH might, as part of her job, give agency staff additional tasks if they finished the tasks on the list which they had been given before the end of their shift. That was on the basis of what Ms Humphreys said in paragraph 474 of her witness statement, which was this. “It is also not the case that Janice was required, expected, or otherwise had the authority to provide agency workers with additional tasks if and when they finished early.”

[244]However, this particular point was not put in cross-examination to Ms Humphreys. The issue was put to the JH when she was cross-examined (as recorded at pages 174-175 of the transcript for day 17), and she in effect confirmed her witness statement evidence (in paragraph 205 of her first witness statement) that she would, if they said that they had finished their tasks and asked if there was anything else they could do to help, “get them onto something else that they could help with”. In fact, though, the JH then went a bit further, by saying this: “I would be keeping an eye open and also if they asked me, then I would help them.”

[245]We rather doubted that it was outside the scope of the JH’s work for the purposes of section 65(6) of the EqA 2010 to do either or both of those things. We also doubted that it would be consistent with the requirement to act in accordance with the implied term of trust and confidence to fail to do those things. Having considered the matter carefully, we came to the firm conclusion that it was in fact part of the JH’s work for Case Numbers: 3304495/2018 & others 247 the purposes of section 65(6) of the EqA 2010 to do those things. Accordingly, we accepted that it was the JH’s work to do that which was stated in paragraph 518. Case Numbers: 3304495/2018 & others 248 Appendix 5 Rebecca Thompson THE TRIBUNAL’S DETERMINATIONS OF THE PARTIES’ DISPUTES(1) IN RELATION TO THE WORK WHICH MS REBECCA THOMPSON (TO WHOM WE REFER BELOW IN THIS APPENDIX AS “THE JH”) WAS EMPLOYED BY THE RESPONDENT TO DO, AND

(2) IN RELATION TO THE OTHER FACTUAL MATTERS WHICH ARE RELEVANT TO THE ISSUE OF WHAT WAS THE VALUE OF THAT WORK FOR THE PURPOSES OF SECTION 65(6) OF THE EQA 2010, AND THE (MAINLY JH-SPECIFIC) REASONS FOR THOSE DETERMINATIONS. Introduction 1 This document is a continuation of the set of documents in which we set out our conclusions on the legal and factual issues which were before us at the end of the stage 2 hearing which took place in the first half of 2023. Thus, with one exception, we do not repeat here for example (1) definitions for the abbreviations used, (2) the background to those conclusions, or

(3) the schematic at H31 used by the IEs stating what words they would prefer for describing frequency and related things. The exception is that we repeat here, for the avoidance of doubt, that unless otherwise indicated below, a reference in bold font to a paragraph number is to a paragraph of the EVJD for the JH as it stood before the stage 2 hearing. This document is the fourth in the series determining the factual disputes relating to a lead claimant. The place where the JH worked, her job title and her working hours 2 The JH worked for the respondent in the main replenishing non-food goods on the shop floor at the respondent’s Haydock Church Road Superstore (to which we refer to in this Appendix 5 as “Haydock” or, as the case may be, “the store”) throughout the relevant period for the JH, which was 13 October 2017 to 31 August 2018. The parties called that period “the evaluation period” to distinguish it from the period determined by Employment Judge Manley as the overall period for the comparison of the work of the claimants and the comparators (which was from 18 February 2012 to 31 August 2018). We do the same thing in this Appendix 5, i.e. we refer to the period to which this Appendix relates as “the evaluation period”. The JH’s job title was “Customer Assistant – Replenishment”. 3 The JH worked on two days a week, on both days from 4.45pm to 10pm. Those days were Thursdays and Fridays. During each of those shifts the JH had a 15-minute unpaid break. Some relevant facts relating to the work which the JH did (1) The times when customers were present on the shop floor when the JH was working Case Numbers: 3304495/2018 & others 249 4 The store was open to customers during the whole of the JH’s shifts. (2) The main implications of the presence of customers 5 The presence of customers on the shop floor, or their possible presence because the store was open for custom, meant the following things as far as the work of the JH was concerned.

5.1 The JH was required to be vigilant to the risk of theft (see the third bullet point in the middle column of C7/135/5).

5.2 The JH was otherwise required to be aware of and take the steps referred to on pages 1-6 of that document.

5.3 The JH was required to apply the principles relating to good customer service stated for example at pages 2-17 of C7/145.

5.4 The JH was required to “[r]emember [to put] customers ... first when tidying or putting out stock”. That was stated specifically at C7/616/12 as a “Top Tip!”. It was plainly applicable to all customer assistants. (3) The risks to the JH and others in the working environment, and the steps which she was required to take to mitigate those risks 6 The JH was required to be aware of and apply the guidance and requirements stated at pages 3-23 and 25-33 of C7/142 and pages 7-25, 27-36 and 53-60 of C7/823. 7 The fact that there were risks to the JH from being present on the shop floor is shown by C7/705, which included guidance of which the JH was required to be aware. We acknowledge that the JH worked at the end of the store’s opening hours, and that during the evenings the store was likely to have been less busy than at peak periods.

(4) Clocking in, the existence of CCTV, and the possibility of being searched 8 The JH was required to clock in. CCTV was, as the respondent accepted in responding to paragraph 8, present throughout the shop floor and the warehouse, and as shown by C7/784, at the latest by April 2018 customer assistants in all of the respondent’s stores knew that their actions might be monitored via that CCTV in the circumstances described in that document.

(5) The physical environment in which the JH worked 9 The environment in which the JH worked was the store’s warehouse and its shop floor. The work which the JH was employed to do Case Numbers: 3304495/2018 & others 250 Introduction; an overview of the JH’s work and some factors which were relevant to our determinations of that work 10 The parties agreed that the JH’s main task was “non-food replenishment”, but as far as we could see, the respondent’s training materials to which we refer further below referred to the things that the JH replenished as the main part of her work for the respondent as “hardlines” rather than “non-food” goods. 11 There was a disagreement about the precise percentage of the JH’s work which consisted of tasks related to replenishment, but as the respondent pointed out in closing submissions, Ms Parkin, the JH’s line manager, was cross-examined on day 7 (as recorded on page 20 of the transcript for that day) on the basis that the claimants’ position was that replenishment-related tasks (including the 20% of the JH’s time spent on “Rumble”; Ms Parkin accepted, as recorded at lines 22-23 of page 17 of that transcript, that Rumble was part of non-food replenishment) took up 90% of the JH’s time. In fact, we counted up the things referred to in the claimants’ closing submissions about the content of paragraph 19 as it stood by the time of closing submissions as “Working Backstock” (58%), “Working Delivery Cages” (8.5%), “Rumble” (20%), and “Waste and Reductions” (2.5%), and arrived at the figure of 89%. If one added the claimed 5% for replenishment tasks done in relation to health and beauty products, then the figure came to 94%. The other 6% of the JH’s time was claimed to have been spent working on the “Combined Desk”, the “Mainbank Checkouts” and the “Petrol Station”. The respondent’s case was that 93% of the JH’s work consisted of what we will call hardlines replenishment. We doubted the reliability of the precise percentages of the JH’s work on which both parties relied, and we found in any event that they had not applied the IEs’ schematic at H31, which would have involved the parties focusing on the tasks done by the JH, and the frequency with which those tasks were done, accepting that estimates of such frequency were necessarily somewhat impressionistic. In fact, the parties accepted (it was clear from what they said in closing submissions in relation to paragraph 18) that the percentages which they gave were “indicative” only. Indeed, the extent to which the parties had disagreed on the details of the JH’s work needed to be seen in the light of the fact that in paragraph 18 of the respondent’s opening section of its closing submissions in regard to the work of the JH, which was the first paragraph under the heading “Breakdown of JH’s role”, this was said. “The parties appear to have agreed that JH spent at least 90% of her time, effectively nearly all of her time, replenishing shelves. This is relevant for two

[246]In contrast, however, we accepted that the final sentence of paragraph 6.93 of the EVJD for Mr Jones was an accurate statement, even if it was to an extent obvious. Factually, we had no doubt that it was correct. Mr Jones and any other assembler will indeed have had to adopt an awkward body position when a pallet was nearly empty. Paragraphs 6.95-6.127 of the EVJD for Mr Jones; the stacking of cages

[247]We thought that the work of stacking in an ambient DC was definitively stated in the documents to which we refer in paragraphs 58-66 above. To the extent that what was in paragraphs 6.95-6.127 of the EVJD for Mr Jones differed from what was said in those documents, what was said in those documents had to prevail.

[248]In addition we found the content of paragraphs 6.95-6.127 of that EVJD to be in some cases vague and in other cases an over-complication of what the work was.

[249]By way of example, in paragraph 6.111 it was said that Mr Jones “worked out in his head, what products were likely to have to be stacked in the Cages later in the Case Numbers: 3304495/2018 & others 451 Assignment, and at what point in the Assignment he would reach those products”. That was directly contrary to the words that we have set out in paragraphs 58 and 60 above. Paragraph 6.111 therefore asserted that the work of assembly involved forward thinking when there was no room, let alone a requirement for, such thinking.

[250]Nevertheless, while what was said in paragraph 6.122 of the EVJD for Mr Jones was directly contrary to what was said as set out in paragraphs 58 and 60 above, it was not contrary to the principles stated at D9/224/4-8. However, we thought that the latter pages were a better description of what was involved in stacking a cage.

[251]For the avoidance of doubt, what was said in paragraph 6.123 of the EVJD for Mr Jones (“The stacking of multiple different Unit types into individual Cages was more difficult when assembling into Slim Line Cages, given that these Cages were narrower. This meant that the practical difficulties of having to stack Units of different shapes, sizes and weights were exacerbated.”) was directly contrary to the passages that we have set out in paragraphs 58 and 60 above. The latter in our judgment were rather more reliable than the oral evidence of Mr Evans (in paragraph 442 of his witness statement) and Mr Matthews (in paragraph 103 of his witness statement), neither of whom referred to the documents referred to in paragraphs 58 and 60 above. Paragraph 6.132 of the EVJD for Mr Jones; planning the stacking

[252]Paragraph 6.132 of the EVJD for Mr Jones was in these terms. “Using his experience and in-depth knowledge of where individual Products were usually located in the warehouse, the job holder was able to visualise the shape and size of Units at that Aisle location and so consider and plan for the potential impact on the stacking of the Cage of the larger number of Units to be Assembled.”

[253]Not only was that imprecise, it was contrary to what was said in D9/224/4-8. The latter prevailed, therefore. Paragraph 6.136 of the EVJD for Mr Jones; more on planning the stacking

[254]The content of paragraph 6.136 of the EVJD for Mr Jones was under the heading ‘Assembling multiple Units at a single location (“Multi-Select Locations”)’. In fact, the term “multi-select locations” was not in the training materials before us. As far as we could see, the situation was covered by the document at D9/232 to which we refer in paragraph 17.19 above. Even though that document applied to “Fresh Assembly” rather than assembly in an ambient DC, we thought that what it said could not be ignored on the basis that it was stated to apply to a fresh DC and Mr Jones worked in an ambient DC. Indeed, we thought that the respondent probably had produced a document to the same effect in relation to assembling in an ambient DC. If it had not done that, then (see paragraphs 256-258 below) the respondent had accepted that Case Numbers: 3304495/2018 & others 452 what Mr Jones did as described in paragraph 6.136 (and therefore also paragraph 6.137) of the EVJD for him was not what he had been taught to do when putting more than six units into a UOD. At page 4 of D9/232, this was said. “Key Point! Highlight that it is very important that each set of 6 cases is picked in their individual sets of 6. These sets of 6 help to prevent mistakes because if you count in sets of 6, you will be less likely to lose track of how many you have assembled. Do not attempt to press ‘Enter’ after each set of 6, before assembling them, because you may have to close and open another unit of delivery midway through the pick.”

[255]Unfortunately, while paragraph 6.136 of the EVJD for Mr Jones referred to “page 29 of the AMC Guide”, we could see nothing which was relevant to the issue raised by that paragraph in the extract from the AMC guide at D7.2, which was the place where the respondent had put the extracts relied on in support of the assertions made by the respondent in the EVJD for Mr Jones. When, on 2 May 2024, we were sent the Pick by Store AMC User Guide, we found nothing in any part of that document which related to the text of paragraph 6.136 of the EVJD for Mr Jones.

[256]The respondent’s submissions on this part of the EVJD were in the following terms. “1. Mr Matthews and Mr Evans both confirm that the JH adopted the technique of repeatedly confirming the message ‘more than 5’ to identify the total number of Units to be collected before starting to collect them. This was a different technique than that taught, which involved collecting and assembling the first 5, then confirming, and repeating until the full number of units was collected and assembled. This technique yielded both gains in speed and also better efficiency in stacking. This was not the result of doing the same work better; it was the result of a materially different way of working. The fact that it was done in service of the same ultimate objective does not change the fact that the content of the work, and the demands arising from working in this way, were different. 2. See the submissions on the relevance of the AMC Guide at 5.5(b).”

[257]The cross-reference to “5.5(b)” did not assist us. The submissions made there were to the effect that the respondent’s guide to the use of an AMC was relevant. For the reasons stated in paragraphs 16 and 77 of our second reserved judgment (at pages 7-8 and 27-28 respectively above), we agreed with that proposition. The problem here was that we could not see anything that related to assembling in sets of six (or five, for that matter), either in the extracts from the “AMC Guide” included in an Case Numbers: 3304495/2018 & others 453 appendix to an EVJD, or the Pick by Store AMC User Guide when we were sent it on 2 May 2024.

[258]Thus, the respondent was saying that Mr Jones did something that was “a different technique than that taught”, but did not say whether or not that different technique was approved by the respondent. In fact, that different technique was contrary to the way in which the respondent required at least its fresh DC assemblers to put more than six units into a UOD. In those circumstances, we concluded that what was described in paragraph 6.136 of Mr Jones’ EVJD was not part of his work for the purposes of section 65(6) of the EqA 2010, although it might be at least a partial basis for a material factor defence for a difference in any bonus paid to him. Paragraphs 6.140 and 6.165 of the EVJD for Mr Jones; the requirement to count stock accurately

[259]As it must be apparent from what we say in paragraphs 167 and 168 above, we accepted that it was a requirement of the respondent that its assemblers counted stock accurately. Paragraph 6.146 of the EVJD for Mr Jones; “breakpack” locations

[260]The term “breakpack location” did not appear in the training materials before us. There was only one reference to breaking a pack, and that was in D9/633, which was about measuring and weighing fresh and packaged products, so it was not relevant. The respondent relied here on its submissions in relation to paragraph 6.469 of Mr Hornak’s EVJD. Those relied on the evidence of Mr Pilley, Mr Evans and Mr Matthews, in paragraphs 184, 254 and 121-123 of their respective witness statements. Mr Pilley there referred simply to the evidence of Mr Matthews. Mr Evans did the same. Mr Matthews’ evidence related to Mr Jones’ work. We could not understand why the respondent’s submissions here did not simply refer to Mr Matthews’ evidence. However, all he did in paragraphs 121-123 of his witness statement was in substance say the same as was in paragraph 6.146 of the EVJD for Mr Jones.

[261]The only material thing that was relevant here was that Mr Jones and any other assembler who was required by his AMC to pick stock from what the respondent in practice called a “breakpack location” had to (as Mr Matthews put it in paragraph 122 of his witness statement) “open and assemble from the Breakdown pack”. The term “Breakdown pack” helped us to locate a document in the bundle in which reference was made to the situation. That was the policy and procedure document concerning “paperless assembly in stocked”, of which there were three versions in the bundle (at D9/151, D9/560 and D9/620), to which we refer in paragraph 17.3 above. There, at row numbered 37 of the procedure part of the document, this was said. ‘Check whether the case to be picked is a standard case or a breakdown pack Note: Breakdown packs will have “BD” printed on the outer case’. Case Numbers: 3304495/2018 & others 454

[262]In row 38, this was said. “Scan the barcode of the product you require in the select [sic] to identify it is the correct product Standard Cases• Scan the barcode Breakdown Packs

• Open the outer carton with a company safety knife and select an individual unit

• Scan the unit barcode after removing from the outer case Note: If you scan the breakdown pack you will get an error message and be prompted to scan the individual unit”

[263]Thus, the only additional thing required to be done when the unit was to be taken from a breakdown pack was open the outer carton with a company safety knife. We doubted that the word “select” in the sequence “select an individual unit” meant more than just “take”. Paragraph 6.154 of the EVJD for Mr Jones; the possible impact of the size and weight of seasonal items

[264]The assertion in paragraph 6.154 of the EVJD for Mr Jones to which the claimants objected was that seasonal stock items “were awkward to lift and carry and, subject to the content could weigh up to 25kg”. Plainly, the word “were” was too universal. “Might be” was, on the factual assertions in paragraphs 6.150-6.153, which were agreed, more appropriate. We leave it to the IEs to decide whether or not the possibility of the need to carry something which it might be awkward to lift and might weigh 25kg added anything material to the demands of Mr Jones’ work. Paragraph 6.157 of the EVJD for Mr Jones; the number of assignments per shift that Mr Jones undertook

[265]The number of assignments which Mr Jones undertook every shift was in our judgment irrelevant to the question of the demands of his work for the purposes of section 65(6) of the EqA 2010. It might be relevant to an MFD defence within the meaning of section 69 of that Act, but that was a different matter. Paragraphs 6.166 and 6.168; blocked aisles

[266]The need to reverse a laden truck in the event of an aisle being blocked was in our view a fact which was relevant to the demands of Mr Jones’ job. However, it was catered for in D9/473 (“Know Your Stuff For Mechanical Handling Equipment – RideCase Numbers: 3304495/2018 & others 455 On Powered Pallet Truck/Loading Truck”). There was also a reference in D9/484 (“Know Your Stuff For Mechanical Handling Equipment – Low Level Order Picking Truck”) to reversing a LLOP when it was unladen. Thus, the need to reverse a truck was plainly part of the ordinary work of an assembler and it was shown by both of those training documents. Paragraph 6.173; absence of systematic check of Mr Jones’ assessment that a product was not damaged

[267]The first sentence of paragraph 6.173 sufficed. The second one, to which the claimants objected, was, we agreed, evaluative and added nothing material. Paragraph 6.175 of the EVJD for Mr Jones; risk of injury from damaged products or packaging

[268]We thought that it was obvious that an assembler would be at risk of injury from handling damaged packaging and damaged products. But of course that risk arose also in relation to a customer assistant. Paragraph 6.176 of the EVJD for Mr Jones; exposure to “unpleasant leakages”

[269]Similarly, an assembler as much as a customer assistant would be at risk of being exposed to “unpleasant leakages” of the sort referred to in paragraph 6.176 of the EVJD for Mr Jones. It was helpful that the frequency was quantified by the respondent. Once a quarter was (applying H31) “occasionally”. Paragraphs 6.181 and 6.183 of the EVJD for Mr Jones; impact of a rejected OCC code

[270]The claimants questioned whether there was a need to report a rejected OCC code to a manager. We refer to a comparable situation in paragraphs 42 and 43 above. The situation to which paragraphs 6.181 and 6.183 of the EVJD for Mr Jones related was dealt with in the document at D9/581, which was the policy and procedure relating to “Reporting of Barcode and Pallet Label Errors”. In numbered row 2 on page 2, the procedure where that occurred “During Assembly” was stated to be “Report problems with Barcode (Outer Case Code) when picking to Warehouse Manager”. That, we thought, was conclusive of this particular dispute. Paragraphs 6.187, 6.188, and 6.197-6.199 of the EVJD for Mr Jones; restacking cages

[271]For the avoidance of doubt, the obligations of an assembler in regard to the stacking, and where necessary the restacking, of a cage were stated in the documents to which we refer in paragraphs 58-66 above. Paragraphs 6.200, 6.201 and 6.212-6.215 of the EVJD for Mr Jones; “Monotony of Assembly” and the weights of UODs Case Numbers: 3304495/2018 & others 456

[272]The content of paragraphs 6.200 and 6.201 of the EVJD for Mr Jones was in our view irrelevant. That was because the number of units that an assembler picked from pallets was in our view a meaningless statistic if taken on its own. Even if it were combined with the average weight of the units, that was in our view of no assistance. The weights of fully-laden cages was the subject of paragraphs 6.212-6.214. We failed to see the relevance of that too, given that the cages were carried around on the forks of a LLOP, and were not pushed around by an assembler. The number of filled cages which Mr Jones had by the end of his shift delivered to a loading bay (using a LLOP to do so) was the subject of paragraph 6.215. We failed to see the relevance of that factual assertion either. If the IEs disagree with any aspect of what we say in this paragraph, then they may include such aspect in their assessment of the value of the work of the comparators. We have already (in paragraph 259 above) dealt with the requirement for accuracy (which was stated again in paragraph 6.201 of the EVJD for Mr Jones), which was in our view in any event obvious. Paragraph 6.203 of the EVJD for Mr Jones; securing and labelling cages

[273]Similarly, the need to ensure that the right label was attached to a cage (which was stated in paragraph 6.203 of the EVJD for Mr Jones) was obvious, whether or not it was supported by a page of the AMC guide. In fact, the cross-reference in paragraph 6.203 was to page 58 of the AMC Guide, and D7/2/58 referred to condensing. Not even page 58 of the document sent to us on 2 May 2024 as the Pick by Store AMC User Guide was relevant, as it concerned(1) a “host parameter” in the form of “Highlight Location if Qty=1” and

(2) what happened if there was an invalid scan of a location or product barcode. In fact, the SSOWs at 5/3/5, 5/3/11 and D9/193 all said at the start of column 6: “On completion of the assignment, Assembler attaches destination labels to cage and disposes of any backing paper in the end-of-aisle waste bins.” Paragraph 6.206 of the EVJD for Mr Jones; tightening the straps on a roll cage

[274]The safe strapping of roll cages was the subject of the document at D9/539, entitled “Safe Strapping of Roll Cages” (to which we refer in paragraph 17.22 above). That document was undated, but in the index to the bundle it was said to be dated “01/01/2017”. The photograph on page 3 of the document supported the claimants’ proposition that there was no evidence of a risk of a tightened strap hitting the assembler in the face. That is because(1) the straps appeared from the photograph not to be elasticated but in any event

(2) there was no reference to such a risk in that document.

[275]We saw, too that there was no reference in the SSOWs at 5/3/5, 5/3/11 and D9/193 to a risk of the strap hitting the assembler in the face. In those circumstances, we concluded that paragraph 6.206 of the EVJD for Mr Jones was incorrect in asserting that there was a risk of a strap snapping and “[breaking] free” so that it might “hit [an assembler] in the face”. Case Numbers: 3304495/2018 & others 457 Paragraphs 6.208-6.209 of the EVJD for Mr Jones; delivering cages to the loading bay

[276]There was nothing in the SSOWs at 5/3/5, 5/3/11 and D9/193 which indicated a need to manoeuvre cages at the “assigned loading area” to which all of those SSOWs referred in column 6. Rather, the SSOWs showed that an assembler simply needed to drop the cages off accurately using a LLOP. The LLOP training pack at D9/476 said nothing relevant about that. Row number 59 of the procedure for Paperless Assembly in Stocked Depots at D9/560/9 and D9/620/10 merely required the position of “the [UODs] in a safe manner”. Those two further factors therefore also supported the proposition that there was no need for an assembler for example manually to push, pull or manoeuvre cages into a safe position in the bay or bays. There was no obvious need to do more than simply ensure that a load of cages was placed in a straight line (which will have been the way in which they were placed on the forks of the LLOP) in the assigned loading area. Indeed, moving them from that straight line was likely to make them less rather than more safely stowed there. In those circumstances, we rejected the propositions in paragraphs 6.208-6.209 to the effect that an assembler had to do the things described in those paragraphs. Paragraphs 6.211 and 6.236 of the EVJD for Mr Jones (and all other paragraphs in the EVJDs for the comparators, including, for example, paragraph 6.196 of the EVJD for Mr Pratt); moving a full roll cage by hand

[277]If and to the extent that an assembler had to pull a filled roll cage, then the SSOW at for example D1/3/8 to which we refer in paragraph 190 above was applicable and stated what was required of the assembler (or, as the case may be, a loader, or, if different, a marshaller). Paragraphs 6.221 and 6.223 of the EVJD for Mr Jones; dropping cages off at the loading bay

[278]The need to withdraw fully and carefully the forks of a LLOP from under the cages which it had been carrying and were now deposited, was obvious. It was in any event stated in the SSOWs at D5/3/5, D5/3/11 and D9/193. Paragraph 6.223A of the EVJD for Mr Jones; detaching “the straps from the third and fourth cages”

[279]We could find no justification in the training materials for strapping the third and fourth of four standard cages, as was implicitly asserted in paragraph 6.223A. We concluded from what we say in paragraphs 227-235 above that only the fourth and fifth of a line of empty slim line cages on a LLOP’s forks needed to be strapped together. Thus, we concluded on the evidence before us, only the straps on the fourth and fifth of a load of slim line cages would need to be “detached”. Paragraph 6.225 of the EVJD for Mr Jones; random accuracy checks Case Numbers: 3304495/2018 & others 458

[280]While random accuracy checking undoubtedly occurred, given the documents to which we refer in paragraph 175 above, we found it hard to see how driving a LLOP to the accuracy checking area and scanning the barcode there added anything material to the work of an assembler. That was because it simply involved putting the cages in a different place from the “assigned loading area”. Paragraph 6.229 of the EVJD for Mr Jones; the weight of products moved by an assembler

[281]We found it hard to see how the weight of the loads carried by the LLOP driven by an assembler could be relevant in determining the demands of the work of the assembler for the purposes of section 65(6) of the EqA 2010. Paragraph 6.230 of the EVJD for Mr Jones; hazards

[282]Given what we say in paragraph 68 of our second reserved judgment (at page 25 above), paragraph 6.230 of the EVJD for Mr Jones (stating that it was part of his work as an assembler “to ensure that he carried out all related activities in such a way as to avoid the hazards associated with it and the risks arising from those hazards”) added nothing material to the evidential picture of what was the work of an assembler (or any other comparator) for the purposes of section 65(6) of the EqA 2010. Paragraphs 6.232-6.235 of the EVJD for Mr Jones; changing the battery of a LLOP

[283]Paragraph 6.235 of the EVJD for Mr Jones was contested by the claimants, but only in part, and by the time of closing submissions, paragraph 6.235 was stated by them to have been agreed, as were the preceding four paragraphs. However, we looked at paragraph 6.235 first when looking through the respondent’s submissions in it, and those submissions referred to it as not being completely agreed. That paragraph had to be read against the background of the two preceding paragraphs of the EVJD, which related to taking the “Assembly Truck” (i.e. the LLOP) “to the Battery Bay to have the battery changed or swap the Assembly Truck for another one that had a charged battery.” Those words were taken from paragraph 6.232 of the EVJD for Mr Jones, and it was the claimants’ initial contention that the only thing that happened was that the battery would be changed: not that the LLOP might be swapped. However, by the time of closing submissions, it appeared that even that aspect of the matter was agreed and the claimants accepted that there might be a LLOP swap. By the time we realised that paragraph 6.235 of the EVJD for Mr Jones was agreed, we had formed the view that it was fundamentally flawed. It had to be read with paragraph 6.234 of that EVJD, which was in these terms. “When he swapped his Assembly truck for another, this required him to swap over by hand, any Cages he was carrying on his Assembly Truck at the time. To do this, he lowered the forks of the first Assembly Truck to the ground and withdrew them to deposit the Cages in the ground. The Cages were left near to where the new Assembly Truck was parked so that he could load them onto its Case Numbers: 3304495/2018 & others 459 forks. If the Cages were not in the correct position to be picked up using the MHE, they would need to be moved by hand, so the job holder ensured that he deposited them in the correct place.”

[284]The words of paragraph, 6.235 were these: “The job holder then transferred the Cages to the new Assembly Truck. When moving each Cage, the job holder checked the load was safely stacked within the Cage, positioned himself with the steerable wheels on the Cage facing him and gripped the Cage firmly by the upright metal bars taking care not to pull using the straps. He then manoeuvred the Cages towards him by pulling them, assessing the weight of the Cage and then using his body weight to push the Cage. He checked his route was clear as appropriate and took care not to crash or catch his hand on other objects. To mount the Cages on the forks, the job holder tilted each Cage backwards with his foot before manoeuvring each Cage onto the forks by hand. He ensured the Cages were securely mounted on the forks of the new Truck as described in paragraphs 6.64 to 6.71 above.”

[285]The claimants’ written closing submissions showed that they accepted that Mr Jones would transfer by hand the cages which had previously been on the LLOP that he had been driving to the new truck (with a charged battery) which he had been given.

[286]D9/475, to which we refer in paragraph 93 above, showed what was required of an assembler when there was a need for the battery in the LLOP which he was driving to be changed. At D9/475/2, this was said. “Once you have scanned a finished assignment to the correct Goods Out Bay the arm computer will display the following options menu: Select Activity 1 Log Off 2 Next Assignment 3 Break Before selecting option two to download a new assignment you should check the LLOP’s battery gauge. If the battery gauge indicates three bars or less you should get your battery changed before downloading a new assignment. If the battery gauge drops to three bars whilst you are doing an assignment you should finish that assignment and drop it at the correct Goods Out Bay before getting your battery changed.” Case Numbers: 3304495/2018 & others 460

[287]The pre-use check required by D9/463/15 which we have set out in paragraph 305 below applied before a LLOP was used, and it included a check that “there [was] sufficient charge shown on the battery gauge for it to be used”. There was at D9/475/2 a picture of the battery gauge showing three red bars. It showed that a fullycharged battery would have ten red bars, so that a properly-functioning battery with three red bars would still have approximately 30% of its maximum charge. We saw that in paragraph 6.15(e) of the EVJD for Mr Jones (and paragraphs 6.39(e) of the EVJDs for the other ambient DC assemblers), it was said that the pre-use check was to see if the “battery level charge indicator showed less than 2 bars” and that the check was done to “minimize the risk of a flat battery subsequently disrupting his work”. Reference was made there only to “the AMC Guide”. In addition, in paragraph 6.232 of the EVJD for Mr Jones, there was this agreed text. “At least once per shift, the job holder took the Assembly Truck to the Battery Bay to have the battery changed or swap the Assembly Truck for another one that had a charged battery. He did this when one bar was showing.”

[288]Both of those paragraphs (6.15(e) and 6.232 of the EVJD for Mr Jones) were markedly inconsistent with D9/475/2, to which, we saw, no party referred us in closing submissions. It was also very difficult to accept that the respondent would have permitted, let alone wanted, an assembler to let his LLOP run out of battery power mid-assignment. As we say in paragraph 77 of our second reserved judgment (at pages 27-28 above), we were first given a copy of the full AMC Guide to assembly on 2 May 2024. Nowhere in it was there any statement to the effect that the pre-use check of MHE was to see whether it had “less than 2 bars” showing the remaining charge in the MHE’s battery. The only references in the guide to batteries were to the AMC’s batteries. We were sent at the same time on 2 May 2024 copies of the AMC guides for loaders and assemblers in fresh DCs. They also had nothing in them about MHE batteries.

[289]We add for the sake of completeness that if the battery were faulty then there would be no way of knowing that unless the LLOP stopped suddenly, which would have probably have occurred mid-assignment, but in any event the possibility of the battery gauge being faulty was not relevant here unless there was a realistic possibility of it occurring. We had no evidence before us, despite the plethora of written assertions of fact before us, to the effect that any comparator had had to deal with a LLOP running out of battery power mid-assignment.

[290]Thus, if Mr Jones did what is described in paragraph 6.232, paragraph 6.234 and/or paragraph 6.235 of the EVJD for him then, we concluded,290.1 for the purposes of section 65(6) of the EqA 2010 it was an unauthorised way of working, and

290.2 it was not part of his work for those purposes. Case Numbers: 3304495/2018 & others 461

[291]That was because(1) the proposition (which for this purpose we will assume was being implicitly advanced in paragraph 6.235 of the EVJD for Mr Jones) that it was part of the work of an assembler to do what was described in paragraphs 6.232, 6.234 and 6.235 of the EVJD for Mr Jones was contrary to the content of D9/475 and (for example) the requirement to carry out the pre-use check stated at D9/463/15, and

(2) that content reflected what common sense suggested would be required of an assembler. That was to avoid the need to swap a LLOP mid-assignment by (1) being alert to the charge shown on the battery while driving the LLOP and, if it went down to three bars, taking the LLOP to the battery bay after the assignment had been completed (there being sufficient charge at that point to finish the assignment and take the LLOP to the battery bay), and (2) checking the charge in the battery on the LLOP as part of the pre-use checks on a LLOP and, if it was three bars or below, refusing to take it.

[292]In addition, and as a separate reason for rejecting the proposition (which we will also assume was being advanced by the respondent) that it would be part of the work of an assembler to move cages by hand from one LLOP to another, as we say in paragraph 276 above, there was nothing in the SSOWs at D5/3/5, D5/3/11 and D9/193 which indicated a need to manoeuvre cages at the “assigned loading area”, and we could not believe that if Mr Jones had ever had to park the cages currently on a LLOP whose battery needed to be changed and pick them up with a different LLOP, he would have had to do anything more than(1) park and leave the cages, and then

(2) run the forks of the new LLOP under the cages and press a button on the new LLOP causing the forks to rise and pick up the cages. At most, there might have been a need to move a cage slightly to one side or the other, to ensure that it was precisely in line with the others which had been on the LLOP whose battery was running out. However, even that was unlikely to be necessary, since the cages would have had at least some product on them, so that they would have been heavy and therefore unlikely to move more than minimally when deposited by the lowering of the LLOP’s forks.

[293]In addition, and separately, the idea that an assembler might need to “[tilt] each Cage backwards with his foot before manoeuvring each Cage onto the forks by hand” was a nonsense. That was because the forks of the LLOP would be (or at least it would always be possible for them to be) below the bottom of the cage, so that there would never be a need to tilt a cage to get it onto the forks. That was clear as a matter of practical reality, or common sense. It was also shown by what we say in paragraph 224 above, as well as what the respondent proposed for the content of paragraph 6.307 of the EVJD for Mr Pustula, which we have set out in paragraph 844 below. It was also supported very strongly by what was said293.1 in column 6 of D9/193 (which was the SSOW relating to “PBS Assembly” to which we refer in numerous places above, starting with paragraph 17.6), where it was said that to avoid the risk of the forks on a LLOP tipping a cage over, “LLOP forks ... should remain fully lowered until completely clear of the cages that have been left behind”, and Case Numbers: 3304495/2018 & others 462

293.2 column 4 of the SSOW concerning “Loading” at D1/3/17, where this was said (in relation to a “dolly sized cage”, but it was plainly applicable also to a standard cage): “Any adjustments to cage positioning must be performed with the truck forks in the fully lowered position.”

[294]The fact that the respondent was asserting that it was part of Mr Jones’ work for the purposes of section 65(6) of the EqA 2010 to do what was described in paragraphs 6.234 and 6.235 of the EVJD for him as far as we were concerned therefore undermined significantly the credibility of the respondent’s case about the comparators’ work for the purposes of section 65(6) of the EqA 2010. As a result, it caused us to look with even more care at the rest of the respondent’s evidence about the work of the comparators. That was because we found it hard to believe that Mr Jones’ managers would have condoned him doing the things referred to in paragraphs 6.234 and 6.235 of the EVJD for him. We also rather doubted that he himself would have countenanced doing those things, given that it at least could, and probably would, have affected his productivity figures and therefore his bonuses. In addition, tilting a loaded cage towards oneself would probably be unsafe.

[295]We concluded that the Leigh Day claimants must just have taken at face value the proposition that Mr Jones might have had to swap cages by hand in the manner described in paragraph 6.235 of the EVJD for him when his LLOP’s battery was changed or his LLOP was exchanged for one with a charged battery. If that was correct then it was, we concluded, no more than an acceptance of a proposition of fact.

[296]Having come to those conclusions, we looked at the other comparators’ EVJDs before us. We saw that paragraph 6.573 of the EVJD for Mr Hornak, paragraph 6.634 of the EVJD for Mr Davis, and paragraph 6.585 of the original EVJD for Mr Macko and all subsequent versions up to and including the one dated 7 April 2023, were all in the same terms as paragraph 6.235 of the EVJD for Mr Jones. We saw too that paragraph 6.585 of the EVJD for Mr Macko had, on or about 14 April 2023, been deleted. However, it appeared that that was purely because that passage was repeat of what was in paragraph 6.558 of the EVJD for Mr Macko, which remained. Thus, all of the EVJDs for the comparators working in ambient DCs had the text of paragraph 6.235 of the EVJD for Mr Jones in them.

[297]We then looked at the EVJDs for the fresh DC comparators. We first turned to the EVJD as it stood on 14 April 2023 for Mr Todd. That contained this passage under the heading “Craned Battery Changes”. “6.344 The Ceiling-Mounted Crane in the Battery Bay was used to change the batteries of each of: Case Numbers: 3304495/2018 & others 463(a) his Ride On PPT (changing the battery at least once or twice per day);

(b) the VOPT (changing it at least once a month); and

(c) his Loading Truck (rarely). 6.345 Prior to April 2016, the job holder took the relevant MHE to the Battery Bay, where a Warehouse Operative who had been provided with the relevant training (in addition to their core skill(s)), operated the Crane to change the battery. 6.346 From April 2016, the job holder was responsible for using the Crane to change the batteries in all three types of vehicular MHE.”

[298]There was then a description of the manner in which a battery was changed using the crane.

[299]The EVJD for Mr Pratt dealt (in the passage starting at paragraph 6.520) with “Craned Battery Change” as such only: there was no statement that before 2016, the changing of the loading truck’s battery was carried by someone other than Mr Pratt.

[300]Mr Pustula’s EVJD dealt with craned battery changes in the same way as the EVJD for Mr Pratt did. The passage in Mr Pustula’s EVJD where that was done was paragraph 6.359 onwards. Helpfully, in paragraph 6.360 of that EVJD, it was said that “On average, he had to do this once or twice every shift and it typically took 6 - 10 minutes.”

[301]The EVJD for Mr Young dealt with the changing by him (only) of the battery on a loading truck in the passage at paragraph 6.366 onwards of the EVJD for him as it stood on 14 April 2023.

[302]In no place in the EVJDs for the fresh DC comparators was it stated, or even remotely suggested, that they would change batteries mid-assignment. While that, in our view, was helpful to the respondent from the point of view of the credibility of at least that part of those EVJDs (although there were some issues in that regard, to which we refer in paragraphs 716-731 below), it reinforced our view that paragraph 6.235 of the EVJD for Mr Jones and the paragraphs in the EVJDs for the other ambient DC comparators in the same terms were wrongly agreed to by the respondent’s witnesses.

[303]However, the possibility of the words of for example paragraph 6.235 of the EVJD for Mr Jones being wrongly agreed to was not raised by us with the parties, and the proposition that the words of that paragraph (or its equivalent in the EVJDs for the other comparators to which we refer in paragraph 296 above) were incorrect was not put in cross-examination to any of the persons who gave evidence for the respondent. As a result, we concluded only that if what happened as described in paragraph 6.235 of the EVJD for Mr Jones, paragraph 6.573 of the EVJD for Mr Case Numbers: 3304495/2018 & others 464 Hornak, paragraph 6.558 of the EVJD for Mr Macko and paragraph 6.634 of the EVJD for Mr Davis, then, for the reasons given in paragraphs 290-293 above, it was not part of the work of that comparator for the purposes of section 65(6) of the EqA 2010. Paragraphs 6.237-6.238 of the EVJD for Mr Jones; battery condition

[304]Paragraphs 6.237 and 6.238 of the EVJD for Mr Jones were in these terms. “6.237 The job holder was alert to and reported any signs of battery wear, including damaged leads, sparks and any visible leakage or acid corrosion he identified whilst operating his MHE. 6.238 The job holder remained alert to any visible damage to the battery cables, whether across the top of the battery or connecting the battery to MHE. Any evidence of copper wire visible as a result of damage to the cables had to be treated with care to avoid the risk of electric shock and/or fires and had to be reported immediately. These incidents were rare (approximately once a year) but the job holder remained alert as described, at all times.”

[305]There was nothing in the documents to which we refer in paragraphs 93-101 above about the need for an assembler to be alert to visible damage to battery cables, for example. However, there was a need for a pre-use check of any MHE to include a check of the battery and its connections. For example, the pre-use safety checks at D9/463/15, to which we refer in paragraph 103 above, included this one. “Battery – Check that batteries are in good condition, connected and securely clamped in place. Check there is sufficient charge shown on the battery gauge for it to be used.”

[306]We thought that it was obvious that if there was damage to the insulation on a piece of electrical cable used on a piece of MHE (which would probably run at a fairly high voltage), then that piece of MHE would have to be taken out of use immediately. That thought was consistent with the following passage on page 4 of D9/509 (entitled “Know Your Stuff For Mechanical Handling Equipment – Battery Safety”). “When a battery lead is trapped it can damage the insulation which exposes the copper core. This can lead to shorting out of the battery which will cause a fire.”

[307]At the top of the page 6 of that document, there was this box, which was followed by a series of boxes showing what to do next. ‘Battery defect is found. Battery should be taken out of service immediately and identified by a “[Do] Not Use Sign”’. Case Numbers: 3304495/2018 & others 465

[308]We saw too that on page 2 of D9/509, this was said. “The battery leads are two copper Multi core cables that are surrounded by rubber insulation, the leads are designed to be flexible and damage resistant. The insulation is designed to prevents [sic] the cable cores from touching and shorting out the battery.”

[309]In the circumstances, we accepted that it was an implicit part of the work of an assembler (or any user of MHE, which was all of the comparators, of course) to be alert to the possibility of damaged battery cable insulation. However, we thought that the position was most clearly stated in D9/509, all of which was in our view relevant. Paragraphs 6.239-6.241 of the EVJD for Mr Jones; “Battery Acid Spillage”

[310]Paragraphs 6.239-6.241 of the EVJD for Mr Jones had the heading “Battery Acid Spillage”. The claimants did not contest paragraph 6.239, which was about Mr Jones’ awareness of the need to follow a specific procedure in the event of battery acid spillage and the training which he had received in order to do that. That was of relatively little value if it were not known whether or not, and if so how often, Mr Jones had to deal with an incident of battery acid spillage.

[311]The claimants recognised that, and asked in response to paragraph 6.240 for evidence of the frequency with which “these issues were identified by operatives on loading/assembly”. The response in the respondent’s written closing submissions was “As per MH 6.578.” That was a reference to the respondent’s response to the claimants’ submissions in relation to paragraph 6.578 of the EVJD for Mr Hornak. That response was in these terms. “The JH did not personally see an acid leak but he heard from colleagues about such a problem occurring (MH§107). Comparators VM and PE did not experience such a leak (VM§110 and PE§144). Manager CP confirms (CP§217) that this paragraph is accurate.”

[312]The first part of that submission was to the effect that Mr Hornak did not see an acid leak but he heard from his colleagues about it happening: probably once, we guessed. The second part of that submission related to Mr Macko and comparator “PE”. There was no comparator with those initials.

[313]The reference to “VM§110” was to paragraph 110 of Mr Macko’s witness statement, where he said this. “I confirm that paragraph 6.590 of the EVJD is correct. I have never seen an acid leak.” Case Numbers: 3304495/2018 & others 466

[314]Paragraph 6.590 of the EVJD for Mr Macko had been amended by the time of the hearing starting on 6 March 2023 before us. As so amended, it was in these terms. “In the event the job holder noticed any such damage or leakage, he was required to inform a Manager who would call a specifically trained Warehouse Operative to deal with such issues. During the Relevant Period the job holder did not identify or report any battery leakage but the job holder knew to look out for such issues and as necessary adopt the process for reporting them.”

[315]The reference to “PE” might have been to Mr Evans, but paragraph 144 of his witness statement related to the loading of slim line cages. The reference to “CP” was to Mr Pilley. In paragraph 217 of his witness statement, he said this. “I confirm that paragraphs 6.578 of Martin’s EVJD and 6.590 of Vlastimil’s EVJD are accurate.”

[316]So, there was no evidence at all before us about the frequency or otherwise with which Mr Jones encountered a battery acid spillage.

[317]In the circumstances, we concluded that the only factual material which the IEs and we could properly take into account about the risk of battery acid spillage and what to do if there was one, was that to which we refer in paragraphs 98-101 above but bearing it in mind that there was before us only some hearsay evidence of a comparator that someone else had experienced a battery acid spillage. In those circumstances, the only thing that we concluded could be taken into account was that it was necessary to know what to do in the event of battery acid spillage and that the possibility of coming across such a spillage was one of the risks (which only rarely eventuated) which existed in working in a DC. We doubted that that was going to make any difference to the value of the work of the comparators.

[318]In fact, there was some evidence about the frequency with which a comparator came into contact with spilt battery acid. That evidence was in paragraph 6.395 of the EVJD for Mr Young, where this was said. “If the job holder noticed any such damage or leakage, he immediately informed a Manager, something he did roughly 2 to 3 times a year during the Relevant Period, who would call a specifically trained operative to deal with such issues.”

[319]That seemed to us to add very little to the demands of the work of a comparator, in that all that the jobholder was required to do was inform his manager: not himself to clear up the spillage. Having said that, even that paragraph was inaccurate: see paragraph 949 below. Paragraphs 6.243-6.276 of the EVJD for Mr Jones; “Health and Safety” requirements Case Numbers: 3304495/2018 & others 467

[320]For the most part, we could not see that there was anything that we needed to determine in the disputed parts of paragraphs 6.243-6.276 of the EVJD for Mr Jones. We did see, however, that the respondent itself in its closing submissions in relation to those paragraphs relied on its training materials to support the contentions in those paragraphs. That was done in relation to paragraphs 6.248, 6.252, and 6.253.

[321]We add by way of explanation that a requirement not to do something is a prohibition rather than a job task, and that the prohibition would have to relate to the job task to be relevant. Even then, the prohibition may be obvious or be the result of a legal obligation, and in either event stating the prohibition will add nothing material to a stage 2 analysis.

[322]For example, in paragraph 6.252 it was said that “The job holder ensured that all Stock was kept dry and off the ground, to prevent damage to packaging and possible contamination of Products.” Assuming that that was an assertion that it was part of the work of an assembler for the purposes of section 65(6) of the EqA 2010 to ensure that all stock was kept dry and off the ground, that could relate only to what was required when the stock was moved by the assembler. The task was then to move the stock. The demands on the assembler for the purposes of section 65(6) were to move the stock with care, and of course items intended to be put on sale in a supermarket would need to be kept dry and care would need to be taken to avoid them falling onto the ground (not only in a DC but of course also in a store). But we thought that the need to take such care was obvious, both as a matter of common sense and because of the implied contractual obligation on the part of an employee to exercise reasonable skill and care in the course of doing the employee’s work.

[323]There was one positive obligation which we could see was relevant, and that was the obligation to be alert to signs of pest infestation, as asserted in paragraph 6.253 of the EVJD for Mr Jones. In that regard, while the respondent here asserted that there was a need for vigilance, the claimants said (comparably to the manner in which the respondent approached the claimants’ assertions of a need to be vigilant) that all that Mr Jones needed to do was to report anything that he happened to see which indicated the possibility of a pest infestation. While we preferred to characterise the need as one to be alert to the possibility rather than (as asserted in paragraph 6.253) “be vigilant for signs of pest infestation”, we could see that just as the claimants needed to be alert to such signs, so did their comparators.

[324]Another factor which we concluded we should mention here is that of course it was part of the work of an assembler to “Clean As You Go” (as asserted in paragraphs 6.262-6.263 of the EVJD for Mr Jones) or (as asserted in paragraphs 6.260-6.261 of that EVJD) address fire hazards, just as much as it was part of the work of a customer assistant to do those things.

[325]Similarly, it added nothing to say that an assembler had to communicate with managers and colleagues, as asserted in paragraphs 6.264-6.273 of the EVJD for Mr Jones. While it would be more difficult for some people than others to communicate Case Numbers: 3304495/2018 & others 468 easily and freely with managers and colleagues, it was in our judgment an obvious part of the work of an assembler, and therefore did not need to be stated or be the subject of a finding of fact by us. Paragraph 6.275 of the EVJD for Mr Jones; training and mentoring

[326]The claimants asked for evidence to support the assertion in paragraph 6.275 of the EVJD for Mr Jones that “Around once a week, the job holder provided the benefit of his knowledge and experience to other Warehouse Operatives.” The respondent’s response was to say that Mr Evans gave evidence that he believed that Mr Jones would have done that, and that Mr Matthews agreed with that view. That was in our judgment of no evidential weight.

[327]Having said that, it was in our view obvious that an experienced assembler might give advice to other assemblers, but whether that was in fact what happened seemed to us to be of little factual impact if, as was the case here (see paragraphs 112-113 above), the employer’s training documents showed that a new assembler would be trained by a trainer, and (as was the case in relation to Mr Jones) there was no evidence that the comparator was a trainer.

[328]Nevertheless, it was clear that the implied term of trust and confidence might have the effect that an experienced assembler was required to point out an obvious shortcoming in the work of a recently-employed fellow assembler. However, we were not sure whether that requirement added to the demands of the job for the purposes of section 65(6) of the EqA 2010. If the IEs are of the view that it did indeed add to those demands, then they may take it into account. Paragraph 7 of the EVJD for Mr Jones (“Key facts including metrics”)

[329]We also could not see how the matters to which reference was made in section 7 of the EVJD for Mr Jones (including, for example, what “Focus and concentration”, or what “Stamina”, was required), even if they were true (and the evidence to support them was scant), were relevant at stage 2, i.e. to the analysis that we were obliged to carry out after the stage 2 hearing that started on 6 March 2023.

[330]If the IEs disagree with us in that regard then we will review our conclusion and consider the parties’ contentions on the disputed things in paragraph 7 of the EVJD for Mr Jones which the IEs regard as relevant. Paragraphs 8.1-8.27 (the section headed “Performance and Accountability”) and paragraphs 9.34-9.41 (in the section headed “Working Conditions”) of the EVJD for Mr Jones

[331]Similarly, we could not see how the respondent’s performance management regime could be relevant at this stage. It might be relevant to a claim that there was a Case Numbers: 3304495/2018 & others 469 material factor defence within the meaning of section 69 of the EqA 2010, but that was a different matter.

[332]Here too, we say that if the IEs disagree with us in that regard then we will review our conclusion and consider the parties’ contentions on the disputed things which the IEs regard as relevant. Other working conditions and risks and hazards - the rest of paragraph 9 and paragraph 10 of the EVJD for Mr Jones

[333]The only part of the rest of paragraph 9 which we thought was material was that part which dealt with “disagreeable temperatures”. That part was relevant because we saw the temperatures in which Mr Jones worked as one of the relevant conditions in which assemblers worked. Having said that, we doubted the materiality of the words used in that regard in paragraph 9 of the EVJD for Mr Jones by the respondent. That was because we thought that evaluative language was unhelpful, so we thought that all that needed to be taken into account was the objective phenomena relating to the temperatures in which Mr Jones had to work. In fact, we did not see any evidence relating to those temperatures. We saw nothing material in the other parts of paragraph 9. Nor did we see anything material in paragraph 10, which concerned “Risks and Hazards”. That was mainly because the latter were obvious from the tasks of an assembler and the way in which they had to be carried out, as shown by the training materials to which we refer above in this appendix. It was also because (for the reasons stated in paragraph 522 below) claimed hazards in the working environment such as poor light, were, just as much as was the case in relation to the work done by the sample claimants, hazards which (assuming they did in fact exist) must have arisen because of failures on the part of the respondent. (We refer to lighting in the context of loading in a number of places below; the first place is paragraphs 480-482.) It did not seem right to us to include in our analysis of the working conditions of either the claimants or their comparators hazards which would have arisen (if they did in fact arise) only because of a failure by the respondent to comply with its obligation to take reasonably practicable steps to ensure that the working environment was safe.

[334]Equally, the actual number of, for example, accidents resulting in injury could not be relevant here. The issue was what were the risks inherent in doing the work in the environment in which it had to be done, which included the respondent’s obligation to comply with its own legal requirements. We record here that that was in line with what the respondent submitted in relation to paragraph 6.194 of the EVJD for Mr Pratt (to which we return in paragraph 615 below), which was this. “Whether or not JH experienced any particular injury is not the point. The question is whether the activities of the JH are impacted because of the risk of it, the working environment is made up of all the circumstances in which JH works.” Case Numbers: 3304495/2018 & others 470

[335]Incidentally, paragraph 10.16 of the EVJD for Mr Jones was in substance a repeat of paragraph 6.206 of that EVJD (and not paragraph 6.61, as was implied in paragraph 10.16), with which we deal in paragraphs 274-275 above. Loading as recorded in the EVJD of Mr Hornak; other relevant determinations relating to the work of Mr Hornak

Introduction

[336]Mr Hornak’s work as a whole consisted almost entirely of assembly and loading. There were in the EVJD relating to his work brief references to dekitting (paragraphs 6.94-6.103) and marshalling (paragraphs 6.554A and 6.554B), but(1) dekitting was merely the taking out of a trailer any equipment which had not been taken out by the team which would usually dekit a trailer (see paragraphs 86-89 above), and

(2) marshalling (see paragraphs 92.2-92.4 above) involved simply moving cages with stock on them from one area of the DC to another, and moving cages from one area of the DC to another was one of the things that an assembler did all of the time. We do not mean in any way to suggest that either task was undemanding: far from it, as can be seen from for example the documents to which we refer in paragraphs 92.2- 92.4 above. We are referring here to the extent to which there was a need to make extensive reference in the EVJD for Mr Hornak, or here, to the work of dekitting and marshalling. What we needed to know was how much time Mr Hornak spent doing marshalling or dekitting, and that was the subject of paragraphs 21 and 22 of Mr Hornak’s witness statement, which we did not understand to have been challenged.

[337]In paragraph 21 of that statement, Mr Hornak said that he “did not perform dekitting as a separate activity, but only as part of the loading tasks”. That, seen in the light of paragraph 6.96 of the EVJD for Mr Hornak, which we have set out in paragraph 409 below, which we interpreted that as a statement to the effect that (applying H31) Mr Hornak occasionally did the work of dekitting and only in the course of loading, suggested that it was an unnecessary complication to refer to dekitting as a separate task undertaken by him. In fact, for the reasons stated in paragraphs 410-412 below, there were reasons for doubting Mr Hornak’s evidence about dekitting. In any event, dekitting was done by him as part of his work of loading, and we examine his evidence on dekitting in the course of examining his evidence on the task of loading.

[338]In paragraph 22 of his witness statement, Mr Hornak said that about once a month he did the work of marshalling. Applying H31 that meant that he did it regularly, but he did not say (even in paragraphs 6.554A and 6.554B of the EVJD for him) how much time he would spend on it when he did it.

[339]We consider below first whether what was said in relation to Mr Hornak’s work added anything material to the picture of the work of assembly which we have described above (by first referring to the relevant training materials and then analysing the parties’ contentions about the work of Mr Jones in the light of those materials). We Case Numbers: 3304495/2018 & others 471 then consider in detail the contentions of the parties in relation to the work of loading as done by Mr Hornak. The task of assembly as done by Mr Hornak

[340]We found little that was additional in the parties’ contentions about the part of the EVJD for Mr Hornak which concerned assembly (i.e. the parties’ contentions about the things on which there was a dispute). It would have been helpful that the figure of 80% was agreed in regard to paragraph 6.427 of the EVJD for him if what was said in that paragraph had been clear. In fact, it was not. We wondered whether it was agreed that if Mr Hornak was assigned to do the task of assembly in a shift, then he spent at least 80% of his time doing the work of assembly, or whether it was that in a shift doing the work of assembly he spent 80% of his time stacking cages. The text of paragraph 6.427 was this. “The job holder stacked Units at varying heights in each of the Cages being Assembled to in each Assignment. These series of physical movements were required of the job holder for each Unit he assembled throughout the shift (i.e., an average of 1,161 Units on each ‘full’ shift on Assembly i.e., he was deployed on Assembly for 80% of more of his shift (rising to a maximum of 1,750 Units), weighing (on average) 7.72 tonnes per shift).”

[341]We saw that in paragraph 3.23 of the EVJD for Mr Hornak, it was said that he “undertook an average of 6 Assembly Assignments per shift, during each full shift he Assembled an average of 1,161 Units, each weighing up to 20kg (or exceptionally up to 25kg) (an average of 5.54kg).” That did not help us understand what was meant by paragraph 6.427 of the EVJD for Mr Hornak. Rather more helpfully as far as the proportion of time spent by Mr Hornak on assembly was concerned, the parties agreed the terms of paragraph 3.30 of the EVJD for him, which stated that during the relevant period, “he was deployed on Assembly for approximately 14% of his overall working time.” Otherwise, we saw nothing in the section of the EVJD for Mr Hornak or in the things said by the parties in support of their positions in relation to disputes concerning the task of assembly as done by Mr Hornak, which required us to say anything more about that task as done by him. That was because the section of the EVJD for Mr Hornak relating to assembly was so far as material otherwise in the same terms as the EVJD for Mr Jones. The task of loading as done by Mr Hornak and the other ambient DC comparators

[342]The first stage of the loading process was stated in paragraphs 6.51-6.57 of the EVJD for Mr Hornak as it stood on 15 April 2023. (We record here that that EVJD was 178 pages long, albeit in double-line spaced text. We record here too that it was stated in the EVJDs and the evidence of Mr Macko and Mr Davis that they too did loading at an ambient DC.) There were several features of the parties’ positions in regard to those paragraphs which bore mention here. Case Numbers: 3304495/2018 & others 472

[343]The first is that while the claimants opposed the cross-reference in paragraph 6.55 to “the AMC Guide”, that was only for the general reasons set out in paragraph 75 of our second reserved judgment (at page 27 above), but we were nevertheless unable to understand to what pages of the appendix to the EVJD for Mr Hornak which contained extracts from the AMC guide, reference was intended to be made. That was because the content of the pages to which reference was made did not match up with the cross-references. However, that did not matter as far as we were concerned because we believed that we had identified in the training materials to which we refer above all of the necessary references to the AMC.

[344]The second feature of the parties’ positions which bore being mentioned here arose from paragraph 6.56 of the EVJD for Mr Hornak, which was in these terms. “The job holder then drove his Loading Truck to the allocated Bay, being careful to park it at least 2 clear metres from the Bay door, to avoid the risk of collision between his Loading Truck and the Bay door equipment.”

[345]The claimants opposed the words in that sequence, proposing the insertion also of the letters “ing” after “park”. This is the text which the claimants proposed, showing those amendments. “The job holder then drove his Loading Truck to the allocated Bay, being careful to parking it at least 2 clear metres from the Bay door, to avoid the risk of collision between his Loading Truck and the Bay door equipment.”

[346]In fact, the opposed words were a reflection of what was said in the SSOW at D1/3/17 and the other versions of it to which we refer in paragraph 70 above. There, in column 1, this was said. “Loader obtains MHE from designated park area and performs and records safety checks on equipment appropriate to truck to ensure equipment is fit for use (defect procedures apply if not). Loader travels to Goods Out bay. The Loader must stop and get off their MHE at least 2 metres clear of the bay door controls to prevent collisions between MHE and the bay door control area.”

[347]Interestingly, the next paragraph in the SSOW was also reflected in the next paragraph in the EVJD, i.e. paragraph 6.57.

[348]In any event, as with the task of assembly, we found relatively little in the very long description in the EVJD for him of what Mr Hornak did by way of loading that added anything material to what was in the training materials, although there were many factual issues which arose from the EVJD. The training materials for loading in an ambient DC are referred to in paragraphs 68-85 above. Our conclusions on the disputed parts of the EVJD for Mr Hornak relating to loading are as follows. Case Numbers: 3304495/2018 & others 473 Paragraph 6.64 of the EVJD for Mr Hornak; opening a trailer roller shutter door

[349]Paragraph 6.64 of the EVJD for Mr Hornak concerned what a loader had to do to open a closed roller shutter door on a lorry trailer that had been parked at the loading bay. The respondent’s proposed words by the time of the hearing before us were as follows. “To do that, the job holder leant across a gap (approximately 6-8 inches) between where he was standing on the edge of the Bay and the back of the Trailer. The job holder reached across that gap, bending down on one knee to release the Trailer door handle before pulling it up as he moved into a standing position and securing it into the Trailer roof.”

[350]The claimants proposed amendments to those words on the basis that the respondent over-stated the requirement by using the word “lean” when “reach” would be more accurate. In a number of places in the training materials before us, the task of opening the trailer shutter door was referred to only as “[opening] the trailer shutter using the ‘D’ handle” (for example D9/374/2; “Know Your Stuff For Grocery/Non-Food Good[s] Out – Loading Units of Delivery”). However, at D9/383/2 (“Know Your Stuff for Grocery/Non-Food Goods Out – Bay Door Equipment”), immediately under the heading “Operating A Dock Leveller”, this was said. “If the trailer has a shutter door and it is closed, stand on the dock leveller and open it slowly with the handle, using the correct manual handling techniques.”

[351]In fact, we had ourselves seen a trailer in place when we carried out our site visits on 13 April 2023. In the circumstances, we agreed that the claimants’ proposed words were a better reflection of the reality, but we also thought that the words of D9/374 and D9/383 which we have quoted added to the picture materially. Paragraph 6.69 of the EVJD for Mr Hornak; operating the dock leveller

[352]The claimants objected to the following words in paragraph 6.69 of the EVJD for Mr Hornak (they related to ensuring that the dock leveller overlapped with the floor of the trailer by at least 100mm across the full width of the trailer “to ensure a safe platform for MHE carrying Stock into the Trailer”). “If not, the platform could slip, risking damage to Stock and MHE, as well as injury to the job holder.

[353]Question and answer 4 on page 4 of D9/383 were in these terms. “Why is it important for the dock leveller to have sufficient overlap onto the base of the trailer? Case Numbers: 3304495/2018 & others 474 – To stop the dock leveller slipping off the trailer when cages or mechanical handling equipment pass over it.”

[354]That question and its answer supported the words used by the respondent. However, at least one effect of cages or MHE slipping or falling was obvious: the possibility of harm to a cage and its contents and to the MHE. The need to guard against that was obvious. The possibility of injury to a loader was less obvious, but in any event, of course there was always the possibility of personal injury through MHE or something which it was carrying slipping. This particular dispute therefore seemed to us to be pointless because the opposed words in our view did no more than state the obvious. Thus, they could just have been ignored by the claimants, just as we thought that the IEs and we could ignore them because they added nothing material. On the other hand, taking them into account was informative, so that there was nothing wrong with them being taken into account on the basis that they did not describe any part of a loader’s work for the purposes of section 65(6) of the EqA 2010, although they did help the reader to understand an aspect of that work. A discussion; an illustration of(1) how the parties’ approach to the factual issues before us was deficient and

(2) what in our view they should have done

[355]Having said those things, if the respondent had just referred to the final three boxes in the section on page D9/383/2 headed “Operating A Dock Leveller”, then it would have stated sufficiently and incontrovertibly what was involved in the task of operating a dock leveller. We add that while D9/383 suggested that there was no requirement for the overlap to be “at least 100mm (4 inches)”, as claimed in paragraph 6.69 of the EVJD for Mr Hornak, but merely “sufficient ... to prevent [the dock leveller] from slipping off as the trailer [was] loaded or unloaded”, at D2/3/14, to which we refer in paragraph 88 above, it was said in column 3 that “sufficient overlap” for the dock leveller was “at least 10cm”. We add too that while in paragraph 6.71 of that EVJD for Mr Hornak there was a description of what the loader was required to do by way of checking that the trailer had been reversed into the bay at the correct angle, and what was required if that had not happened, there was a description on page 3 of D9/383 of what to do if the trailer was not “straight onto the bay”, in the following question and answer. “What should you do if the trailer is not straight onto the bay, is too high or the dock leveller does not overlap far enough onto the base of the trailer?• Close the bay door and then contact your Team Manager or the Goods In Clerk making sure you tell them which bay you are working on and what the problem is. They will then speak to the Driver or Shunter and ask them to move the trailer into the correct position.”

[356]Paragraphs 6.66-6.67 of the EVJD for Mr Hornak also referred to the need to check to ensure that the trailer was correctly aligned with the dock leveller. Paragraph 6.68 was blank by the time that the EVJD was finalised. However, the section dealing with Case Numbers: 3304495/2018 & others 475 the dock leveller went on to paragraph 6.72 inclusive. We should say, however, that paragraph 6.72 stated the time that it would usually take for the trailer to be moved, which was irrelevant, but also stated that the loader would then start planning and collecting his load, which might have been relevant, but also cross-referred to paragraph 6.107. In any event, the EVJD dealt with the issue of the dock leveller in six paragraphs which were in our view unnecessary when seen against the background of the existence of D9/383, and that document also dealt sufficiently with the issue of opening the bay door, opening the trailer’s doors, and closing those doors. The latter things were dealt with in paragraphs 6.58-6.65 and 6.292-6.296 of the EVJD for Mr Hornak. No party referred us either before or in closing submissions to D9/383 or its equivalent in relation to a fresh DC, which was D9/385, (although, as we say in paragraph 79 above, the respondent, in its recast case, did refer in several places to D9/385, but only by way of support for what was already in the EVJD for Mr Pratt). In our view, that document should have been the starting point for a discussion between the parties about what was the work of going to a loading bay and opening the bay door, opening the trailer door if it was not already open, operating the dock leveller and then putting away the dock leveller and closing those doors. The parties would then have been able to see whether any oral evidence was required to add to what was in that document as a statement of what was required by the respondent of a loader. We doubted very much that anything more was required by way of work and we therefore suspected that there would not have needed to be any further evidence in that regard. That was not least because we doubted that the IEs or we would need to know more than what was stated in D9/383 and D9/385. Paragraph 6.72 of the EVJD for Mr Hornak; what happened if a trailer had to be repositioned

[357]In contrast to the dispute about the content of paragraph 6.69 of the EVJD for Mr Hornak, to which we refer in paragraph 352 above, the dispute about the content of paragraph 6.72 of that EVJD was about something that was material. The words of paragraph 6.72 were about what happened if Mr Hornak (and, in fact, Mr Davis and Mr Macko, all of whom had the same words in the EVJDs for them) had any concerns about the positioning of the trailer at the bay door. According to paragraph 6.72: “Where that happened, it would usually take 10 - 20 minutes for the Trailer to be moved, which the job holder used to start the planning and collection of his load (see paragraph 6.119).”

[358]Instead, the claimants proposed these words. “Where that happened, it would usually take 10 - 20 minutes for the Trailer to be moved, and the job holder would normally be given another load.”

[359]Those proposed words of the claimants were based on what was said by Mr Hornak, Mr Davis and Mr Macko in cross-examination. We concluded that the proposed words encapsulated what all of those three witnesses had said in cross-examination Case Numbers: 3304495/2018 & others 476 about the situation. We therefore accepted it as an accurate statement of what occurred. Having said that, we rather doubted that the IEs or we needed to know that. That was because it was about what others would do, not what the loader would do, and we could not see how those factual circumstances could affect the determination of the value of the work of a loader. We consider separately, in paragraphs 432-439 below, the question of the extent to which a loader might need to plan the load. Paragraph 6.75 of the EVJD for Mr Hornak; preparing to load

[360]The dispute about paragraph 6.75 of the EVJD for Mr Hornak was about a minute (i.e. very small) matter. The one thing in dispute was whether “the job holder had to check the internal condition of the Trailer to ensure it was” “safe” or (as the claimants asserted) “ready” “for him to start his load”. That was done by looking to see what, if anything, there was in the trailer by way of rubbish such as cardboard or used/discarded packaging. So, the dispute was about whether the word “safe” or the word “ready” should be used.

[361]We concluded that it did not matter what word was used. In any event, the task of the job-holder in this regard was stated accurately and succinctly at D9/374/2, in this way. “Before you begin loading, check that:• The trailer is undamaged, clean, dry and free of any debris. ... If there is a problem when checking the trailer, report it to the Team Manager.”

[362]The reality was that if the trailer was damaged, dirty or wet, or there was debris in it, then it might well not be safe to use. And if it were unsafe to use then it would also not be ready to be used. But whatever the justification for the requirement to check for damage, dirt, fluid and debris, we presumed that there was a need to do something practical (as well as reporting it “to the Team Manager”) if there were damage to, or dirt, fluids, or debris in, the trailer. However, it was not stated what might need to be done if the loader found that the trailer was damaged, dirty, or wet or that it had debris in it (in addition to reporting it to the team manager). Using common sense, we could see that if there was debris in the trailer then it probably could have been cleared by the loader himself. If there was damage to the trailer then the loader might have had to judge whether the trailer needed to be repaired before it was used. However, we could not see that being something which the loader would have been required to decide. Rather, we concluded, it would in that case have been necessary for the loader only to report the damage to a manager. If there was dirt in the trailer, then we could see the loader cleaning it up if it was minor, but otherwise the loader would be required to inform his manager, who would then decide what to Case Numbers: 3304495/2018 & others 477 do (such as calling in what the respondent called a “hygiene” team to clean up the trailer). If there was water on the floor of the trailer, then, we thought, it might be minor, and the loader might be able to remove it, but if that were not possible then, we thought, the loader would be required to report the water to a manager, who would then decide how to proceed. All of those things were consistent with the requirement to “report [a problem] to the Team Manager”, as stated at D9/374/2.

[363]Indeed, we could not see the respondent requiring a loader to load a trailer which was wet underfoot to any significant extent, if only because of the risk of slipping and the consequent risk of injury or damage to MHE, UODs, or stock. Surprisingly, that possibility was raised by the EVJDs for, and evidence of the respondent relating to, the comparators, in the manner to which we now turn. Paragraphs 6.78-6.80 and 6.83 of the EVJD for Mr Hornak; preparing to load continued

[364]Paragraph 6.78 of the EVJD for Mr Hornak as proposed by the respondent by the time of closing submissions was in these terms. “The job holder also ensured it was safe for him to start his load by checking the floor of the Trailer for signs of rainwater or occasionally, ice. The rear of the Trailers were open to the elements during deliveries to Stores. The job holder paid particular attention to signs of water ingress and/or spillages during periods of heavy or persistent rain or snow as during such periods, water ingress resulted in up to 4 (out of a total of 7) Trailers per shift requiring attention.”

[365]We noted the assertion in that paragraph that four out of seven trailers might need attention because of water ingress during periods of heavy or persistent rain or snow. Applying a little practical common sense, we thought that such ingress would have been expected to be dealt with when the trailer was dekitted. We return to the issue of dekitting in paragraph 386 below.

[366]Paragraphs 6.79, 6.80 and 6.83 of the EVJD for Mr Hornak were in the following terms. “6.79 The job holder decided whether the extent of any water ingress inside the Trailer and/or on the Dock Leveller was something he could deal with himself or whether it necessary for the hygiene team to address the issue(s) (in which case, he reported it to the Loading Desk in the same way as described above). 6.80 Frequently, where unsure about the risk of his MHE slipping, the job holder decided to load all UODs by hand having positioned his Loading Truck immediately in front of the Dock Leveller, which he did to ensure his own safety and that of the stock he was loading.” “6.83 If after having assessed the condition of the Trailer and/or the Dock Leveller, he started loading using his Loading Truck but the job holder Case Numbers: 3304495/2018 & others 478 encountered any evidence of his Loading Truck slipping during the subsequent loading process, he stopped using the Loading Truck and used a Manual Pump Truck or Pedestrian PPT to load Pallets or nonwheeled MUs instead, as these MHEs were less likely to slip (particularly given the weight of these particular UODs).”

[367]The evidence of Mr Rogers as recorded in lines 2-15 of page 71 of the transcript of day 21 was that he did not recognise the practice stated in paragraph 6.79 of the EVJD for Mr Davis. The words of that paragraph were different from those in paragraph 6.79 of the EVJD for Mr Hornak, as were the words of paragraph 6.80 of the EVJD for Mr Davis. Paragraphs 6.79 and 6.80 of the EVJD for Mr Davis were as follows. “6.79 If the job holder was confident that the amount of any water ingress was so limited that it did not prevent the safe use of MHE within the rear of the Trailer, he placed waste cardboard over any damp areas to mitigate against the risk of accidents. 6.80 Where he chose not to do that, the job holder decided to load all UODs by hand having positioned his Loading Truck immediately in front of the Dock Leveller, which he did to ensure his own safety and that of the stock he was loading. He did this for Trailers with wet floors around 15% of the time.”

[368]Paragraphs 6.81 to 6.84 inclusive of the EVJDs for Mr Hornak, Mr Davis and Mr Macko were in precisely the same terms, namely as follows. “6.81 Any spillages arising from damaged Stock would also be dealt with by hygiene team if the job holder was not able to deal with the issue quickly. 6.82 If ever he was waiting for the hygiene team, the job holder continued to prepare for his load (e.g., collecting UODs) or, if asked to do so by the Manager, would carry out a different task. 6.83 If after having assessed the condition of the Trailer and/or the Dock Leveller, he started loading using his Loading Truck but the job holder encountered any evidence of his Loading Truck slipping during the subsequent loading process, he stopped using the Loading Truck and used a Manual Pump Truck or Pedestrian PPT to load Pallets or nonwheeled MUs instead, as these MHEs were less likely to slip (particularly given the weight of these particular UODs). 6.84 The job holder loaded all other UODs by hand i.e. by pulling/pushing each of them off the lowered forks of the Loading Truck at the edge of the Dock Leveller, before manoeuvring them into the correct load and row position.” Case Numbers: 3304495/2018 & others 479

[369]Paragraphs 6.77 and 6.78 of the EVJD for Mr Pratt were in different words but to the same effect. They were supported by paragraph 50 of the witness statement of Mr Yates. That paragraph was in these terms. “I confirm that paragraph 6.77 and 6.78 of Shawn’s EVJD is an accurate description of what Shawn would be expected to do. I train loaders to check the condition of the floor of the Trailers prior to and during Loading and that they are personally responsible for their own safety whilst working in the Trailer. If there is a significant amount of water on the floor, then I train them to ask for the Hygiene Team to deal with it or that they can refuse to load the Trailer. They have to make the call. If, on the other hand, there is only a little water on the floor, then they can decide to continue to load the Trailer, with or without taking the Loading Truck into the Trailer, and I know that some loaders will do that. It is their call; and they are responsible if there is an accident subsequently and they have not reported it.”

[370]He was not cross-examined on that. Nor was Mr Pratt cross-examined on what he said in paragraphs 41 and 42 of his witness statement, which was that(1) paragraphs 6.77 and 6.78 of the EVJD for him were accurate,

(2) it was his “call as to whether [he dealt with it himself] or reported it for the Hygiene team to clean”, and

(3) “[i]f there was still some water and it was slippery, [he] might choose to load the UODs by hand to ensure [his] safety and the safety of the Stock”. The latter assertion was not a resounding endorsement of the proposition that Mr Pratt could, or should, as part of his job go onto a wet dock leveller with a wet trailer floor beyond it, pushing heavy cages. In addition, Mr Yates’ evidence in paragraph 50 of his witness statement was that it was up to the loader to decide whether to take the risk. That too was not cogent evidence that the respondent required loaders to do what was described in for example paragraphs 6.80, 6.83 and 6.84 of the EVJD for Mr Hornak.

[371]The exchange between Mr Rogers and Mr Jones KC at lines 4-15 of page 71 of the transcript of day 21 bears repeating in full here. ‘Q. Can I ask, please, that you be shown paragraph 6.79 of the job description [for Mr Davis]. In fact, if we look at 6.78, we’re dealing with what’s described as water ingress inside the trailer or dock leveller, do you see that? A. Yes, I do. Q. And at 6.79, it says: “If the job holder was confident that the amount of any water ingress was so limited that it did not prevent the safe use of MHE within the Trailer, he placed waste cardboard over any damp areas to mitigate against the risk of accidents.” Is that a practice you recognise? A. No. Case Numbers: 3304495/2018 & others 480 Q. So what should happen if a job holder is faced with an amount of water ingress but thinks it’s still safe to use MHE in the rear of the trailer? A. He wouldn’t use the MHE in the rear of the trailer. He would push the cages on by hand, I’d assume. Q. So instead of using MHE, he would load by hand? A. Hmm. Q. If we look at 6.80 it says: “Where he chose not to do that, the job holder decided to load all UODs by hand having positioned his Loading Truck immediately in front of the Dock Leveller ...” A. Yes. Q. “... which he did to ensure his own safety ...” That’s what you think he should do? A. Yes.’

[372]We found that to be unimpressive evidence. If the floor of a trailer was wet, then there was a risk of slipping, and in the circumstance that Mr Rogers did not recognise the practice stated in paragraph 6.79 of the EVJD for Mr Davis, there was no evidential support, in the form of any manager’s approval of it, for it to be part of the work of Mr Davis, or any other loader, for the purposes of section 65(6) of the EqA 2010 to do what Mr Davis said he did, which was to put cardboard on the floor of the trailer. Nor was there any such evidential support for the proposition that a loader was required by the respondent to load anything onto a trailer the floor of which was wet.

[373]There were some strong reasons for rejecting the proposition that either of those courses of action could be part of the work of a loader for the purposes of section 65(6) of the EqA 2010. The first was that the use of cardboard, i.e. cardboard which was left on the floor of the trailer, would give rise to a major risk of tripping or a UOD being parked on an uneven floor. If the cardboard was used to dry up the water, and it was then discarded, then that would be a different matter, as the result would be that the floor of the trailer would then be dry. But if the floor were dry then the LLOP or other MHE could safely be used and the practice asserted in paragraph 6.80 of the EVJD of Mr Davis, Mr Hornak and Mr Macko would not be necessary.

[374]The second reason for rejecting the proposition that a loader could ever load a trailer which had water in it was that the water would be highly likely to get on the dock leveller, which was metal, making it highly slippery. That would give rise to such a risk to safety that the respondent could not have condoned it.

[375]In fact, in paragraph 6.79 of the EVJD for Mr Hornak (and Mr Macko’s job description was in the same terms in this regard), it was implicitly asserted that it might be possible to use the dock leveller safely even if it had water on it. That was contrary to Case Numbers: 3304495/2018 & others 481 our experience merely of walking on wet metal drain covers: they can be very, very slippery just to walk on. If a dock leveller were wet, then it would be unsafe for all purposes, we thought.

[376]In addition, Mr Rogers merely said that he “[would] assume” that a loader would “push the cages on by hand”: not that he approved of that practice, or that the respondent would approve of that practice. We saw that he agreed with the proposition which was put to him by Mr Jones as recorded in the passage set out in paragraph 371 above, that Mr Davis “should do it”, “to ensure his own safety”. But that was a matter of moral or legal obligation, not of fact. In addition, it was simply a repetition of the words in paragraph 6.80 of the EVJD for Mr Davis, which were also in paragraph 6.80 of the EVJDs for Mr Hornak and Mr Macko.

[377]However, in paragraph 55 of his witness statement, Mr Rogers specifically said that(1) he “[did] not train people to load by hand in these circumstances”,

(2) it was “each individual loader’s decision if he chooses to do so” and

(3) the loader might do it “because, although there were concerns about the MHE slipping, he wanted to ensure he was still productive”. In cross-examination, Mr Rogers went further in that on pages 73-74 of the transcript of day 21, he said that he trained people not to do it. Not that he did not train them to do it, but that he trained them not to do it. After the first part of paragraph 55 of his witness statement that we quote at the start of this paragraph was put to him (“I do not train people to load by hand in these circumstances ...”), there was the following exchange (starting at line 3 of page 73). “A. That’s the loader’s choice. That’s his decision. Q. Okay. A. If he felt it safe he would take full responsibility. Q. Good. So just so we’re clear, when you say, “I don’t train people to do it”, you don’t mean, “I train people not to do it”, you mean you just leave it to them? A. I train -- I train people not to do it, and if they’re uncomfortable in any situation where it’s excessive water, they report it. If they feel comfortable in carrying out, they do so at their own risk, but they have to take extra care. Q. So, sorry, now I’m again confused because you said you train people not to do it. A. I train people not to -- I don’t train people to do it. If -- if I was training and I came in with water I would not load on that trailer. Q. So -- all right. So far as you’re concerned, then, if you -- if you were faced with water in the trailer -- A. Yes. Q. -- you would get some one to dry the trailer effectively? A. I would get another loader. But I’m aware that other loaders decide to load where there is water ingress. Q. So your position would be, “I wouldn’t do it, but if you do it, it’s on your own head”? A. Yes. Case Numbers: 3304495/2018 & others 482 Q. And you wouldn’t do it because there’s a health and safety risk? A. Yes. Q. But you let other people incur that health and safety risk? A. Well, I’m not letting them. That’s their choice. I wouldn’t see them doing it. EMPLOYMENT JUDGE HYAMS: But you’re training them not to do it? A. I’m training them not to do it.”

[378]We thought that that evidence could be read only one way: as showing that if a loader loaded a wet trailer then it was done without the approval of the respondent.

[379]We saw that in paragraph 88 of his witness statement, Mr Pilley said this. “Although I cannot confirm how often it happened to Vlastimil or Martin, I confirm that paragraph 6.80 of the EVJDs is accurate. Where an Operative thought there may be a risk of slipping when operating the MHE, he could choose to load the UODs by hand.”

[380]That was unimpressive evidence also: it was not to the effect that the respondent approved of a loader loading UODs by hand where there was “a risk of slipping when operating the MHE”. It was also expressly to the effect that he had not see either Mr Macko or Mr Hornak do that.

[381]There was in the SSOW at D1/3/17 no reference to loading cages by hand. Rather, there were references only to loading using MHE. So, for example, at the bottom of column 6, this was said. “Loaders must never ‘power-load’ (filling a trailer with un-strapped UODs) before strapping. They must load one truck load of UODs at a time, position them correctly, strap them and then exit the trailer to collect further UODs.”

[382]In the next column, this was said. “When using a four (standard) cage loading truck it may be necessary to first manually reposition the last UODs (that are closest to the racking end of the bay) into the middle of the bay. This is in order to safely manoeuvre this longer truck without having to travel too closely to the racking.”

[383]That passage (the impact of which was not clear to us) indicated to us (although we could not be sure about this) that even if there were any manual repositioning of UODs, then they were still loaded using a LLOP.

[384]Paragraphs 39-41 of the witness statement of Mr Hornak went into some detail about the extent to which he would load UODs by hand. Read carefully, what was said in those paragraphs did not support very strongly the proposition that Mr Hornak did in fact load anything by hand, at least by himself, despite the second sentence of paragraph 39. Even the support provided by Mr Pilley in paragraph 89 of his witness Case Numbers: 3304495/2018 & others 483 statement for the proposition stated in paragraph 6.86 of the EVJD for Mr Hornak that the latter would be given support in the form of an additional colleague to load a trailer “around once a week”, was not related to the trailer being wet.

[385]We could not see in any part of the training materials before us any suggestion that a loader could load a trailer which was wet inside.

[386]It occurred to us that there might be some evidence before us about the possibility of a dekitter leaving a trailer with water on the floor. We saw that Mr Pustula’s work involved the task of dekitting as such, i.e. and not as an alleged part of the work of loading. We saw that in paragraphs 6.294-6.298 of the EVJD for Mr Pustula as it stood at the time of closing submissions, this was said. “Water and Fluid Spillages 6.294 The job holder also ensured it was safe for him to start Dekitting by checking the floor of the Trailer for any rainwater or other spillages, whether as a result of:(a) items of Stock falling from UODs etc.;

(b) the Trailer’s exposure to adverse weather conditions during unloading; or

(c) moisture dripping from one of the Refrigeration Units positioned within the Trailer (10, 12 and 13 metre Trailers contained 3 separate Refrigeration Units). 6.295 Water ingress and/or spillages were an issue with roughly 25% of the Trailers arriving at the DC. If left unaddressed, this could cause the job holder to lose control of his MHE as a result of it slipping on the damp surface, potentially leading to damage to the MHE and other equipment, as well as injury to the job holder. The job holder experienced his MHE slipping once or twice a year. 6.296 During periods of wet weather, the number of Trailers affected by water ingress was significantly higher i.e., it could affect every Trailer arriving into the DC on that day. Cold and damp conditions also increased the risk of ice (including black ice) forming in and around the Bays, creating a significant slip hazard for the job holder. 6.297 The job holder also checked the condition of the Dock Leveller, which may also have been exposed to water or dampness from previous loads, or ambient weather conditions from outside exposure. 6.298 In both instances, the job holder decided whether it was safe for him to continue or whether it was necessary for the hygiene team to address the issue(s) instead. If so, he reported it to the Loading Desk who called for the hygiene team, something the job holder did on average once a shift.” Case Numbers: 3304495/2018 & others 484

[387]That passage suggested strongly that the dekitter would not leave a trailer with water on its floor. It also supported the proposition that if a trailer was unsafe because there was spillage on its floor, then it would not be dekitted without first being dealt with by the hygiene team.

[388]We saw that on the final page of the personnel file for Mr Pratt (D1/6/1039), there was an undated page headed “Night shift loading safety briefing”, which Mr Pratt had signed to say that he had “read and understood the information above”. That information was so far as relevant as follows. “Dear colleague Recently we have had a spate of accidents whilst colleagues are operating on the loading operation and in particular on the back of trailers, in almost every occasion when a thorough investigation has taken place it has been found that colleagues have not followed their training and strictly observed the SSOW. Therefore it is of paramount importance that we as a team ensure that these processes are followed at all times by everyone that operates within the loading operation. There are some key tasks that absolutely have to be observed to ensure that colleagues operate safely and avoid unnecessary injuries. To this end we need to continue to brief the following to everyone to ensure that these disciplines are ingrained and adhered to by everyone.• Check that the trailer is dry, clean and tidy and free of debris. ...

• Most importantly, always follow your training and the SSOW.”

[389]In all of the circumstances, we concluded that if a trailer was wet inside, then it was either safe to load or it was not: there was no half-way house in which the loader could safely load cages by hand. In fact, we rather doubted that a loader would willingly load cages by hand when they could have been loaded using MHE, but that merely supported (albeit in only a small way) our conclusion that the respondent did not require loaders to load trailers the floors of which were wet to any material extent (which, if the trailer floor was metal, would mean wet to any extent). We also concluded that if the dock leveller were to any extent wet then it would not be safe to use. Therefore, we concluded, it was not part of the work of a loader to load trailers where the dock leveller was at all wet or the floor of the trailer was to any material extent wet. Paragraph 6.82 of the EVJD for Mr Hornak; more on preparing to load Case Numbers: 3304495/2018 & others 485

[390]As we say in paragraph 368 above, this was said in paragraph 6.82 of the EVJD for all three ambient DC loaders (Mr Hornak, Mr Macko and Mr Davis). “If ever he was waiting for the hygiene team, the job holder continued to prepare for his load (e.g., collecting UODs) or, if asked to do so by the Manager, would carry out a different task.”

[391]The claimants proposed instead: “If ever he was waiting for the hygiene team, the job holder would normally be assigned another load or task by a manager.”

[392]We refer in paragraphs 432-439 below to the extent to which a loader needed to plan a load. We record here that(1) we suspected that the loader would not often need to “collect UODs”, since they were, as we understood it, at least usually left at the loading bay when completed, and

(2) in any event if it could not be known how long the hygiene team would take to arrive and clean out the trailer, then the respondent would be likely simply to give the job-holder another task such as another trailer to load. Having said that, being assigned another task was not a fact which it seemed to us was relevant to the determination of the work of a loader for the purposes of section 65(6) of the EqA 2010. That was because the circumstances in which the task was assigned would not be relevant unless the other task was atypical, in which case the circumstances would be relevant evidence relating to the frequency with which that other task was assigned. There was no suggestion here that any alternative assignment was to do untypical work. Paragraphs 6.84-6.86 of the EVJD for Mr Hornak (and Mr Macko: the EVJD for Mr Davis omitted some of that passage); loading

[393]We have set out paragraph 6.84 of the EVJD for Mr Hornak in paragraph 368 above, as it had to be read along with paragraphs 6.81-6.83 of that EVJD, with which it is set out there. Paragraph 6.84 was agreed. For convenience, we now repeat its terms. “The job holder loaded all other UODs by hand i.e. by pulling/pushing each of them off the lowered forks of the Loading Truck at the edge of the Dock Leveller, before manoeuvring them into the correct load and row position.”

[394]The agreement of the claimants to that paragraph was difficult to understand, given that there would (given the factors to which we refer in particular in paragraphs 224 and 293 above) be no need to push or pull a UOD “off the lowered forks of the Loading Truck at the edge of the Dock Leveller” (i.e. just as much as there would be no need to push a UOD onto the forks of a LLOP). The only pushing or pulling needing to be done would be done in the course of “manoeuvring them into the correct load and row position”, assuming that there was such a correct position, which we rather doubted since we could see a need to do no more than put the Case Numbers: 3304495/2018 & others 486 UODs onto the trailer and then to put them in the best place in practical terms in the manner to which we refer in paragraphs 432-439 below.

[395]In paragraph 6.85 of the EVJD for Mr Hornak, this was said. “During the winter, this would happen on every second load (i.e. 2-3 loads per day); in the summer, it would happen on one load per day.”

[396]Those words were plainly based on the final sentence of paragraph 40 of Mr Hornak’s witness statement, which was in these terms. “On average, however, I can say that I experienced problems with slipping 2-3 times per shift in winter and approximately once per shift in summer, as accurately stated in paragraph 6.85 of the EVJD.”

[397]However, if Mr Hornak experienced problems with slipping (without any stated qualification) when loading UODs in any way then the task of loading in those circumstances was likely to be being done unsafely. That consideration reinforced our view that loading UODs in the wet, in any way, was not part of the work of a loader for the purposes of section 65(6) of the EqA 2010. Paragraphs 6.88 and 6.89 of the EVJD for Mr Hornak; damage to trailer curtains

[398]The words of paragraph 6.88 of the EVJD for Mr Hornak were also in the EVJDs for the other two ambient DC loaders (Mr Davis and Mr Macko). (For the sake of simplicity, in what follows, unless we state otherwise, any reference to something in the EVJD for Mr Hornak about loading is to be read as applying to words to the same effect in the EVJDs for both of those other loaders.)

[399]It appeared from what was said in cross-examination of Mr Rogers on day 21, as recorded at pages 75-78 of the transcript for that day, that the only relevant part of the work of a loader as stated in paragraph 6.88 of the EVJD for Mr Hornak was as claimed by the claimants. That was that Mr Hornak “was trained to report any damage or tear [to either of the canvas curtains on each side of the trailer] which was 2 inches or more”. So, it was not part of a loader’s work, as claimed paragraph 6.88 of the EVJD for Mr Hornak, to ‘[use] his experience to assess whether any damage (ignoring any minor tearing of 2” or less) was serious enough that it could, in his view, present a risk to the security of the load whilst on the public highway.’

[400]On that basis, the assertion that there was any element of judgment in the matter for the loader to exercise was wrong, and that is what we concluded. Case Numbers: 3304495/2018 & others 487

[401]The claimants agreed the next paragraph of the EVJD for Mr Hornak, i.e. paragraph 6.89 (the equivalent paragraph in the EVJD for Mr Macko differed only in regard to the frequency of the event), which was in these terms. “Approximately once a month, the job holder reported a tear or damage to the Loading Manager who would also examine the Trailer and decide whether the Trailer was safe or should be taken off the road pending repair. Where that happened, the job holder would be allocated to another load or to partner with another Loader to help complete his load.”

[402]However, the cross-examination of Mr Rogers (interspersed with some questions from EJ Hyams) as recorded on pages 74-77 of the transcript of day 21 showed that the real reason for the canvas curtain on the side of a trailer was to protect the contents from the elements: not to stop something from falling out, although the curtain might stop something loose from falling out. So, the reason for identifying and reporting curtain tears of more than two inches in length was the protection of the respondent’s products, not safety. Thus in this respect also, the respondent’s case was overstated. Whether the content of paragraph 6.89 of the EVJD for Mr Hornak stated anything that we needed to take into account was, however, another matter. We failed to see how the content of that paragraph stated anything more by way of the demands of the work of a loader than paragraph 6.88, which was explicitly to be alert to tears of more than two inches in length, and (since there was no suggestion that a loader could repair them) implicitly to report them. Paragraph 6.92 of the EVJD for Mr Hornak; internal trailer straps

[403]In column 4 of the SSOW at D9/222, concerning “Loading – Strap 2000”, this was said. “Before loading commences, the Loader should ensure that all straps are stowed away in the correct storage position to prevent MHE/cages from travelling over and damaging them on the trailer floor. Box trailer straps are hung by the strap’s ratchet handle onto the stowage hook. Curtain sided trailer straps are hung by attaching the hook at the end of the strap to the upper hanging ring.”

[404]Paragraph 6.92 of the EVJD (as proposed, that is, by the respondent) was as follows. “Having replaced any damaged straps – which normally took about 10 minutes to complete – the job holder checked that all straps were stowed safely in the correct position along the side of the Trailer to prevent the Loading Truck or any UODs becoming tangled in a strap and falling over, potentially causing damage or injury, or causing damage to the strap itself.”

[405]The claimants proposed this text instead. “Having replaced any damaged straps – which normally took about 10 minutes to complete – the job holder checked that all straps were stowed in the correct Case Numbers: 3304495/2018 & others 488 position along the side of the Trailer to prevent the Loading Truck or any UODs becoming tangled in a strap and falling over.”

[406]Not even that text was apt, in our view. That is for the following reasons. If leaving the straps out had led to a realistic risk of a LLOP, for example, or any other MHE, or a UOD, becoming entangled in the strap and falling over, then we would have expected that to be stated in the SSOW at D9/222. In any event, the relevant part of the work of a loader was to “ensure that all straps are stowed away in the correct storage position”. If the purpose needed to be stated, then it was in our judgment as stated in the first sentence of the extract from D9/222 which we have set out in paragraph 403 above, and only as so stated. Paragraph 6.94 of the EVJD for Mr Hornak, concerning dekitting in general

[407]While we have already (in paragraph 333 above) said something which shows that statements such as that which was in paragraph 6.94 of the EVJD for Mr Hornak in our judgment added nothing material, we refer to that paragraph here not only to illustrate that general proposition but also because the claimants proposed some alternative words for it which we regarded as also unnecessary. The text of paragraph 6.94 of the EVJD for Mr Hornak was this. “When dekitting Trailers, it was part of the job holder’s work to carry out that activity in such a way as to avoid the recognised hazards associated with it and the risks arising from those hazards – see paragraph 10.51 for further details regarding those hazards and the associated risks.”

[408]That was unnecessarily said primarily because it was obviously not a part of the work of a loader for the purposes of section 65(6) of the EqA 2010 to do dekitting unsafely. In addition, the words of paragraph 6.94 of the EVJD for Mr Hornak were too general to be of any use to us or the IEs. The claimants proposed some alternative words, which in our view also added nothing relevant to the determination either of the work of a loader or the conditions in which he did it, if only because they also were too general to be of any use to the IEs or us. Those words were as follows. “When dekitting trailers the job holder followed his training and if concerned about any issues reported them to a manager.” Paragraph 6.96 of the EVJD for Mr Hornak

[409]The words of paragraph 6.96 of the EVJD for Mr Hornak as proposed by the respondent by the time of closing submissions were these. “In the large majority of Trailers the Dekitting had not been completed before the job holder arrived at the Trailer (Photo T27). Where that was the case, the job holder made the decision to remove the Cages himself rather than waiting for a Dekitter to attend the Trailer, because he knew it was more time efficient for him Case Numbers: 3304495/2018 & others 489 to do the Dekitting himself and by doing so, avoid any delay to the load whilst waiting for a Dekitter to arrive. It took the job holder on average 10 - 20 minutes to dekit a Trailer.”

[410]The oddity of the situation was that that paragraph was preceded by this one. “During the period the job holder was deployed on Loading duties, the Trailers should have been Dekitted i.e., all empty Cages and Pallets packed into the Trailer to be returned to the DCs (having been used in earlier deliveries to Stores) should have been removed from the Trailer, and both the Bay and Trailer doors left open to enable loading to start.”

[411]The proposition that “the large majority of” trailers were only partly dekitted before they were assigned to be loaded was difficult to accept, if only because it would suggest that the respondent’s dekitting arrangements were seriously defective. Mr Pustula’s EVJD contained this passage about the allocation of work to him as a dekitter. “Task Allocation 6.265 When deployed on Dekitting, the job holder walked to the Loading Desk so that the Manager could identify the loading Bay(s) at which there were Trailers that needed Dekitting i.e., which contained empty Cages and Dollies (roughly 80%/20% respectively) (and occasionally) Pallets returned from stores. 6.266 The job holder was instructed (verbally by the Manager) to dekit one Trailer at a time, returning to the Loading Desk on completion of all those Trailers for further instruction i.e., either with the location of further Trailers requiring Dekitting or alternatively, if all Dekitting had been completed, being deployed to another activity. 6.267 The average time required to dekit a Trailer was 15 - 20 minutes.”

[412]Dekitting was dealt with in relation to ambient DCs by D9/379, to which we refer in paragraph 88.2 above. If a trailer had been dekitted in accordance with that training document, then the trailer would have been completely cleared of cages and pallets and it would have been swept clean.

[413]But if it were not so cleared and clean, then what did the work asserted to be required as stated in paragraph 6.96 of the EVJD for Mr Hornak add to the demands of the work of a loader? As described in D9/379, there was a need to take out empty cages and pallets. In one place (just under the heading “Removing Cages” on page 3), it was said that the cages would need to be “[pulled] into position and then [pushed] off the trailer, five at a time”. At D9/402/3 (to which we refer in paragraph 88.1 above), it was said that “[r]emoving cages is done by hand,” and that that was done by pulling Case Numbers: 3304495/2018 & others 490 cages together in groups of five and then pushing them off the trailer and onto the loading bay. However, lower down the page on D9/379/3, it was said that “Mechanical handling equipment may be used to unload empty cages from single deck trailers, however the maximum number of empty cages that should be removed in this manner is 10.”

[414]In any event,(1) the work of removing cages from trailers was at least similar to that of loading the trailers and

(2) if the loader did the work of dekitting, then it was as shown by D9/379, and there was no need for the detailed statement of the work in paragraphs 6.96-6.103 of the EVJD for Mr Hornak, unless there was something missing from D9/379.

[415]We saw that in paragraph 6.99 of the EVJD for Mr Hornak, this was said. “Cages were stacked according to the colour of their base i.e. blue Cages were stacked together, black Cages were stacked together and red Cages were stacked together. Only once stacked was it safe for the job holder to insert the forks of his Loading Truck underneath them, before lifting and transporting them over the Dock Leveller and onto the Bay.”

[416]That implied that the loader would need to stack the cages. However, in the preceding (and in fact agreed) paragraph, this was said. “When Dekitting, the job holder worked mostly inside the rear of the Trailer. First, he removed the strapping used to secure the Cages (the Cages having been folded into a closed position and organised into nests according to the colour of their base) inside the Trailer during transit.”

[417]The policy and procedure documents to which we refer in paragraph 88.3 above (D9/577 and D9/618) referred in row 24 of the procedure section (at page 6 and page 5 respectively) to manually moving cages “one nest at a time” and then placing them “on the bay”. At the top of the next page, in row 27, it was said that the “loose equipment and returns” should be moved “using MHE from the bay to the appropriate storage area”, and that empty cages should be loaded “two nests” at a time and then moved “to the nearest empty cage storage area”. There was no suggestion there (or anywhere else in the training materials before us) that the dekitter had to separate out the cages into their different types. We suspected that that was because only the same kind of cage could be nested together, so that nested cages were already sorted.

[418]The next step, stated in row 28 on pages 7 and 6 respectively of D9/577 and D9/618, was this: “Continue to unload loose equipment and returns until the trailer is empty – following steps 22 to 27”. Case Numbers: 3304495/2018 & others 491

[419]Indeed, the whole of that document suggested very strongly that if a dekitter started the job of dekitting, then it would be finished as stated both in that document and in D9/379. In addition, there was no suggestion in the part of the document of which we have set out part in paragraph 361 above (D9/374) that a trailer might not have been dekitted. Indeed, at the bottom of page 2 of that document (i.e. D9/374/2) this was said. “Trailer Details Trailers are generally allocated to loads before you start loading. If you key in incorrect trailer details on your arm-mounted terminal, you will see a ‘Wrong Trailer’ message on your screen.”

[420]That suggested that the respondent’s warehouse staff would not allocate a trailer for loading until it had been fully dekitted. We did not see the word “generally” in that passage as detracting from that suggestion.

[421]It was in any event in our view highly unlikely that a trailer would have been only partly dekitted. We therefore looked at the EVJDs for the fresh DC comparators, to see what, if anything, was said in them about dekitting when loading (as opposed to dekitting as a specific, separate, task). We saw that only Mr Pratt referred to the possible need to dekit a partly-dekitted trailer. That was in the following passage of the EVJD for him. “6.88 During the period the job holder was deployed on loading duties, the Trailers should have been dekitted i.e., all empty Cages and Dollies packed into the Trailer to be returned to the DC (having been used in earlier deliveries to stores) should have been removed from the Trailer, and both the Bay and Trailer doors left open to enable loading to start. 6.89 In most cases (80%), the Dekitting had been completed before the job holder arrived at the Trailer. However, if not, the job holder assessed whether it was quicker to remove them himself. 6.90 The job holder usually did that where there were no more than 3 stacks i.e. a maximum of approximately 24 to 30 Cages (or the equivalent volume in Dollies, Trays, MUs etc.), but where there was more than 3 stacks, the job holder reported the issue to the Loading Desk to ask that a Dekitter be called to clear the Trailer. 6.91 When Dekitting, the job holder worked mostly inside the rear of the Trailer. First, he removed the strapping used to secure the Cages (the Cages having been folded into a closed position and organised into nests according to the colour of their base) inside the Trailer during transit. Case Numbers: 3304495/2018 & others 492 6.92 Cages were stacked according to the colour of their base (i.e., blue Cages were stacked together, black Cages were stacked together and red Cages were stacked together) before the job holder placed them onto the forks of his Loading Truck and removed them from the Trailer.”

[422]We saw, incidentally, that that passage might be regarded as being unclear since it did not say in terms whether or not Mr Pustula himself had to do anything to ensure that cages were stacked “according to the colour of their base”. However, if it were read (as it could be) as a statement they had already been so stacked then it supported our suspicion that paragraph 6.99 of the EVJD for Mr Hornak, which we have set out in paragraph 415 above, was misleading in so far as it suggested that Mr Hornak (or any other loader) might have needed to sort cages before removing them from a trailer.

[423]There were two other salient features of the passage from the EVJD for Mr Pratt which we have set out in paragraph 421 above which bear mentioning here. The first is that it was odd that it was suggested in that passage that there might be a need for “a Dekitter [to] be called to clear the Trailer”. That was because in the asserted circumstances, there would already have been a dekitter, who would, in those circumstances, have left the trailer only partly dekitted. The second is that, contrary to the claim(1) made in paragraph 6.96 of the EVJD for Mr Hornak (which we have set out in paragraph 409 above),

(2) repeated in the same numbered paragraph of the EVJD for Mr Macko, and

(3) stated slightly less emphatically in paragraph 6.95 of the EVJD for Mr Davis, that in the “large majority” or (as per Mr Davis’s EVJD) simply “the majority of cases”, “the Dekitting had not been completed” (or, in the case of Mr Davis: “fully completed”) by the time that the comparator arrived at the trailer, in the case of the fresh DC at which Mr Pratt worked, the dekitting would be fully completed at least 80% of the time.

[424]The cross-examination of Mr Pratt (on pages 116-117 of the transcript of day 29) was about paragraph 47 of his first witness statement, and in substance he simply confirmed what he said in that statement. That paragraph was in these terms. “The Trailer ordinarily should have already been Dekitted ready for Loading but sometimes (about 20% of the time) there were still some empty Cages that needed to be dealt with. This happened, for example, if I had arrived at the Trailer for Loading before the Dekitters had finished.”

[425]So, that passage gave us a clue to the situation in which a trailer might not have been fully dekitted: where the dekitters had not yet finished dekitting it. But that possibility was difficult to contemplate: why, after all, might a dekitter leave the task only partly completed, when it took (as stated in paragraph 6.96 of the EVJD for Mr Hornak, which we have set out in paragraph 409 above, and paragraph 6.267 of the EVJD for Mr Pustula, which we have set out in paragraph 411 above) only 15-20 minutes to do in total? Certainly, the only other document relating to dekitting before us, which related to fresh DCs, to which we refer in paragraph 88.1 above (D9/402) Case Numbers: 3304495/2018 & others 493 only added to the evidence suggesting that that would not have occurred. That was because at the top of D9/402/4, this was said. “Empty Trailer Once the trailer is empty, hang any remaining trailer straps on the inside of the trailer. Make sure they are secure by clipping them at the top and bottom of the trailer. The trailer will then need to be swept out. You will need to collect a broom and dust mask from the bay storage unit so it can be cleaned. It will then be ready to be loaded with units of delivery for the next delivery. If you are not required to load the trailer, you will need to return the Mechanical Handling Equipment to its correct parking area.”

[426]We saw too that at row number 19 on page 3 of D9/146, to which we refer in paragraph 85.1 above and which was the June 2012 version of the document concerning the policy and procedure for paperless loading, this was said. “Check the floor is clean and free of any debris. The floor must be cleaned before loading commences. Report to any defect to the Warehouse Manager.”

[427]That document was updated in April 2013, the updated version being at D9/149/2-14. In row 27 at D9/149/6, this was said. “Check the floor is clean and free of any debris:• If the floor needs cleaning inform the warehouse manager who will arrange the cleaning staff to attend or defect the trailer”.

[428]The final version of that document before us, dated “2018-14”, had similar words in row 30, at D9/141/7, namely: “Check the floor is clean and free of any debris:• If the floor needs cleaning inform the Warehouse Service Co-ordinator who will arrange the cleaning staff to attend or defect the trailer”.

[429]Finally, before coming to a firm conclusion on the evidence relating to a loader doing a partial dekitting job, we reminded ourselves of what we had said in paragraph 87 above. There, we set out the following extract from the “Trainers Note” at D9/357/3: “Inform your trainee(s) that on occasions they may be required to ask a team member to dekit their own trailer. In doing this they must ensure that the correct job card has been swiped, allowing the team member to move between tasks.” Case Numbers: 3304495/2018 & others 494

[430]That was entirely consistent with the final words in the extract set out in paragraph 425 above: a loader might be given the task of(1) dekitting a trailer, and then, having done that,

(2) loading it.

[431]In all of the circumstances, we concluded that it was not normally part of the job of a loader who was not assigned specifically to dekit trailers, to dekit a trailer unless he was given that task to do in relation to the trailer which he was about to load. That meant that there was normally no discretion to exercise in regard to dekitting when the loader got to the trailer. The only possible exceptions to that rule were where(1) a trailer had been inadvertently omitted from the dekitting regime, or

(2) a dekitter had been called away mid-dekit, and the loader’s manager had failed to “ensure that the correct job card [had] been swiped [for the loader], allowing the [loader] to move between tasks”. If, however, either of those things occurred, then one would have expected the loader either to (1) inform his manager that a dekitter was required, or (2) get authorisation for dekitting the trailer himself, in the process getting the “correct job card ... swiped”. But even then, there was no question of the loader being required as part of his job to decide whether or not to unload the un-dekitted trailer without authorisation from his manager to dekit it. Load planning: paragraphs 6.107-6.162 of the EVJD for Mr Hornak

[432]We accepted that there was a need to plan the positioning of UODs on the trailer onto which they were to be loaded. The planning of a load in an ambient DC was catered for by what was said in the following parts of the training materials before us:432.1 the final three columns of D1/3/17 (to which we refer in paragraphs 70 and 71 above, as well as elsewhere);

432.2 pages 3 and 4 of D9/374, from the heading “Trailer Weight Distribution” on page 3 up to the end of page 4 (to which we refer in paragraphs 80 and 81 above);

432.3 rows 27 and 28 of the policy and procedure document concerning loading on page 4 of D9/146 (to which we refer in paragraph 85.1 above);

432.4 rows 36 and 37 of the updated version of that document at D9/149/7 (row 36 being a little more informative than row 27 at D9/146/4);

432.5 rows 40 and 41 of the further updated version of that document at D9/141/8- 9; and

432.6 pages 4-5 of D9/382, to which we refer in paragraph 92.8 above.

[433]Reference was made in a number of places in those training materials to the “Composite Loader Assistance System User guide”, but that document was not in the bundle before us. Case Numbers: 3304495/2018 & others 495

[434]It was submitted by the claimants that the detail in paragraphs 6.107-6.162 of the EVJD for Mr Hornak was an over-complication and an exaggeration of the difficulty of planning a load. We agreed. We have set out in paragraph 80 above the key passage in the key document stating how loading should be planned. Immediately below that passage, i.e. in the middle of D9/374/3, the number of cages which could be fitted into the six kinds of trailer (we use that term to refer to the loading area of any vehicle, including rigid ones) used by the respondent for loading at the time when that document was written, was stated. The biggest single-deck trailer was a 13m trailer, and it could take a maximum of 45 cages. The smallest trailer was on a “rigid” vehicle, and its maximum capacity was 24 cages. In the case of the latter vehicle, there would be a need for “[a]t least six to nine light cages ... on both the front and rear of the trailer”. That left room for a maximum of 12 heavy cages or other heavy UODs in the middle of a rigid vehicle, and the planning of that load will, it seemed to us, have been reasonably straightforward.

[435]In the case of a 13m trailer, if there were nine light cages at the front and nine light cages at the rear of the trailer, there would still have been room for 27 heavy cages in the middle. The loading of a 13m trailer will therefore have been less easy to plan. However, the labels on the cages stated whether the cage was light, medium or heavy in weight. That was clear from D9/374/9, where were these two questions and answers. ‘7. Where should light cages be placed on the trailer? - At the front and rear. 8. Where should you put any pallets? - You should try to put them at the mid point of the trailer secured by cages. - Unit of Delivery labels display a weight indicator on them (light, medium or heavy), loaders can use this to aid their identification of “light” cages to load at the front of the trailer.’

[436]At D9/374/4, this was said under the heading “Loading Pallets”. “Pallets should be loaded at least 9 cages (3 rows) back into the trailer so that they can be safely unloaded onto a tail-lift using a pallet truck by the Driver at a tail-lift delivery store, without the Driver having to walk onto the tail-lift to conduct the turn. The only exception should be for unusually shaped pallets (for example a pallet with a single flat-screen TV on it) which may need to be loaded last in order to maintain overall load integrity.” Case Numbers: 3304495/2018 & others 496

[437]Those were not all of the relevant parts of the relevant documents, but they were the most important ones from the point of view of determining what were the demands of the work of planning a load. We have not set out in full the contents of pages 3-4 of D9/374, but all of that section was relevant.

[438]Taking those documents and in particular the parts of them to which we refer in the preceding paragraphs above into account, it seemed to us to be clear that a loader was not required to exercise much judgment in the planning of a load. He would know from the labels on the UODs whether they were heavy, medium or light. He would know that the heavy items had to be in the middle of the load, where pallets also needed to be placed. He would also know that there needed to be at least six to nine light cages at the front and rear of the trailer.

[439]That did not mean that the loader was not required to exercise care: it was clear that the loader had to be particularly careful to ensure that the weight of the load was distributed evenly, with the heaviest part of the load in the middle of the trailer.

[440]In the light of those materials and conclusions, we made the following findings about the disputed details asserted in paragraphs 6.107-6.162 of the EVJD for Mr Hornak. Paragraph 6.109 of the EVJD for Mr Hornak; loader’s responsibility (or otherwise) for the weight of a loaded trailer

[441]Paragraph 6.109 of the EVJD for Mr Hornak was in these terms. “Whilst the job holder did not know the maximum weight capacity of the Trailer (in tonnes) the job holder used his experience to assess whether the combined weight of UODs allocated to his load was such that it risked exceeding the maximum weight capacity of the relevant Trailer.”

[442]We did not accept that that paragraph was an accurate statement of what a loader was required to do. The loader was, rather, simply required to load the UODs which were identified on his AMC. We saw no requirement in the training materials for the loader to consider whether the intended load might be too heavy for the intended trailer. If the loader thought that that might be the case then the question whether something should be done to change the situation was (we concluded, given all of the training materials and the evidence to which we refer below about this) one for the loader’s manager and not the loader. If the loader raised the question with his line manager, then he was doing his job well. Did that add anything material to the demands of the job for the purposes of section 65(6) of the EqA 2010? We were not sure, and decided that if the IEs thought that it was relevant, then they could take it into account. Paragraphs 6.110 and 6.111 of the EVJD for Mr Hornak; knowledge of the approximate weights of UODs and the need to maximise “load efficiency” by “condensing” Case Numbers: 3304495/2018 & others 497

[443]Paragraphs 6.110 and 6.111 of the EVJD for Mr Hornak were superfluous in the light of(1) the question and answer from D9/374/9 set out in paragraph 435 above and

(2) the fact that condensing was dealt with separately in the EVJD (as shown from what we say in paragraph 471 onwards below). We refer further to the content of paragraph 6.111 of the EVJD for Mr Hornak in paragraphs 577-579 below. Paragraph 6.112 of the EVJD for Mr Hornak; the claim that Mr Hornak swapped UODs between loads

[444]We saw no evidence in the training materials before us to justify the assertion in paragraph 6.112 of the EVJD for Mr Hornak that a loader might swap UODs between loads. We could not see how that could work, in any event, unless there were two vehicles going to the same store on the same day. (In fact, what was said in paragraph 6.276 of that EVJD, to which we return in paragraph 518 below, showed that it would be possible only if there were another vehicle going to the same destination before the end of the loader’s shift.) Mr Rogers accepted in crossexamination (in the passage recorded at pages 17-19 of the transcript of day 20) that “swapping UODs” had “never been in the training programme”. He said that at line 15 on page 18. He then said (in his next sentence) that it was “just an operational function that becomes part of the role”. In the rest of that part of the crossexamination of Mr Rogers, no suggestion was made that the AMC had a function which permitted changing a UOD from one load to another. There was, however, a possibility of using the AMC to move a product from one UOD to another, but that was where the UOD was part of the same load. That possibility was stated and described in the document relating to fresh DCs at D9/395, to which we refer in paragraph 92.5 above. At D5/2/113, there was a print-out of a page of an AMC user guide (it was page 4-21) which referred to moving a UOD, but only for a marshaller. The entry was in these terms. ‘4.14 MOVE UOD When a Marshaller wants to change the current location of one or several UODs to a different Warehouse Point, he selects the “Move UOD” function from the Marshalling Special Functions Menu. When the Marshaller selects this function, the screen described in section 3.14, “MOVE UOD” is displayed.’

[445]The section starting “3.14 MOVE UOD” was at D5/2/72-75. That was stated specifically to apply to “[moving] UODs from one warehouse point to another”. We could not see how that could be done by a loader without authorisation from a manager. That was accepted by Mr Davis in cross-examination on day 24, as recorded at pages 66-69 of the transcript of that day. In addition, at page 69, line 7, Mr Jones KC put it to Mr Davis that that could only happen where there was another load headed for the same store, and Mr Davis said that that was correct. He also agreed, as recorded on page 68, that “a trailer would only be too heavy where something unusual had happened where something had been left off an earlier load Case Numbers: 3304495/2018 & others 498 and you’d been asked to include it or a heavier ... UOD had been identified as something that needed to be prioritise[d] and inserted into a load”.

[446]That was in accordance with our understanding from the evidence before us, which was that the respondent’s computer system knew what the combined weight of the intended load of a vehicle was, so that no vehicle would have been overloaded if it had been loaded only with those things which were intended by the system to be loaded.

[447]We therefore concluded that the factual assertion of the claimants about what was said in paragraph 6.112 of the EVJD was correct, and that the content proposed by the respondent for that paragraph was misleading and inaccurate in so far as it suggested that the job-holder was authorised himself to decide whether or not a UOD should be moved to another load. Thus, as far as moving a UOD to another load was concerned, “[a]lthough the job holder was not trained to swap UODs between loads, he would on occasion do this with the agreement of the [relevant] manager.” Paragraphs 6.115-6.117 of the EVJD for Mr Hornak; more about moving UODs

[448]We agreed with the claimants, if and to the extent that they submitted that the content of paragraphs 6.115-6.117 of the EVJD for Mr Hornak was a repetition of other parts of the EVJD. That was in fact self-evident, but by way of explanation we record here that the cross-examination of Mr Evans starting at line 17 on page 21 of the transcript of day 20 showed that he agreed that a UOD could be moved from a load only by agreement with a manager. That was sufficient for the purposes of the IEs and us in relation to the movement of a UOD. (We observe here that the fact that Mr Evans was cross-examined on that issue by reference to paragraph 6.279 of the EVJD for Mr Davis was a result of the repetition and over-complication of the EVJDs for the comparators. That issue of movement of a UOD should have been dealt with in only one place, and, assuming for this purpose that they were relevant, the number of reasons for asking for the agreement of a manager to such a move should have been grouped together.) Paragraphs 6.119-6.122 of the EVJD for Mr Hornak; initial steps in the loading process, including topping, shrink-wrapping and condensing

[449]We thought that the claimants’ proposed words for paragraphs 6.119-6.122 of the EVJD for Mr Hornak were apt, or accurate. The words which the respondent proposed for the paragraphs were, in contrast, in our judgment inaccurate in so far as they suggested, or implied, that the loader would make a decision about whether or not a particular UOD would be removed from the load. That, it was clear from the answers given by Mr Evans to questions asked of him as recorded in the passage from line 10 on page 26 to line 7 on page 36 of the transcript of day 20, was not a matter of discretion for the loader, but for the loader’s manager. Case Numbers: 3304495/2018 & others 499 Paragraph 6.123 of the EVJD for Mr Hornak; the kinds of UODs loaded over a 5-day period

[450]Paragraph 6.123 of the EVJD for Mr Hornak contained an assertion about the mix of UODs loaded over a 5-day period. We thought that the content of that paragraph said nothing material. Thus, while the claimants opposed it on the basis that it was not based on any evidence, and we happened to agree with that proposition, we concluded that the paragraph was simply for current purposes meaningless, and should therefore be ignored. Paragraph 6.125 of the EVJD for Mr Hornak; the kinds of UODs used during the relevant period

[451]Similarly, we failed to see why it was necessary for the kinds of UODs used by the respondent during the relevant period to be the subject of a finding of fact made by us for the purposes of determining the work and its demands of a comparator within the meaning of section 65(6) of the EqA 2010. Paragraphs 6.129 and 6.130 of the EVJD for Mr Hornak; the number and mix of cages that could go in a row

[452]We thought that the precise mix of cages that could be put in a row on a trailer was at best of only marginal relevance and that the only relevant issue was the difficulty of fitting them in. That difficulty was in our view sufficiently stated by the words of paragraphs 6.129 and 6.130 of the EVJD for Mr Hornak which, we discovered from the respondent’s written closing submissions (contrary to what was in the claimants’ written closing submissions) were agreed in full. We have set out paragraph 6.130 in paragraph 509 below, for reasons which are stated in that paragraph. Paragraph 6.133 of the EVJD for Mr Hornak; how pallets could be loaded

[453]It was sufficient for the IEs and us to know that two pallets could be loaded side-byside in “landscape” position (looking at them from the front) on a trailer. The words which the claimants opposed in paragraph 6.133 were (we agreed with the claimants) superfluous, and a repetition of the contentions which were made in paragraphs 6.110 and 6.111 of the EVJD for Mr Hornak, with which we deal in paragraph 443 above. Paragraph 6:135 of the EVJD for Mr Hornak; what to put on a row with only one pallet in it

[454]We could not see that it would be necessary for the IEs to know (and therefore relevant) that if a loader had an odd number of pallets to load, then the loader would have to load (for example) a heavy cage next to it. That was one of many details which we thought it could not possibly assist the IEs or us to know. It could not, as far as we could see, affect the assessment of the demands of the job. Case Numbers: 3304495/2018 & others 500 Paragraph 6:136 of the EVJD for Mr Hornak; the “multitude of potential combinations”

[455]Paragraph 6.136 of the EVJD for Mr Hornak was about the multitude of combinations that were possible when loading. The word “multitude” was too general to be of assistance, but then again so was the whole of paragraph 6.136. Paragraph 6.137 of the EVJD for Mr Hornak; the impact of the respondent’s guidance

[456]We agreed with the claimants’ description of the impact of the respondent’s guidance on “the different ways in which UODs could safely be loaded onto Trailers”, preferring it to the respondent’s proposed words for paragraph 6.137 of the EVJD for Mr Hornak. Thus, we agreed with the claimants that if a loader was uncertain about how to load something then he was obliged to “seek advice from a manager” rather than “decide – using their own judgment and discretion” how to do it. Paragraphs 6.138 and 6.139 of the EVJD for Mr Hornak; recognising common UOD combinations and a claimed requirement for mental mathematics

[457]Paragraphs 6.138 and 6.139 of the EVJD for Mr Hornak had to be read together, and the combination of them was one of the most hotly-contested factual issues relating to the work of the comparators. The respondent’s proposed words for paragraphs 6.138 and 6.139 were as follows. “6.138 Based on his experience, the job holder was able to recognise some of the UOD combinations more routinely used and recall the ways in which those combinations could normally be loaded into the respective Trailers (depending on the size of each Trailer).” 6.139 In all other cases [that is to say, not routine ones], the job holder’s initial load planning assessment required him to use mental maths to work out for himself the most logical way to position the UODs within the Trailer. This was a series of additions and multiplications based on the number of each UOD type allocated to the load and how many of them could fit within the relevant Trailer size and within a single row and/or be mixed with other UOD types.”

[458]The claimants asserted that that was an exaggeration, and we agreed with the claimants in that regard. The planning of a load was shown by the documents and considerations to which we refer in paragraphs 432-439 above. The claimants’ proposed words for paragraphs 6.138 and 6.139 (since they asserted that the latter should be deleted altogether) were stated in their closing submissions as replacement words for paragraph 6.138. The claimants submitted that their proposed words “reflect[ed] oral evidence and training materials”. In our view, the training materials spoke for themselves and the claimants’ proposed words were an unnecessary simplification of what was said in the training materials. Case Numbers: 3304495/2018 & others 501

[459]If the IEs require us to make any further finding of fact about the mental processing required of a loader when planning a load, then they should say so in an application under rule 6(3) of the EV Rules. Paragraphs 6.140 and 6.141 of the EVJD for Mr Hornak; the application of the claimed mental mathematics

[460]In paragraph 6.140 of the EVJD for Mr Hornak it was asserted by the respondent that if there were, for example, “35 Cages, 3 Pallets, 4 Dollies, 2 Semi Pallets and 3 MUs”, then the loader would need to use “mental maths to work out the row plan and/or what level of Condensing may be necessary to enable him to get everything into the Trailer”. But that made no sense to us, given that460.1 the respondent’s computer system would have planned the load, so that the only thing that the loader could be required to do is work out what went where, and

460.2 the documents before us relating to condensing, to which we refer in paragraphs 471-473 below, showed that if a loader could not condense any UOD which was at a loading bay and as a result the UOD “had to be left off” the trailer, then the UOD would simply need to be (as stated for example at D9/630/2, row 13) “scanned and moved to the designated Late Cages area at the end of the loading process”.

[461]Paragraph 6.141 of the EVJD for Mr Hornak was expressly stated to be another way of putting paragraph 6.140 of that EVJD. Paragraphs 6.142-6.145 of the EVJD for Mr Hornak; weight distribution

[462]The content of paragraphs 6.142-6.145 of the EVJD for Mr Hornak was contested in part. The content of paragraph 6.142 as proposed by the respondent was this. “It was for the job holder to determine the order in which UODs were loaded on to each Trailer in order to ensure appropriate weight distribution.”

[463]The claimants proposed instead these words. “It was for the job holder to determine the order in which UODs were loaded on to each Trailer taking into account a number of factors including attempting to distribute weight evenly across the trailer .”

[464]We preferred the claimants’ proposed words for paragraph 6.142, since in our view they were a better reflection of the reality of how UODs had to be loaded onto a trailer, given the documents and factors to which we refer in paragraphs 432-439 above. Case Numbers: 3304495/2018 & others 502

[465]Paragraphs 6.143-6.145 of the EVJD for Mr Hornak concerned the weights of UODs. As we say in paragraphs 56-61 of our judgment of 12 July 2023, there was before us no evidential basis for the average weights of UODs. As a result, we agreed with the claimants’ objection to the figure proposed in paragraph 6.145 of the EVJD for Mr Hornak (277kg for the average weight of a cage). In fact, the average weight of a cage seemed to us to be of no real assistance, since it was unlikely to assist the IEs in assessing the demands of a loader. It seemed to us that the weight range was more likely to be relevant. The weight range figures in paragraph 6.144 of the EVJD for Mr Hornak were agreed, and we saw no reason to doubt them. Paragraphs 6.147 and 6.148 of the EVJD for Mr Hornak; loading a 12 or 13 metre trailer

[466]The way in which to load a 12 or 13 metre trailer was the subject of paragraphs 6.147 and 6.148 of the EVJD for Mr Hornak. We could not see why the IEs needed to know what was in those paragraphs, given what was in the documents to which we refer in paragraphs 432-439 above. If there was anything additional arising from the parties’ disagreement about the content of paragraphs 6.147 and 6.148 of the EVJD for Mr Hornak then it was to be found in the proposition of the claimants (read in the light of the approach which they should in our judgment have taken, which is why we have added the words in square brackets) that “[i]f the job holder had any concerns about the load, he would [be obliged to] raise these concerns with a manager.” Even that, though, was in our view obvious. Paragraph 6.149 of the EVJD for Mr Hornak: avoiding overloading the axles

[467]We preferred the claimants’ proposed words for what was required of a loader in regard to the distribution of UODs over the axles of a trailer. That is because it was not possible for a loader to “prevent” an axle being overloaded. Rather the loader could only try to avoid such overloading. Paragraphs 6.151-6.153 of the EVJD for Mr Hornak; placement of UODs

[468]Paragraphs 6.151-6.153 of the EVJD for Mr Hornak were unnecessary given the guidance given in the documents referred to in paragraphs 432-439 above. We say that even though it might be thought that paragraph 6.153 included a helpful statement of the frequency with which the difficulty described in paragraph 6.152 occurred (“on average twice a week”). That was because468.1 the need to cater for different combinations of UODs and the need to follow the guidance in the documents to which we refer in paragraphs 432-439 above led to the inevitable conclusion that there was a need to think about the order in which to place the UODs which the loader’s AMC told him had to be put on a trailer, and Case Numbers: 3304495/2018 & others 503

468.2 the content of 6.152 of the EVJD for Mr Davis (which dealt with the same things as were the subject of paragraph 6.152 of the EVJD for Mr Hornak) as proposed by the respondent by the time of closing submissions was useful because it showed that a loader could depart from the guidance in those documents by loading heavy cages in the front row of a load of a rigid-sided trailer, but only with the agreement of a manager.

[469]Thus, we concluded that all that the IEs and we needed to take into account here was that a loader had to comply with the guidance in the documents to which we refer in paragraphs 432-439 above, and if it was not possible to so then the loader was required to seek guidance from a relevant manager. Paragraphs 6.154-6.162 of the EVJD for Mr Hornak; more on weight distribution

[470]The final paragraphs in this section on load planning, paragraphs 6.154 to 6.162 of the EVJD for Mr Hornak, in our judgment added nothing material. We saw no point in resolving the disputes about them, and we thought that the claimants’ opposition to their content was justified. If the IEs believe that there is a need to resolve any of the disputes in those paragraphs then they can say that to us via rule 6.3 of the EV Rules. Paragraphs 6.164-6.171 of the EVJD for Mr Hornak; condensing UODs

[471]Paragraphs 6.164-6.166 of the EVJD for Mr Hornak added nothing to the content of D9/378, to which we refer in paragraph 73 above. Paragraph 6.167 of that EVJD, where it was said that ‘[w]hen Condensing Cages as part of single store load, the Units could be moved to any available full-size Cage or any Slim Line Cage not already marked as “heavy” on the UOD Label’ was also unnecessary to the extent that it was a statement only of what a loader could not do. However, if and to the extent that it added to the demands of the loader who was condensing by stating that the loader was required to read the label on the destination UOD, we saw that at page 3-73 of the AMC guide for loaders, it was said that if ‘the destination UOD ha[d] been marked by Denver as a “Maximum Weight UOD”, then’ the AMC’s screen would show “Cannot condense into a Maximum Weight UOD!”’. That suggested that there was a failsafe mechanism in place in relation to the weight of the destination UOD where the loader was moving a product, so that the safety of the weight of the destination UOD was not in issue.

[472]Paragraph 6.168 of the EVJD for Mr Hornak was misleading in so far as it suggested that the AMC would be silent if the loader sought to put a product into the wrong UOD (i.e. for the wrong store). In that situation, the AMC would inform the loader of that fact: that was shown by the final box on page 3 of D9/378.

[473]The documents at D9/580 and D9/630, to which we refer in paragraph 17.24 above, were a step-by-step statement of what condensing involved. That statement Case Numbers: 3304495/2018 & others 504 supplemented the process described in D9/378 by stating it in more detail. We return to D9/580 and D9/630 in paragraph 578 below.

[474]As for the wording of paragraph 6.171 of the EVJD for Mr Hornak, we saw that it was the same in the EVJD for Mr Macko, but rather different in the EVJD for Mr Davis, which contained some proposed new words. The claimants opposed those proposed new words on the basis that they were not covered by Mr Davis’ evidence. For the following reasons, we concluded that that the proposed new words did not add anything material in any event.474.1 The task of condensing was in substance the same as the task of re-stacking a cage, which was part of the job of an assembler, so that the job of a loader was to that extent the same as that of an assembler, and that was in our view a fact which it was helpful for the IEs and us to bear in mind.

474.2 The fact that condensing might be required was incontrovertible. The demands on a loader of the requirement to condense were discernible from the documents to which we refer in the three preceding paragraphs above, and apart from the proposed new words for the EVJD for Mr Davis, the evidence in paragraphs numbered 6.171 in the EVJDs for all three of the ambient DC loaders was probably helpful to the IEs and us in that it showed how long a loader might need to spend condensing.

474.3 We could not see how it could assist the IEs to know whether or not the respondent’s proposed additional words were correct or not. That was for the following two reasons.474.3.1 It was not said in the proposed additional words how often “the job holder was allocated a ‘merged load’”. Thus, those proposed additional words stated only a circumstance without giving the IEs or us the kind of information that could assist them and us to assess the impact in practice of a loader being required to deal with a “merged load”.

474.3.2 We could not see a material difference for present purposes between condensing four loads every shift (as stated in paragraph 6.171 of the EVJD for Mr Hornak) and, as asserted in the proposed additional words of paragraph 6.171 of the EVJD for Mr Davis, “as much as every load during peak periods”. That was because of the schematic at H31. Paragraphs 6.172-6.175 of the EVJD for Mr Hornak; multi-store loads

[475]Paragraphs 6.172-6.175 of the EVJD for Mr Hornak, which were under the heading “Multi Store Loads”, needed to be read in the light of the guidance given on page 2 of D9/375, to which we refer in paragraph 82 above. On that page, it was said that Case Numbers: 3304495/2018 & others 505 “Some loads need to be loaded in sequence and for others, the sequence is not important.” The document continued: “This screen has the word ‘MULTI’ at the top right hand of the display.” In fact there was no such display shown on that page, but what was said on that page showed that the AMC would give clear instructions about the order in which UODs should be loaded where the trailer was going to contain deliveries for more than one store. It also showed that the loader was not required to fit in all UODs which were stated by the AMC to be intended to be put on a trailer. That was because of the following words, which were in the penultimate box on page 2 of D9/375. “If you are unable to load the units of delivery, then you can press [P1] and deliver them to a holding area. You will scan the warehouse point or key in the relevant identification number.”

[476]In addition, the fact that there might be multi-store cages for an assembler to assemble (as shown by D9/223, to which we refer in paragraph 17.4 above, where it was said that “You may have up to three stores, each with its own cage. You must carefully follow the terminal screen prompts to ensure that you assemble into the correct cage.”, and as shown in the final column of D9/193 and the photograph below it; we refer to that document in paragraph 26 above) meant that it was likely that the AMC would state the specific order in which multi-store delivery cages had to be loaded. The content of pages D5/2/25-26 (where we saw on the second of those pages the statement that “Stores are displayed in sequence order”), D5/2/138, D5/2/142, D5/2/154 and D5/2/156 provided some support for that conclusion. We bore it in mind that(1) we would not have expected the respondent to want a delivery driver to have to root around in the trailer for UODs to offload and

(2) we would have expected the respondent to have planned for all of the UODs for a store to be in the same place in the sequence. In the circumstances, we concluded that the claimants’ proposed words for paragraph 6.172 were more accurate than those proposed by the respondent for that paragraph. The respondent’s proposed words implied that the loader had even greater difficulty in deciding where to put UODs when they were going on a trailer containing loads for more than one store, than when loading a trailer which was intended to contain UODs for only one store. The claimants’ proposed words were these. “For Multi-Store loads, the AMC identified the order of store delivery. Therefore the job holder would load all the UoDs for the final delivery first, taking into account the guidance on weight distribution set out above.”

[477]Similarly, essentially for the same reasons, but also bearing in mind what we say in paragraph 468.2 above about the possibility of obtaining guidance from a manager, we preferred the statement of the facts which the claimants proposed for paragraphs 6.173 and 6.174 of the EVJD for Mr Hornak. Thus, among other things we accepted that the impact of the subject-matter of paragraph 6.173 was that it was easier, and not harder, for the loader in one respect to load a multi-store delivery. Case Numbers: 3304495/2018 & others 506

[478]Paragraph 6.175 of the EVJD for Mr Hornak was useful for its statement that the difficulties to which the respondent referred in the preceding three paragraphs of the EVJD occurred only rarely. Otherwise, we agreed with the claimants that the general assertions in paragraph 6.175 of the EVJD added nothing material to the factual picture for the IEs’ and our purposes. Working inside trailers: paragraphs 6.178-6.183A of the EVJD for Mr Hornak

[479]Paragraph 6.178 of the EVJD for Mr Hornak stated what were to us at least obvious things arising from the fact that a trailer is necessarily a confined space.

[480]Paragraph 6.179 of that EVJD asserted that the environment at the back of a closed trailer was “poorly lit”, but then in paragraph 6.180 it was said that “it was not the case that the job holder was unable to work safely or that he was unable to identify obstructions or spills”, although it was then said that “his ability to do that was hindered by the lack of light in the rear of the Trailers”.

[481]One of the factors to which the claimants did not refer in their response to those paragraphs and paragraphs 6.181-6.182 of the EVJD for Mr Hornak, which were of a similarly general nature, was that there should not have been any “obstructions or spills” in a trailer when it was ready for loading. That factor was clear from what we say above, principally in paragraphs 361 and 389. In addition, while it was said in paragraph 6.181 of the EVJD for Mr Hornak that “Poor visibility inside the Trailers also heightened the job holder’s need to focus and concentrate throughout the loading process, but particularly when reversing laden MHE into Trailers as well as when pushing, pulling, turning, manoeuvring, and strapping UODs into position inside the Trailer”, laden UODs were quite large, so it would have been fairly easy to see them at least.

[482]In any event, in our view it was an inescapable conclusion that it was incumbent on the respondent to ensure that there was sufficient light for a loader to see what he was doing. That was because of the requirement imposed by the Health and Safety at Work etc Act 1974 to take reasonably practicable steps to ensure that the work could be done safely. As a result we concluded that it could not be determined by us that a loader was required to work in insufficient light when loading a trailer. We therefore accepted with one exception the claimants’ proposals for the resolution of the factual disputes raised by paragraphs 6.179-6.182, namely to have only the claimants’ proposed words for paragraph 6.179 as a statement of the relevant facts. The exception was that we thought that the need to work in a confined space with only just enough light was relevant, but that those words sufficiently captured that factor, if one bore in mind the nature of the work of loading a confined space with UODs on MHE forks and then manoeuvring the UODs into place.

[483]As for the possibility of “lacerations to the job holder’s hands, despite wearing safety gloves” caused by “[e]ven minor damage to the metal structure of Cages”, as asserted in paragraph 6.183 of the EVJD for Mr Hornak (and repeated in the Case Numbers: 3304495/2018 & others 507 paragraphs with the same number in the EVJDs Mr Macko and Mr Davis), while we accepted that such “lacerations” could occur in that way, we also concluded (as stated in paragraph 63 of our judgment of 12 July 2023) that the same thing could necessarily happen to a customer assistant in a store, i.e. all of the sample claimants. However, given what was said in the extract from D1/3/17 which we have set out in paragraph 71 above, it was not the respondent’s expectation that a comparator (or a claimant) would experience such lacerations, although in practice the damage on cages might not at first be noticed. So far as relevant, we thought that the situation was best described for the purposes of section 65(6) by saying that the respondent did not require claimants or comparators to use damaged cages.

[484]Paragraph 6.183A of the EVJD for Mr Hornak (concerning moving roll cages) added nothing to the relevant SSOWs appended to all of the comparators’ EVJDs, for example at D1/3/3 and D1/3/4. Restacking: paragraphs 6.184-6.194 of the EVJD for Mr Hornak

[485]The job of restacking cages required adherence to the cage stacking training to which we refer in paragraphs 58-66 above. There was no need to do more than bear that in mind when considering the factual situation described in paragraphs 6.184- 6.194 of the EVJD for Mr Hornak. In so far as what was said in those paragraphs related to what anyone else might do, it was in our judgment irrelevant here.

[486]We saw that the respondent accepted that paragraph 6.193 of the EVJD for Mr Hornak should be deleted. As for what was said in paragraph 6.194 of that EVJD, it described what had to be done in the use of the AMC, which, given what we say in paragraph 16 of our second reserved judgment (at pages 7-8 above), was better described by a cross-reference to the AMC user guide and/or relevant training materials. It appeared that the content of pages 31 and 32 of D5/2 was sufficient for that purpose. The breaking down of pallets: paragraphs 6.200-6.202 of the EVJD for Mr Hornak

[487]The work of breaking down a pallet was normally done by an assembler in the manner to which we refer in paragraphs 262-263 above. We were therefore surprised to see the assertion in paragraphs 6.196-6.199 of the EVJD for Mr Hornak, with which the claimants agreed, that a loader might need to do the job of breaking down a pallet. In any event, the work to which we refer in paragraphs 262-263 above was straightforward and adequately described there.

[488]The work of breaking down a pallet was described by Mr Pilley in paragraphs 113- 116 of his witness statement as “handballing”. We refer in paragraph 85.4 above to the respondent’s documents showing what was involved in building a pallet by handballing, but that was plainly a different task. Case Numbers: 3304495/2018 & others 508

[489]It was not clear to us whether there was any difference (or, perhaps, any relevant difference for the IEs’ purposes) between handballing in this context and picking from a breakdown pallet as described in paragraphs 262-263 above. If there was a difference, then it will in all probability have related to the number of cages into which a pallet’s contents needed to be distributed. But that number was not stated in paragraphs 6.200-6.202 of the EVJD for Mr Hornak.

[490]What was said in paragraph 6.202 of that EVJD (and the same paragraph of the EVJD for Mr Macko) differed slightly from what was said in the equivalent paragraph of the EVJD for Mr Davis, which was paragraph 6.203. Ignoring the issue of the weight of the units which might be moved (which, of course, varied), it was said in the EVJD for Mr Davis that the work of handballing in this context might take 10 to 20 minutes, whereas for Mr Hornak and Mr Macko it was said that it might take between 15 and 60 minutes.

[491]We could see no mention of breaking down pallets as part of the loading process in any training documents. On the oral evidence before us (and there was, unsurprisingly, none to the contrary from the claimants), we were nevertheless obliged to conclude that it was part of the loading process and that it involved sustained effort from the loader. However, whether it took 10, 15, 20 or 60 minutes to do it, seemed to us to be irrelevant for present purposes, bearing in mind(1) the schematic at H31 and

(2) the fact that the difference in the amount of time taken might have resulted from the differing skills and abilities of the three ambient DC comparators in question. If the IEs disagree then they can apply to us under rule 6(3) of the EV Rules for a determination of the time that the task typically took. Paragraph 6.209 of the EVJDs for Mr Hornak and Mr Macko; paragraph 6.210 of the EVJD for Mr Davis: trunked UODs

[492]In substance, the task of marshalling was no different from the task of loading. Both were driven by commands on the AMC and involved moving UODs with MHE from one place in the DC to another. If and to the extent that it was necessary to take into account what the ambient DC loaders did by way of marshalling, we thought that the document which was directed nominally at fresh DCs, D9/394, was applicable to the work of the three ambient DC loaders, and that the IEs and we both could and should regard what was said in that document as informing us of all that needed to be known about the task of marshalling.

[493]However, it was said by Mr Hornak in paragraph 22 of his first witness statement that he did more than what was stated in that document, as he said that he went to trailers and unloaded trunked deliveries. As far as we could see, that was both unloading and marshalling. Mr Hornak also said in that paragraph that the trailer on which the “UODs imported from other warehouses” would often be “tilted, that is I had to push the shipping units uphill, which was especially tiring for my legs.” However, that made no sense to us, since all of the training materials which we had seen made it absolutely clear that it was imperative that the trailers and the dock levellers were Case Numbers: 3304495/2018 & others 509 level and because, as we say in paragraph 517 below, if there were ever a problematic slope on a trailer, then the person using it would be required to inform a manager who would be required to arrange for the trailer to be adjusted so that its floor was level.

[494]It was relevant that Mr Pilley did not, in paragraph 118 of his witness statement, say that Mr Hornak unloaded trunked UODs: only that he went and got them “from the OTB Grid”. Mr Pilley did, however, in that paragraph approve (in incomplete wording) paragraph 6.209 of the EVJDs for Mr Hornak and Mr Macko.

[495]The cross-examinations of Mr Hornak and Mr Pilley as recorded on, respectively, pages 109-110 of the transcript of day 28 and pages 186-187 of the transcript of day 23, showed that(1) Mr Hornak’s oral evidence did not support the proposition that he unloaded trunked UODs from their incoming trailers, and

(2) Mr Pilley had no personal knowledge of the content of paragraph 6.209 of the EVJD for Mr Hornak and Mr Macko.

[496]In the EVJD for Mr Davis, the equivalent of paragraph 6.209 of the EVJDs for Mr Hornak and Mr Macko was paragraph 6.210. The whole of paragraph 135 of the witness statement of Mr Evans bears repeating here. It was as follows. “[ED 6.210] I confirm that paragraph 6.210 of Ernie’s EVJD is accurate. Ernie read UOD Labels to locate the relevant UODs and either transported them to a stand down lane at a Grid Location or, alternatively, directly to the Loading Bay for immediate Loading and despatch. This was the method of work in Magor Trunk, and it differed from the system at Magor DC where UODs were delivered to the Bay by colleagues undertaking Assembly activities. It was also what Ernie did when Marshalling in Magor DC.”

[497]We could not understand how reading a UOD label would help to locate a UOD, as the label ought to be on the UOD already. That oddity was apparently recognised by the respondent by the time of closing submissions as paragraphs 6.209 of the EVJDs for Mr Hornak and Mr Macko and paragraph 6.210 of the EVJD for Mr Davis were stated by the respondent in its closing submissions in relation to Mr Hornak’s work to have been “amended as [a] pragmatic concession” to the following words. “As part of every second Loading Assignment the job holder used the AMC to locate the relevant UOD and transported it to the loading Bay for immediate loading and despatch.”

[498]The fact that Mr Evans had approved paragraph 6.210 of the EVJD for Mr Davis and repeated its content explicitly in paragraph 135 of his witness statement undermined his credibility. This was one example of a factual assertion in an EVJD which should never have been made, and a statement in a witness statement supporting it which should also never have been made. Case Numbers: 3304495/2018 & others 510 Priority cages: paragraph 6.213 of the EVJD for Mr Hornak

[499]The next dispute related to a paragraph which was about something which probably did not need to be mentioned in the EVJD in any event. That paragraph was about the need for a loader to find “lost sales” UODs or “starred UODs” before being able to continue to load. The work of loading must have included (i.e. it was obvious that it did include) finding the UODs to load if they were not already at the loading bay. The fact that there were some priority UODs which could not be left off the load added nothing material in our view to the work of a loader. If the IEs disagree with that analysis then they can take into account the fact that the loader would need to find one or more UODs as part of the work of loading. That was the purport and effect of paragraph 6.213.

[500]We add that we saw that the claimants appeared nevertheless to have accepted the validity of the content of paragraph 6.213. We say that because the only dispute which they maintained about that paragraph concerned the reference in it to the AMC guide. Scanning and loading UODs; paragraphs 6.215-6.286 of the EVJD for Mr Hornak Introduction; paragraphs 6.218 and 6.220 of the EVJD for Mr Hornak

[501]Many parts of paragraphs 6.215-6.286 of the EVJD for Mr Hornak were agreed. However, even those parts that were agreed were on occasion in our view unreliable. For example, in paragraph 6.218 as agreed, this was said. “All other (wheeled) UODs collected by the job holder were positioned by him by hand before the forks of the Loading Truck could be safely inserted beneath them. The job holder was able to carry up to a maximum of 4 UODs i.e., MUs or Dollies (or 5 Slim Line Cages) on the Loading Truck forks before returning to the loading Bay and loading them on to the Trailer.”

[502]We could not understand why it might be necessary for UODs to be moved more than minimally, given that they will have been deposited by a LLOP fully laden and in a place from which they could be simply picked up by the loading truck’s forks being put beneath them and the forks raised. A factor which supported that conclusion was that, especially where the UODs were in the loading bay, there will have been only a short distance to travel to the trailer.

[503]Similarly, while it was obvious that a loader would have to be “confident that all UODs were securely positioned on the [LLOP’s] forks before attempting to move them”, as claimed in paragraph 6.220 of the EVJD for Mr Hornak, we thought that a fully-laden UOD was unlikely to be insecure, if only because of gravity. Paragraph 6.221 of the EVJD for Mr Hornak; the impact of a failure to do the job properly on the respondent’s stock management system Case Numbers: 3304495/2018 & others 511

[504]Paragraph 6.221 of the EVJD for Mr Hornak added nothing to the statement of the work of a loader contained in the training materials, and nothing for the purposes of the IEs in so far as it stated the impact on the respondent’s stock management system of a failure to use the AMC properly. We thought that that impact was obvious, and did not need to be stated, or, if stated, it needed to be stated only once. We do not mean in any way to suggest that it did not matter if a loader (or any other comparator) caused false information about stock to be created or left on the respondent’s stock management system. Far from it. It mattered hugely, as the respondent’s stock management system, or Denver, was of central and critical importance to the respondent’s business. Paragraph 6.222 of the EVJD for Mr Hornak; ensuring that the UODs were stable when lowered

[505]While it was not clear from the claimants’ closing submissions in relation to paragraph 6.222 of the EVJD for Mr Hornak, the respondent’s closing submissions on that paragraph made it clear that they had accepted the claimants’ position except in regard to the use by the respondent of the word “carefully”. We accepted that the work had to be done with care, but we also thought that that was obvious. Paragraphs 6.224 and 6.227 of the EVJD for Mr Hornak;(1) Does “manoeuvring” include “pushing and pulling”?

(2) Did all slim line cages need to be put onto trailers by hand?

[506]The claimants opposed the inclusion of the words “pushed, pulled and” before the word “manoeuvred” in the text of paragraph 6.224 of the EVJD for Mr Hornak, which concerned what happened when a cage or dolly was put into a trailer. Paragraph 6.227 of the EVJD concerned loading slim line cages, and in that paragraph the words “pushed, pulled and” before the word “manoeuvred” were not opposed by the claimants. In fact, we rather doubted the accuracy of both paragraphs of the EVJD. In relation to paragraph 6.224, that is because we understood that MHE with cages or dollies on could be driven onto a trailer and that the cages or (as the case may be) dollies could be dropped onto the floor of the trailer, near to wherever they were to be secured. In addition, in paragraph 6.227 it was said that “the job holder did this by pulling, pushing, and manoeuvring each of them off the lowered forks of the Loading Truck at the edge of the Dock Leveller before manoeuvring them into the correct load and row position”. Given what we say in paragraph 394 above, that assertion did not bear scrutiny.

[507]However, those factual issues were not explored before us. In any event, we accepted that a certain amount of movement of UODs by hand was required, and we agreed with the claimants that the word “manoeuvre” included pushing and pulling. The dispute about the use of the words “pushed” and pulled” was another dispute which should not have been maintained. In what follows, if we make no reference to a dispute about the text of this sort, it is because we concluded that it did not need to be resolved because the additional words were, as claimed, unnecessary. If, Case Numbers: 3304495/2018 & others 512 however, we concluded that the additional words added something, then we say that below. Paragraph 6.229 of the EVJD for Mr Hornak

[508]By the time of closing submissions, it was stated by the respondent but not the claimants that paragraph 6.229 of the EVJD for Mr Hornak was agreed and that it had been agreed by the respondent that paragraph 6.231 of that EVJD (which was really a repetition of the words in paragraph 6.229 to which the claimants objected) should be amended in the manner sought by the claimants. For the avoidance of doubt, we thought that what was said in columns 4 and 5 of the SSOW at D1/3/17 about the wheels of slim line cages, from which, we guessed, paragraph 6.229 had originally been drawn and then expanded, was sufficient to state this aspect of the work of a loader. Arrangement of rows of slim line cages: paragraph 6.230 of the EVJD for Mr Hornak

[509]The claimants objected to the content of paragraph 6.230 of the EVJD for Mr Hornak on that basis that it was “Evaluation/analysis”. It was a short paragraph, but in our view it said something potentially relevant in saying that a loader had to exert “force” to “squeeze the final” slim line cage into a row on a trailer. Whether or not it was accurate was, however, not clear to us. Indeed, paragraph 6.230 of the EVJD for Mr Hornak was in our view unnecessary and in reality repetitious, given that this was said in paragraph 6.130 of that EVJD (which, as we say in paragraph 452 above, by the time of closing submissions was agreed). “It was possible to load 4 black Cages and 5 red Cages in a single row, although there was then less than 2 to 3 inches left between the 2 ends of the row and the sides of the Trailer.” Paragraphs 6.238-6.239 of the EVJD for Mr Hornak: loading merchandising units and dollies

[510]The detail in paragraphs 6.238-6.239 of the EVJD for Mr Hornak related to the extent to which a loader might need to “raise the forks to a height lower than the maximum” when picking up an MU or a dolly, and the manner in which the forks were moved. In substance, the parties were in agreement that the forks might need to be raised to less than their maximum “to minimise the risk of [the MU or dolly in question] falling over. The words of paragraph 6.239, were, however, the subject of a substantial objection. We agreed with the claimants that the words of that paragraph were wrong, but not for the reasons on which the claimants relied. In that paragraph, this was said. “The job holder gently moved the forks up using the hand controls to ensure they were stable and that any wheels were above floor level, using his experience to mitigate the risk of topple during movement.” Case Numbers: 3304495/2018 & others 513

[511]However, this was said at D9/476/6. “Use of the Load Lifting Forks:• Lifting and lowering speeds are preset. To lift, press the raise load lifting forks button on the control handle until the desired height is reached. To lower, press the lower load lifting forks button on the control handle.

• Cages/dollies should be aligned in a row before reversing under them and then raising the forks to the safe travel height.”

[512]Thus, the assertion that there was a need for any kind of gentleness in regard to moving the forks was mistaken and misleading. For the avoidance of doubt, that was because the LLOP’s forks moved at a preset speed. Paragraphs 6.247-6.250 of the EVJD for Mr Hornak; tightening the strap ratchets

[513]We thought that the description of strapping loads in non-Strap 2000 trailers was sufficiently stated(1) on pages 5 and 6 of D9/374 and D9/393, and

(2) in columns 6 and 7 in the SSOW at D1/3/17.

[514]As for the Strap 2000 system, the steps required to be taken by a loader were stated clearly in the SSOW at D9/222,

[515]Of course the IEs were able to take into account anything which was agreed in paragraphs 6.247-6.250 of the EVJD for Mr Hornak, if that went beyond what was in the SSOWs to which we refer in the preceding paragraphs above and it was regarded by the IEs as adding something material for present purposes. For example, the number of times that a loader might have to strap a row of UODs per shift might be relevant. However, that would be capable of being calculated by reference to the number of vehicles or trailers loaded and their length, and those things would vary from shift to shift. In addition, the schematic at H31 suggested that that kind of detail was unlikely to be relevant. Paragraph 6.252 of the EVJD for Mr Hornak; the risk of a rivet coming out of its socket

[516]We saw that Mr Davis had (as recorded in lines 6-25 on page 88 of the transcript of day 24) given oral evidence which contradicted the proposition that rivets came out of their sockets at any time. We saw too that Mr Hornak’s evidence (as recorded in the passage from line 8 on page 115 to line 9 on page 117 of the transcript of day 28 and in paragraph 68 of his witness statement) was only that he had once, and only once, during his time as an employee of the respondent, experienced a rivet popping out and as a result a strap hitting him. He did not report it, he said, so there was no corroboratory evidence for that assertion. But his reason for not reporting it was that Case Numbers: 3304495/2018 & others 514 “nothing serious happened” to him. Thus, the risk of a rivet popping out when pulling a load-securing strap in a trailer was low. Paragraphs 6.260-6:262 of the EVJD for Mr Hornak; what happened if a trailer floor started to slope because of the weight of products loaded on it

[517]We could not see how the respondent could in practice have permitted a trailer floor to remain sloped to any extent because of the weight of goods on it. In any event, we concluded in the light of the oral evidence of Mr Davis and Mr Hornak as recorded on day 24 (at pages 89-93) and day 28 (at pages 117-118) respectively, that the words proposed by the claimants for paragraph 6.260 were a better reflection of reality than those proposed by the respondent. That meant that what was said in paragraphs 6.261 and 6.262 was inaccurate. For the avoidance of doubt, the assertions made in paragraphs 6.260-6.262 of the EVJD for Mr Hornak that he would in practice have to deal with “a slight downward incline” which increased as the trailer was loaded and that he therefore would have to be “extremely careful when pushing a Cage over the ramp, because of the risk that it could topple over or cause damage to its wheels”, were untrue. That was because if the floor of a trailer ever became sloped to such an extent that it materially affected the task of loading, then the loader would understandably go (and in our judgment would be required to go) to his manager and ask for the trailer to be adjusted so that its floor was again level. Paragraphs 6.276-6.278 of the EVJD for Mr Hornak; overspill

[518]We have already referred (in paragraph 460.2 above) to the issue of running out of space for UODs on a trailer (showing that if something had to be left off the trailer then it simply had to be “scanned and moved to the designated Late Cages area at the end of the loading process”). In paragraph 6.276 of the EVJD for Mr Hornak, an additional detail was asserted by the respondent, and that was that if there was “overspill”, by which was meant such a lack of space, then the loader (and we preferred the initial proposed words of the respondent, which we now quote) “was required to investigate whether another load for that same Store was on the delivery despatch schedule at another time before the end of his shift.” Given what we say in paragraph 460.2 above, which was about the same thing, there was no such requirement. We mention paragraph 6.276 here in part because we agreed with the claimants that the only kind of investigation that could have been said to be required was to look at the AMC.

[519]In fact, paragraph 6.276 set the scene for what was said in paragraphs 6.277-6.278 of the EVJD, which contained a description of what the loader would then do. Since it was plainly an authorised way of working, we accepted that what was described in those paragraphs was part of the work of a loader for the purposes of section 65(6) of the EqA 2010, but with one reservation we also preferred the words of the claimants to describe that work to those which were proposed by the respondents in those paragraphs. The reservation was that the time that it might take to walk to the Loading Desk (5 minutes) might be relevant. Case Numbers: 3304495/2018 & others 515 Paragraphs 6.280-6.282 of the EVJD for Mr Hornak; swapping UODs

[520]If and to the extent that it was relevant for the IEs and us to know that a loader might, once a week, inform his manager that he (the loader) thought that a load might be too heavy to be capable of being loaded legally, then we agreed with the claimants’ submissions about the words to be used in paragraph 6.280 of the EVJD for Mr Hornak in recording that fact. However, we saw from paragraph 6.281 of that EVJD that it would only be feasible to do that when there was a “later load” as described in paragraph 6.276 of the EVJD. We also thought that it was clear even from paragraphs 6.280 and 6.281 as originally drafted that paragraph 6.282 was wrong in suggesting that the loader had the power to decide whether to move a UOD from one load to another. Rather, it was for the loader’s manager to make that decision. That was clear from paragraph 6.278 of the EVJD for Mr Hornak and what Mr Davis said in cross-examination as recorded on pages 100-101 of the transcript of day 24. Paragraph 6.287 of the EVJD for Mr Davis: loading tobacco

[521]The job of a loader loading tobacco was to lock the cage after he had accessed it. That was agreed by Mr Davis at pages 97-99 of the transcript of day 24. That was all that the IEs or we needed to know about the job of a loader loading tobacco. Paragraph 6.293 of the EVJD for Mr Hornak: the frequency with which a roller door might stick

[522]We could not see how, as a matter of law, the value of the work of loaders (bearing in mind the fact that there were many of them) could vary according to the incidence of difficulties with the equipment used by the loaders resulting from the equipment being faulty. That was because in our view it could not be correct as a matter of law to say that an employer could make an employee’s work more valuable for the purposes of section 65(6) of the EqA 2010 by making it harder for the employee to do his or her job by failing to keep equipment used by the employee in good order or, if alternative equipment could be used, providing such alternative equipment. In our view, the value of the work had to be assessed on the assumption that the employer would either keep the equipment in reasonably good repair or, where it could not be so kept and it was possible to do so, immediately replace the equipment.

[523]Of course, that principle, if correct, cut both ways, so that a failure to ensure that for example cages were in good order could not increase the value of the work of a customer assistant in a store for the purposes of section 65(6) of the EqA 2010 just as much as a failure to ensure that roller shutter doors were in good order could not increase the value for those purposes of the work of a loader.

[524]For those reasons, we declined to make a finding about the factual dispute stated in paragraph 6.293 of the EVJD for Mr Hornak. In any event, we assumed that the IEs Case Numbers: 3304495/2018 & others 516 would be able to assess the effort involved in opening a trailer’s roller shutter door and would take into account the fact that sometimes such a door would stick. Paragraph 6.296 of the EVJD for Mr Hornak; the risk of a leg getting stuck in the gap between a trailer and bay door

[525]We thought that the (we thought rather low) risk of a loader getting his leg stuck between a trailer and the bay door was one of the ordinary incidences of the job of a loader, but that it was just one of the risks of the job, in the same way that working in the environment of a DC with battery-driven trucks being driven around was a risk of the job of an assembler.

[526]Whether the risk of a loader’s leg slipping into the gap between the edge of the loading bay and the back of a trailer added anything of value for present purposes was a matter for the IEs. We doubted that this was the kind of risk which would need to be taken into account at a stage 2 hearing, but without expert evidence on the matter, we could not come to a conclusion on the issue. Paragraphs 6.298-6.299 of the EVJD for Mr Hornak; the Encrypta unit

[527]We were sure that the fact that there was a security device “to enable the driver to identify whether the load had been tampered with during delivery” as stated in paragraph 6.298 was irrelevant for present purposes. The role of a loader was to do what was required in relation to any security device of the sort used by the respondent, such as the Encrypta unit. The reason for the existence of the unit was not in our view relevant here. If the IEs disagree with us on this issue then they must of course take into account the content of paragraphs 6.298-6.299 of the EVJD for Mr Hornak. Paragraphs 6.302-6.304 of the EVJD for Mr Hornak; how to “close” a load on the AMC

[528]The content of paragraphs 6.302-6.304 of the EVJD for Mr Hornak was either drawn directly from the respondent’s training materials, or it was a simple statement of the manner in which an AMC had to be operated. We saw that there was at D9/374/7 a statement which related to the content of paragraphs 6.302-6.304, as there was at D9/375/2. We refer to both of those training documents above in a number of places. In addition, the specific sequence which gave rise to the content of paragraphs 6.302-6.304 appeared to be at D5/2/83-89. If that was correct, then there was no room for a factual dispute about what was required of a loader when “closing” the load on an AMC. In fact, it appeared that the parties were in substantial agreement about what was required of the loader. Paragraph 6.308 of the EVJD for Mr Davis; was Mr Davis required to input the temperature of a refrigeration unit into which he was loading ambient products? Case Numbers: 3304495/2018 & others 517

[529]We were somewhat bemused by the fact that there was a dispute about the words used in paragraph 6.308 of the EVJD for Mr Davis. That was because the parties were in practical terms in agreement that he had to input the ambient temperature onto his AMC in the circumstances described in paragraph 6.308 of that EVJD. We saw incidentally that the proposition that he needed to do so was supported by what was said at D5/2/52 and D5/2/87 (although those pages were not conclusive), but in any event what was in issue was a requirement of the use of an AMC: one of many. We rather doubted that this kind of detail was relevant to the determination of the value of the work of a loader, but if the IEs regard this detail as relevant then of course they can take it into account. Paragraph 6.309 of the EVJD for Mr Davis: the fact that for a period of about a year a manager checked the ratchet strapping on a load

[530]In contrast, we were of the clear view that the fact that a manager either(1) for any period of time or

(2) always checked the work of an employee, was outside the scope of the inquiry at a stage 2 hearing, and possibly also a final hearing within the meaning of the EV Rules. Thus, we concluded that the content of paragraph 6.309 of the EVJD for Mr Davis, relating to the claimed fact that because of a number of incidents in the DC’s yard, “as well as a more serious incident on the public highway (involving another DC) where stock fell from the back of a Trailer as a result of the Trailer and its contents not being sufficiently secured”, a manager checked the strapping on every load, was irrelevant for present purposes. If the IEs disagree with us, then they can take into account the claimed factual circumstances, which for want of contrary evidence and the absence of a reason to reject them, we accepted. Paragraph 6.305 of the EVJD for Mr Hornak; the impact of the weighbridge

[531]The relevance for present purposes of the possibility of an axle being found, when a lorry was weighed at the respondent’s weighbridge, to be overloaded and returned to the DC, was not clear to us. It was the necessary consequence of the requirement not to overload the axles, so if that requirement was relevant, then it was already catered for in our factual determinations above, in particular what we say in paragraph 467 above, read with what we say in paragraphs 80 and 92.8 above. Paragraphs 6.307-6.309 of the EVJD for Mr Hornak: more on trailer weights

[532]We agreed with the claimants that the content of paragraphs 6.307-6.309 of the EVJD for Mr Hornak added nothing material to the factual situation. That was for the following reasons. Paragraph 6.309 was plainly irrelevant here. Paragraph 6.308 was in reality part of paragraph 6.307, and paragraph 6.307 was in our judgment no more than a statement of the obvious if and to the extent that it was truly possible for a loader to tell whether or not a trailer “was likely to be overweight in any respect, whether overall or because the contents of the load were likely to make it difficult to achieve the weight distribution required for that particular Trailer”. However, we observe that a manager would be unlikely to be any more able than a loader to know Case Numbers: 3304495/2018 & others 518 whether or not that was so. In addition, we suspected that the respondent’s computer systems, which would know everything that was intended to be in a load, would be able to tell whether or not the load was likely to be overweight, so that there would be no need for a loader to alert his manager to the loader’s perception that the load might be overweight. Paragraph 6.314 of the EVJD for Mr Hornak: the order of deliveries to convenience stores

[533]Given the factors to which we refer in paragraphs 475-478 above, there was nothing material in paragraph 6.314 of the EVJD for Mr Hornak. Paragraphs 6.318-6.320, 6.325, 6.357 and 6.366 of the EVJD for Mr Hornak: dual working and double-deck trailers

[534]The claimants disputed paragraph 6.318 of the EVJD for Mr Hornak on the basis that “[t]he SSoW was not the formal document setting out the procedure” for loading double-deck trailers. They did not, however, say what was that formal document. It was, we thought, D9/382, to which we refer in paragraph 92.8 above. We also thought that that document stated all that needed to be said about the things which were the subject of paragraphs 6.318-6.320, 6.325, 6.357 and 6.366 of the EVJD for Mr Hornak. That was not least because that document showed what had to be done, in what sequence, and the fact that there would always be two trained loaders loading a double-deck trailer, so that by implication they would both be responsible for any errors, but they would both be helped by the fact that they could consult the other on any problematic issues. Whether there would have been any such problematic issues was another matter, given the content of D9/382. Paragraphs 6.328-6.332 of the EVJD for Mr Hornak; more on double-deck trailers

[535]Similarly, with one exception, the content of paragraphs 6.328-6.332 of the EVJD for Mr Hornak seemed to us to add nothing material to what was in D9/382. The exception was the description in paragraphs 6.326-6.328 (the first two of which were agreed, we were aware) of how topping of cages was required and the amount of product which might be moved by the loaders in the process. There was no reliable evidence before us about the weight of products moved in that process, however. Nevertheless, we concluded that the fact, if it were such (and since it was agreed and there was no reason to doubt it, we treated it as such) that there was a need to top about 25% of cages, stated sufficiently that aspect of the demands on a loader of helping to load a double-decker. Paragraphs 6.340, 6.344, 6.348 of the EVJD for Mr Hornak; moving UODs by hand in the course of loading a double-deck trailer

[536]We thought that paragraphs 6.340, 6.344 (through its proposed final words, which included an assertion that if the hydraulic lift platform was too high or too low then there was a risk of “damage to the Trailer and to other UODs or a situation whereby Case Numbers: 3304495/2018 & others 519 [the loader] had to push UODs uphill”) and 6.348 of the EVJD for Mr Hornak were factually incorrect if and in so far as they asserted that the respondent required loaders to put all UODs other than pallets and “solid based MUs” onto the hydraulic lift platform by hand. That is because this was said at D9/382/5. “Pallet and picking trucks can be used to carefully position units of delivery onto the scissor lift, however only pedestrian pallet trucks can be used to load onto the trailer itself, and even then only on the lower trailer deck.” Paragraphs 6.342 and 6.343 of the EVJD for Mr Hornak; raising and lowering the hydraulic lift

[537]In paragraph 6.342 of the EVJD for Mr Hornak, it was said that because visibility was poor on the lower deck due to lack of light, that meant that the person operating the lift had to take “additional care when lowering the Hydraulic Lift platform”. In fact, the lift was raised or lowered simply by using the up and down buttons (this was clear from, for example, D9/382/8). While we could see that there was a need to be careful in doing that job, any error was easily correctable by pushing the other button.

[538]Paragraphs 6.343 and 6.344 of the EVJD for Mr Hornak were surplusage. That was for the following reasons. Paragraph 6.343 added nothing material by saying that it was important to get the lift in the right place. That was obvious, as was the consequence (stated in the second part of paragraph 6.343 and the whole of paragraph 6.344) of the lift not being level with the floor of the part of the trailer into which the UODs were being loaded. In fact, the statements in paragraph 6.344 (ignoring for this purpose the final words of the paragraph, to which we refer in paragraph 536 above, which, given what we say in paragraph 493 above, we could not accept in any event) of the consequences were no more than an explanation of the first statement, so they were repetitious. Paragraphs 6.354 and 6.355 of the EVJD for Mr Hornak; the process of loading upper and lower decks

[539]Contrary to what was said in paragraphs 6.354 and 6.355 of the EVJD for Mr Hornak, the process of loading the upper deck was not the same as that for loading the lower deck. That was because of what was said at the bottom of page 4 of D9/382, which was this. “Remember when loading a double deck trailer you should always load the bottom deck first. You should start with the heavy units of delivery, then medium units and finally light units of delivery, before loading the top deck; this will ensure that the trailer has not got all of the weight on the top deck. Case Numbers: 3304495/2018 & others 520 If the bottom deck is filled with heavy units of delivery, you should place any remaining heavy units of delivery on the top deck, but make sure they are evenly distributed across the deck. If product pallets are to be loaded, they must always be placed on the bottom deck of the trailer.”

[540]Having said that, we accepted that all UODs other than pallets (since pallets would not be loaded on the upper deck) would need, given what we have set out in paragraph 536 above, to be loaded by hand on the upper deck.

[541]Those things were sufficient to state the factual position to which paragraphs 6.354 and 6.355 of the EVJD for Mr Hornak referred. The “burden of accountability and responsibility”; paragraphs 6.363-6.377 of the EVJD for Mr Hornak

[542]We found the statements of responsibility on the part of a loader at paragraphs 6.363-6.377 of the EVJD for Mr Hornak to add nothing material to the assessment of the work of a loader and the conditions in which it was done. The fact that there might be particularly severe consequences financially for the respondent of an error made by a loader was not in our judgment relevant at this stage. The same was true of the risk of damage or injury on the part of an assembler: a slight error of judgment in the driving of for example a LLOP could cause much damage and disruption financially, or, rather worse in our view, could maim or kill a fellow-employee. However, our judgment, in the absence of authority on the point, was that those things were not relevant at a stage 2 hearing. If the IEs think that those things are relevant at this stage, then they can say so in their report to us, and we will hear submissions on the relevance of that to which the respondent referred as a “burden of accountability and responsibility”. Key facts including metrics relating to loading; paragraphs 7.1-7.7 of the EVJD for Mr Hornak

[543]Paragraphs 7.1-7.3 of the EVJD for Mr Hornak were general assertions about the relevance of the content of paragraphs 7.4-7.7 of that EVJD, so they were simply submissions, and not even remotely evidential. The only potentially relevant factual thing mentioned in paragraphs 7.1-7.3 was that Mr Hornak worked 7 hours 20 minutes a day, but we did not understand that to be the subject of a factual dispute. Nor did we see it as being material, although if the IEs disagree with us on that, then they can take the working day of Mr Hornak (and that of any other comparator or of a sample claimant) into account.

[544]We were baffled by some of the assertions in paragraphs 7.4-7.7 of the EVJD for Mr Hornak. One of those was that, as stated in paragraph 7.6, the “average total weight handled by the job holder during a full shift of Loading (in 2017/18) was 70 tonnes”. It Case Numbers: 3304495/2018 & others 521 seemed clear to us that Mr Hornak did not personally lift 70 tonnes, and if that was the case then there was no relevance in the statistic.

[545]Equally, for the same reasons as those stated in paragraph 542 above and paragraph 67 of our second reserved judgment (at page 25 above), the value of the stock moved by Mr Hornak, which was the subject of paragraph 7.4 of the EVJD for him, was irrelevant to the issue of the value of the work done by him and the conditions in which it was done.

[546]The assertion that the work was physically demanding for the reasons stated in paragraph 7.5 of the EVJD for Mr Hornak was understandable, but it added nothing material for present purposes. That was because(1) it was obvious that the work was physically demanding, given that the job of a loader involved manoeuvring a number of UODs, but, crucially,

(2) the issue here was what were the demands, not whether or not the work was “demanding”.

[547]The number of steps walked by a loader in a full shift might have been relevant, but we failed to see how the precise number of steps walked (which was the subject of paragraph 7.7 of the EVJD for Mr Hornak) would matter. That was not least because it might be easier to walk for some of the time than to stand in one place, so that the key thing might be the need to stand for some or all of a working day, but on the basis that walking might well be easier than standing at, say, a till. This is something which we will leave to the IEs to assess. The work of Mr Davis in relation to “Unloading Trunked Goods and Marshalling”; paragraphs 6.384-6.442 of the EVJD for Mr Davis

Introduction

[548]The only other findings of fact which we needed to make in relation to the tasks of the ambient DC comparators related to the work done by Mr Davis in unloading trunked goods and marshalling. Those things were dealt with in paragraphs 6.384-6.442 of the EVJD for him. Marshalling Paragraph 6.385 of the EVJD for Mr Davis; the overview

[549]The substance of paragraph 6.385 of the EVJD for Mr Davis was agreed. What was not agreed was some words relating to responsibility. In fact, we thought that they did no more than state the obvious in that by doing the work of unloading trunked deliveries and marshalling he was responsible for what happened when he did it. Of course those words added nothing material. But in any event, the training materials to which we refer in paragraphs 92.2, 92.3, 92.4 and 444 above in relation to marshalling, and in relation to trunked deliveries in paragraphs 161-163 above, showed that the process was driven by the AMC worn by the person doing those Case Numbers: 3304495/2018 & others 522 things. That showed that the person doing them would be free from criticism if he just did what he was told to do by the AMC. Paragraph 6.390 of that EVJD; the impact of the fact that incoming trailers had roller doors

[550]It was agreed that the roller shutter doors of the incoming trailers were of the same sort as those to which we refer in paragraphs 349-351 above. Paragraphs 6.391-6.393 of the EVJD for Mr Davis; unloading trunked goods in

[551]We could not see anything in paragraphs 6.391-6.393 of the EVJD for Mr Davis which added to what was said in the documents to which we refer in paragraphs 161- 163 above. In regard to undoing the strapping, which was the subject of paragraph 6.393, we thought that the words at the top of column 4 on D1/3/16 were sufficient to state the demands of the task. Paragraph 6.397 of the EVJD for Mr Davis; placement of the UODs once they were unloaded

[552]We found it unsurprising that unloaded UODs which were intended to be delivered to stores from the DC at which the unloader worked had to be put in specific places. We saw nothing relevant (in the sense that a finding of fact about it could affect our determination of the demands of the work of an unloader) in the pages of the AMC Guide to which reference was made in paragraph 6.397 of the EVJD for Mr Davis. Paragraph 6.407 of the EVJD for Mr Davis; the risk of congestion around Bay 68

[553]It was also unsurprising that there might be congestion in parts of the DC at which an unloader worked where loaders were collecting for example the unloaded trunked UODs. We could not see that the possibility of such congestion was a factor which bore on the evaluation of the work of the unloader. If the IEs disagree with us in this respect then they can simply take into account the possibility of such congestion. Paragraphs 6.409, 6.412, 6.414 and 6.417 of the EVJD for Mr Davis; late cages and “lost sales” UODs

[554]The work of a marshaller in regard to late cages and overspill cages was, we understood, driven by the AMC. There was therefore in our view no need for a specific reference to that work in the evaluation by the IEs of the work of a marshaller, since the work differed in no substantial way from that of an assembler driving a LLOP with UODs on its forks, following instructions on the assembler’s AMC. If the IEs disagree with that analysis then they may take into account what was stated in the documents to which we refer in paragraph 85.5 above, namely D9/584 and D9/629. However, those documents, to which we now turn in detail, supported our conclusion that dealing with late cages was, for Mr Davis, not different in substance from the work of a loader. Case Numbers: 3304495/2018 & others 523

[555]The first aspect of the documents at D9/584 and D9/629 which was relevant here related to the issue of responsibility, if and to the extent that paragraphs 6.409 and 6.412 asserted that it was primarily that of a loader or a marshaller to ensure that late cages (or “lost sales” UODs: we did not see any difference between the two; we refer to lost sales UODs in paragraph 78 above) were sent to stores as a matter of priority as soon as possible after they were missed off their intended delivery. That assertion was not correct because it was said in the second bullet point on the first page of both D9/584 and D9/629 that it was the respondent’s “Late Cages Policy” that “Warehouse managers ensure that late units of delivery are sent to Store on the next available delivery.”

[556]However, it was also stated on those pages that it was part of that policy that “[t]eam members will physically check the late cage area”, and that might have been thought to be a responsibility of a team member because it was said a little lower down on the same page that “Team members must move late units of delivery on the loading system using the move unit of delivery function.” However, this was said on the next page, under the heading “Late Cages Procedure”, to be a responsibility of the “Team Member”: “1. When loading your vehicle:• The Load Summary screen on your arm computer will inform you if there are any late units of delivery for the stores you are loading for

• Any late units of delivery take priority over the other available units of delivery 2. Travel to the late cage area and collect the units of delivery and return to the loading bay 3. Load the late units of delivery 4. Continue to load following the Paperless Loading process”.

[557]That showed that it was the responsibility of a loader rather than a marshaller to load late UODs. If, however, Mr Davis did that work as part of the work of a marshaller because of an arrangement to that effect at the DC at which he worked, then it was simply an aspect of the work which would normally be done as a loader. Dealing with overcrowded loading bays; paragraphs 6.418-6.423 of the EVJD for Mr Davis

[558]The task described in paragraph 6.418 of Mr Davis’ EVJD (monitoring the available space on the loading bays, in particular to see when assemblers “had dropped filled Cages into the loading bay before the Loader had completed his previous load”) was not, as far as we could see, catered for in the training materials. The words originally Case Numbers: 3304495/2018 & others 524 proposed by the respondent in paragraph 6.418 of that EVJD were at first sight acceptable as a factual assertion of that task for the purposes of an equal value claim, as long as it was in fact a responsibility of a marshaller to monitor loading bays for overcrowding.

[559]We found no reference in the documents before us relating to the work of the comparators to overcrowding as such. There were references to “congestion”, but none that we could see that were relevant to the work of a marshaller.

[560]We therefore asked ourselves to what extent the evidence of the respondent’s managers supported what was said in paragraphs 6.418-6.423 of the EVJD for Mr Davis. Only Mr Evans gave evidence on what was said in those paragraphs, and his witness statement contained only this passage on the matter. ‘Dealing with Overcrowded Loading Bays (“Double Baying”) 219 [ED 6.419 & 6.420] I confirm that these paragraphs are accurate. 220 [ED 6.421] Ernie was responsible for (i.e., in charge of) re-organising the Loading Bay grid in such a way that the Cages were clearly grouped according to the load they were allocated to. Wherever possible, he also had to create enough space so that all Cages, irrespective of the load they were allocated to, could all be accommodated safely within the same Loading Bay but without mixing different loads. 221 [ED 6.423] I confirm that this paragraph of the EVJD is accurate.’

[561]Mr Evans did not explain in paragraph 220 of his witness statement how Mr Davis came to be “responsible for (i.e., in charge of) re-organising the Loading Bay grid in such a way that the Cages were clearly grouped according to the load they were allocated to.” However, there was no reason to doubt the assertion that it was an additional responsibility of Mr Davis, so we accepted the factual assertion in paragraph 6.418 of the EVJD for him that it was such a responsibility.

[562]We agreed with the claimants, however, that the content of paragraphs 6.419 and 6.420 was surplusage, in that they referred to things which were not in issue at a stage 2 hearing.

[563]As for paragraph 6.421, its original wording was in our judgment apt.

[564]Paragraph 6.423 was helpful in so far as it referred to the issue of frequency, but unhelpful in so far as it referred to the issue of the weight of cages moved. That was because they were moved by using MHE, so their weight was irrelevant. In addition, the task of moving them was no different from the task of moving any other UOD using MHE. Case Numbers: 3304495/2018 & others 525 Full cage restacking; paragraph 6.426 of the EVJD for Mr Davis

[565]The work of a loader included the full restacking of a badly-loaded cage. That is a task to which we refer in paragraphs 58 and 485 above. The fact that it was done by Mr Davis “at least once or twice per night shift” for “up to 10 minutes” was therefore the only relevant factual assertion in paragraph 6.426 of the EVJD for him. That fact was agreed, we saw. Unloading UODs from overweight trailers; paragraphs 6.427-6.434 of the EVJD for Mr Davis

[566]We saw that the section of Mr Davis’ EVJD which concerned the unloading of UODs from overweight trailers described work which was in almost all respects of precisely the same sort as that which was done by a loader except and to the extent that Mr Davis had to exercise some judgment in deciding which UOD(s) to remove. We doubted, however, that there might be a need to remove (as it was asserted in paragraph 6.428; that paragraph was accepted by the claimants) “2.5 tonnes”. That was not least because it was said in (for example) paragraph 7.17 of the EVJD for Mr Hornak that the average weight of an assembled standard cage was 302kg. In paragraph 7.17 of the EVJD for Mr Davis, it was said to be 292kg. Thus, 2.5 tones was over eight standard cages, and we rather doubted that a marshaller would have to remove the weight of eight standard cages from a trailer.

[567]In any event, the parties agreed some aspects of the section on unloading overweight trailers in the EVJD for Mr Davis. It was, however, objected by the claimants that there was “no evidence” in support of the assertion in paragraph 6.427 of that EVJD that it was part of the work of Mr Davis to remove UODs from overweight trailers. That paragraph was supported by paragraph 223 of the witness statement of Mr Evans. The content of that paragraph was characterised by the claimants as “just a bare assertion”, but that was in our view an insupportable assertion. The paragraph contained evidence in the form of the words “[ED 6.427] I confirm that the contents of this paragraph are accurate”, but it was flimsy. Nevertheless, there was nothing to counteract it and no reason to doubt it. We therefore accepted it. The fact that the content of paragraph 6.428 of the EVJD for Mr Davis was agreed was, however, for the reasons stated in the preceding paragraph above, problematic. However, if it was possible to unload the UODs in question using MHE, then the number of UODs which needed to be removed was not important. We thought that it was not just possible but likely that the marshaller would use MHE for the task. That was both because it was the obvious thing to do and because of what was said at the start of column 4 of D1/3/17, which was this: “When loading using MHE, the Loader must check route is clear before moving, must sound horn each time he exits the trailer and always looks in the direction of travel.” Paragraphs 6.435-6.442 of the EVJD for Mr Davis; working at Magor Trunk Case Numbers: 3304495/2018 & others 526

[568]We saw that in paragraph 3.37 of the EVJD for Mr Davis it was said that “[t]he work [which he did at Magor Trunk] differed from his work at Magor DC as the job holder travelled to the waiting lanes using a Loading Truck, located the correct UODs to load and transported them to the Goods Out Bays himself” and in paragraph 3.35 of that EVJD that the work consisted of “both unloading and loading duties”.

[569]That sounded rather like the work which Mr Davis did at Magor DC. In any event, given that Mr Davis did not personally lift and move “Pallets, MUs or Dollies” (since he used MHE to lift and move them), the question whether or not 80% of the UODs loaded by him at Magor Trunk were “Pallets, MUs or Dollies” (which was the subject of paragraph 6.442 of the EVJD for him) did not need to be determined by us.

[570]As for the impact of Mr Davis working with a partner all the time at Magor Trunk, even when loading a single deck trailer, that was in our view unlikely to be relevant for present purposes, but if the IEs disagree then they can take into account the claimed fact (asserted in paragraph 6.441 of the EVJD for Mr Davis) that he “built working relationships with his loading partners”. The work of the fresh DC comparators

Introduction

[571]The work of the fresh DC comparators differed from that of the ambient DC comparators only in the following ways.571.1 When assembling cages, the comparators in the fresh DC drove pallets round to locations in the DC at which they deposited packaged products in cages. In ambient DCs, the cages were driven round and packaged products were collected from pallets and put into the cages.

571.2 The comparators in fresh DCs worked in a temperature-controlled environment, in sections of the DC which were intended to be kept at +1 and +12 degrees centigrade respectively, which involved having to negotiate roller shutter doors between the two sections.

[572]In addition, as we understood it, the average weight of UODs was less in a fresh DC than in an ambient DC. Whether that was relevant was not clear to us, so we regarded it as capable of being material, and therefore we concluded that if our understanding about that average weight was correct, then that average weight was a matter for the IEs to take into account if they thought that it was relevant. Loading in a fresh DC as stated in the EVJD for Mr Pratt Introduction Case Numbers: 3304495/2018 & others 527

[573]The job of loading in a fresh DC differed from the job of loading in an ambient DC only in that the products loaded in a fresh DC were loaded into refrigerated compartments on the vehicle in question. We refer to that difference in paragraph 92.1 above. We refer to other differences between the task of loading in the two kinds of DC in the rest of paragraph 92 above, although in some places we refer to a document which was stated to apply to fresh DCs and then say why we found that its content was applicable also to ambient DCs.

[574]We add that the terms of the EVJD for Mr Pratt (who was the only one of the fresh DC comparators who did loading) relating to loading were either the same as, or very similar to, those which were in the EVJDs for Mr Hornak, Mr Macko and Mr Davis.

[575]We therefore refer below in this section only to those disputes in regard to the EVJD of Mr Pratt in so far as it related to loading which had not already been dealt with by us, ignoring for this purpose minor differences in the text. The EVJD for Mr Pratt in so far as it related to loading Paragraph 6.98 of the EVJD for Mr Pratt: an overview of what loading in a fresh DC involved

[576]We thought that paragraph 6.98 of the EVJD for Mr Pratt was helpfully informative as an overview of the things that a loader had to take into account when planning a load at a fresh DC. However, only the final two factors (namely (e) and (f)) were additional as compared with loading in an ambient DC. Having said that, it would in our view have been in one sense easier to plan a load in a fresh DC, if only because there would have been even less room for deviation from the obvious course to follow in relation to the placing of the UODs. That was because if, say, two chambers were used, then the placement in general terms of the load was simplified in that part had to go in one chamber and the other part in the other chamber, so that it might approximately halve the number of questions arising about placement. Paragraphs 6.104 and 6.218-6.227 of the EVJD for Mr Pratt; condensing UODs

[577]There was more detail in paragraph 6.104 of the EVJD for Mr Pratt than in paragraph 6.111 of the EVJD for Mr Hornak, but they both related in substance only to the question whether or not a loader was required to consider whether to condense cages, i.e. combine the contents of more than one cage. Paragraph 6.111 of the EVJD for Mr Hornak stated simply that he was “required to maximise load efficiency i.e., to ensure that the maximum amount of Stock was contained in the load (Condensing).” In paragraph 6.104 of the EVJD for Mr Pratt, this was said: “The job holder was required to maximise load efficiency i.e., to ensure that the maximum amount of Stock was contained in the load (see paragraphs 6.218 to 6.227 on Condensing UODs). It was for the job holder himself to determine whether and if so, how to do that.” Case Numbers: 3304495/2018 & others 528

[578]Mr Pratt was cross-examined on the impact of D9/580, to which we refer in paragraph 17.24 above. Of course Mr Pratt could not disagree with what was said in D9/580, and if he had disagreed with its contents then we would have been very surprised. In any event, the key part of it for the purpose of assessing whether or not there was any discretion on the part of a loader about whether to condense and how to do so, was in our view the third bullet point in the first box on page 1, which was in these terms. “Units of Delivery, half-full or less are to be condensed or to have other Units of Delivery condensed onto them.”

[579]Thus, there was no discretion at least where a UOD was half-full or less. In addition, as Mr Pratt was forced to agree in cross-examination (as recorded on pages 148-149 of the transcript for day 29),(1) it was said in the first bullet point in row 2 on the first page of D9/580 that “Warehouse Managers must ensure that partially full cages are condensed prior to being loaded”, and

(2) the other bullet points in that row all pointed towards it being the responsibility only of a manager to ensure that all possible condensing was done. It was also clear from that row that the condensing had to be done using the AMC.

[580]There might have been scope in some cases to take the contents of a UOD which was more than half-full and distribute them between other UODs destined for the same store as long as (as stated in the sixth and final bullet point in the first box of page 1 of D9/580) heavy items were not put on top of light ones. There was room for error in that regard in that row 13 on the second (and final) page of D9/580 was in these terms. “Any Units of Delivery which are not able to be condensed and are left off must be scanned and moved to the designated Late Cages area at the end of the loading process”.

[581]That was, as far as we were concerned, a sufficient and comprehensive statement of what was involved in deciding whether to condense UODs, both at a fresh DC and an ambient DC.

[582]We add that if we were wrong in coming to that conclusion, then the resolution of the disputes between the parties on the factual assertions in paragraphs 6.218-6.227 of the EVJD for Mr Pratt was in our view unlikely to affect the assessment by the IEs of the value of the work of a loader. In any event, we now record that we accepted the claimants’ submissions on all those disputes. Thus, we accepted their proposed words as recording accurately the factual situation described in those parts of those paragraphs of the EVJD which were disputed. Having said that, it appeared that the disputes were not about the underlying facts, but, rather, about additional things such as whether or not something was important (as asserted in paragraph 6.225 of the EVJD). Case Numbers: 3304495/2018 & others 529 Paragraph 6.113 of the EVJD for Mr Pratt: placement of pallets

[583]We doubted that the precise way in which a loaded pallet could be loaded onto a trailer was material. What was material was the fact that there was a need to exercise some judgment in that regard and that (as asserted by the respondent and not disputed) a loader might use an empty pallet on its side to fill any gaps. The latter process would necessarily involve the loader in moving a pallet by hand, the impact of which for present purposes we leave it to the IEs to assess. Paragraphs 6.117- 6.135 of the EVJD for Mr Pratt: possible mixing of UODs

[584]We agreed with the claimants that the content of paragraph 6.117 of the EVJD for Mr Pratt was incorrect in so far as it implied that there was much room for discretion in the placing of UODs on a trailer. For example, at the top of D9/393/5, this was said. “When loading dollies and merchandising units ensure that:• single dollies/merchandising units are loaded between cages that is, cage – dolly/merchandising unit – cage;

• up to four dollies/merchandising units can be loaded in a row

• dollies/merchandising units are never loaded in the final row”.

[585]Having said that, we could see that there was a need to decide where to put the UODs, even if in most cases it would be obvious to the loader where in the trailer the UODs would need to go at least in general terms, if only because of the need to do what was described by way of weight distribution at pages 4-5 of D9/393.

[586]Paragraphs 6.118-6.135 of the EVJD for Mr Pratt contained merely other ways of saying what we have just stated, i.e. in the preceding paragraph above, and therefore added nothing material. Collecting UODs; paragraphs 6.136-6.138 of the EVJD for Mr Pratt

[587]We saw that the task of collecting UODs for loading was driven by the AMC. We concluded in the light of that fact and because we preferred the more straightforward text proposed by the claimants for paragraphs 6.136-6.138 of the EVJD for Mr Pratt, that what the claimants proposed by way of factual findings for the things described in those paragraphs was more apt than the text which was proposed by the respondent. Paragraph 6.141 of the EVJD for Mr Pratt: moving between chambers and through the gateway between them Case Numbers: 3304495/2018 & others 530

[588]We could not see how the precise number of times that Mr Pratt moved between the +1 and the +12 chambers could be material to the IEs’ assessment of the value of the work done by him. Thus, we declined to decide whether it was, as claimed by the respondent, as many as 70, or, as claimed by the claimants, as many as 50 times per shift. If we were forced to decide that question, then we would accept the evidence of Mr Pratt in paragraph 70 of his first witness statement, which was that the number was 50, and prefer that evidence to that of Mr Bates, whose “evidence” on this was in reality an estimate based on certain factual propositions. That “evidence” was in paragraphs 159 and 160 of Mr Bates’ first witness statement. In fact, the “evidence” of Mr Pratt was necessarily an estimate also, but at least he was the person moving between the chambers. Paragraphs 6.142-6.149 of the EVJD for Mr Pratt; using the roller shutter door between the chambers

[589]While this should be apparent from what we say above, the impact of the roller shutter door between the +1 and the +12 chambers is stated sufficiently in paragraph 44 above. For the avoidance of doubt,589.1 that includes the content of the documents to which reference is made that paragraph (44), and

589.2 we rejected the submission of the claimants stated in response to paragraph 6.149 of the EVJD for Mr Pratt that the “SSOWs ... are irrelevant”. Paragraph 6.150 of the EVJD for Mr Pratt: the impact of moving between the +1 and the +12 chambers

[590]We preferred the words proposed by the claimants for paragraph 6.150 of the EVJD for Mr Pratt as a statement of a relevant fact. The words proposed by the respondent for that paragraph were, we agreed with the claimants, in part analytical and evaluative. The impact of the need to move between a +1 chamber and +12 chamber will be a matter for the IEs to decide so far as relevant. Paragraph 6.160 of the EVJD for Mr Pratt; the frequency with which he encountered overheight cages

[591]We agreed with the claimants on the content of paragraph 6.160 of the EVJD for Mr Pratt. The respondent’s objection to us taking into account the evidence of Mr Pratt which showed that what the claimants were saying was right, was that the evidence was given “[i]n response to a closed and leading question (contrary to the medical advice)”. There was no medical advice before us on that issue, in the sense that there was no “advice” from a medical doctor, or even an opinion from one, before us. There was, however, in the bundle a written “cognitive assessment” of Mr Pratt made by a “consultant clinical psychologist and forensic psychologist”, concerning among Case Numbers: 3304495/2018 & others 531 other things (as stated in paragraph 12.6 at page X/2.6/14) the possibility of “interrogative suggestibility”.

[592]In fact, we found Mr Pratt’s evidence to have been given freely and that he both rejected propositions with which he disagreed and did so without any sign of a difficulty in doing so. We add that it would as far as we could see probably be wrong as a matter of principle for a psychologist’s or a medical doctor’s evidence about the mental state of a witness to affect a court’s or a tribunal’s view of the truth of the witness’s evidence. That is clear from what is said in paragraphs 33-12 and 33-13 of Phipson on Evidence. In any event, while we proceeded with great caution in analysing the evidence of Mr Pratt and any other witness in relation to whom it was said by a party that there were reasons for such caution, we found the evidence of Mr Pratt to have been given without any overt indication of any difficulty on his part in declining to accept propositions with which he disagreed. In addition, the evidence given in cross-examination by Mr Bates as recorded on page 25 of the transcript of day 27 was consistent with the factual proposition for which the claimants contended so far as relevant to paragraph 6.160 of the EVJD for Mr Pratt. Thus, we accepted the claimants’ submission on the material factual dispute which was maintained in regard to paragraph 6.160 of the EVJD for Mr Pratt, which was this. “The job holder confirmed in evidence that this [i.e. him encountering over-height cages] did not happen on every load, and that if it had been that often something would have been done about it [i.e. with the assemblers].” Paragraph 6.163 of the EVJD for Mr Pratt: what happened if the forks on a LLOP were “uneven” in height

[593]Paragraph 6.163 of the EVJD for Mr Pratt needed to be set out in its entirety for the dispute that arose from it to be appreciated. “It was up to the job holder to decide which MHE to use. Prior to lifting a Pallet, the job holder checked the condition of the Loading Truck forks for any evidence of uneven height between the forks which could make movement of the Pallet more difficult and potentially dangerous. Where that happened, he used a Ride- On PPT or (if not available or when loading a Double Deck Trailer) a Pedestrian PPT.”

[594]The reference there to a “Loading Truck” was (as was clear from for example paragraph 4.11 of the EVJD for Mr Pratt) to a LLOP. We saw that at D9/476 (to which we refer above, principally in paragraphs 117 and 220) this was said on page 4 (internal pages 6 and 7). “Before using MHE you should check for and ask yourself the following questions: ... Case Numbers: 3304495/2018 & others 532• Load Lifting Forks - Are there any cracks? Are the forks properly aligned? ... Only when you are satisfied that the equipment is safe should you attempt to use it. ... If you think that the equipment is unsafe then you must tell a Warehouse Manager to let them know what is wrong with it so that they can arrange for the equipment to be marked as defective and for it to be repaired.”

[595]So, a loader could not just choose to leave, unreported, a LLOP which he regarded as unsafe. And if the LLOP’s forks were “of uneven height” then they would not be “properly aligned”, so the LLOP would then need to be reported to a manager. And if a LLOP was the first port of call for a loader for moving a pallet, then one would have thought that there was a reason for that.

[596]But even then, D9/476 indicated that a “Ride-On PPT” was the same as, or at least equivalent to, a LLOP. That was because D9/476 referred on page 2 to the persons who should deliver the training referred to in that document (which was stated to relate to LLOPs) as “Experienced operators of the ride-on powered pallet truck/loading truck”.

[597]However, we thought that the key here was what the respondent required loaders to use when moving pallets to (as the heading to paragraph 6.162 of the EVJD for Mr Pratt showed) the loading bay. At page 11 of D9/463 (to which we refer principally in paragraph 104 above), which was internal page 9, in the box in the top half of the page there was a description of what MHE was used for what purpose, and it seemed from that box and the text on the preceding page (namely “we have a number of different types of MHE – each designed to do specific jobs”), that only a “Loading Truck” would be used for “trailer loading”. The “Ride-on Powered Pallet Truck” was said in the box in the top half of D9/463/11 to be used for “trailer unloading”, and the entry in that box for the “Pedestrian Powered Pallet Truck” showed that it was to be “used for assembly in Fresh distribution centres.”

[598]We therefore thought that the proposition that a loader would be required by the respondent to use a Pedestrian Powered Pallet Truck to move pallets where a LLOP would be better used to do that, was likely to be true only if there were no LLOP available. So, we doubted that there was any real discretion to be exercised by the loader as asserted in paragraph 6.163 of the EVJD for Mr Pratt. What was clear was that he could not move the pallet without MHE, so that he was required to operate such MHE as was available to do it, and that the precise form of the MHE used was unlikely to affect the IEs’ assessment of the demands on him in doing so. In case Case Numbers: 3304495/2018 & others 533 they disagree with us in that regard, however, then we say now that the respondent required a loader to use the most helpful and easy-to-use MHE which was available, and not to use MHE which was inappropriate to move one or more pallets. Paragraphs 6.166, 6.167, and 6.171-6.175 of the EVJD for Mr Pratt; taking care and acting safely

[599]Given what we say in paragraphs 65-68 of our second reserved judgment (at pages 24-25 above), we saw nothing additional in paragraphs 6.166, 6.167, and 6.171- 6.175 of the EVJD for Mr Pratt in so far as they all referred to the need to take care and act with reasonable skill when transporting products around the DC using MHE. There was one additional fact which might be relevant to the IEs’ assessment of the value of the work of Mr Pratt as a loader, and that was that driving around the Danish Trollies and flower buckets referred to in paragraphs 6.171-6.175 of the EVJD for him might have required even more skill and care than normal. We leave it to the IEs to decide whether that added anything material to the demands place on a loader in a fresh DC. Paragraph 6.180 of the EVJD for Mr Pratt; loading slim line cages

[600]In paragraph 6.180 of the EVJD for Mr Pratt, it was asserted that because of the “narrow design” of slim line cages, “and the fact their wheels would often stick, they were prone to topple over”. The claimants’ submission in response to that, based on what Mr Pratt said in cross-examination, was that “The job holder confirmed that as long as he followed his training, which he did, it would have been difficult to get a slim line cage to topple over.”

[601]That was not how we read the passage of the cross-examination in question (which was at pages 161-163 of the transcript of day 29). That was because the proposition with which Mr Pratt agreed was that “it would have been difficult to get a slim line cage to topple over while you’re moving it a short distance through the trailer”. In any event, the respondent’s position was that a slim line cage was more prone to toppling, which we thought was incontrovertible, and that additional care was therefore required when moving slim line cages. We agreed with the respondent on that point, but the degree of additional care was not clear and in any event whether it was going to affect the IEs’ assessment of the value of the work of a loader was a different question. We observe here that if a slim line cage was more prone to toppling than a standard-sized cage in a DC then it would also be more prone to toppling in a store. As a result, it may be the case that the only thing that the IEs might see as relevant here would be the risk of toppling when a slim line cage was moved using MHE, but that risk would have been mitigated by the steps taken in the manner described in paragraph 227 above in relation to paragraph 6.69 of the EVJD for Mr Jones. Paragraph 6.181 of the EVJD for Mr Pratt; what happened if the loading truck started slipping Case Numbers: 3304495/2018 & others 534

[602]We could not see why paragraph 6.181 of the EVJD for Mr Pratt was included, given paragraph 6.78 of that EVJD, to which we refer in paragraphs 369 and 370 above. Paragraph 6.181 of the EVJD indeed said nothing about the circumstances in which the loading truck started slipping. The truck slipping could be only because of water or other liquid on the floor (which is the situation to which paragraph 6.78 of the EVJD related and with which we deal in paragraphs 364-389 above). Thus, what was said in paragraph 6.181 of the EVJD for Mr Pratt was in our judgment simply repetitious. Paragraph 6.183 of the EVJD for Mr Pratt: the risk of an incline in a trailer

[603]For the avoidance of doubt, we deal with the subject-matter of paragraph 6.183 of the EVJD for Mr Pratt in paragraph 517 above. Paragraphs 6.185 and 6.186 of the EVJD for Mr Pratt: the impact of the cold conditions in which fresh DC loaders worked

[604]We accepted that the fact that a loader in a fresh DC was working in a relatively cold environment would, in some circumstances, mean that the loader might feel the cold more, in the circumstances described in paragraph 6.185 of the EVJD for him, and that that was a relevant condition in which the loader worked.

[605]However the impact on Mr Pratt personally as described in paragraph 6.186 of the EVJD for him was in our view at best only peripherally relevant. That was because we thought that the IEs would know what additional demands would be placed on a person working in a fresh DC with chambers kept at different (relatively low) temperatures. It was also because we thought that that impact would be obvious. Paragraphs 6.187-6.190 of the EVJD for Mr Pratt: the internal lighting in the trailers

[606]We concluded (for the reasons stated in paragraphs 333 and 522 above) that we could not properly take into account lighting conditions in the trailers into which Mr Pratt loaded UODs if the absence of light made it unsafe to work there. That was because we could not see how a failure by the respondent to ensure that its employees could work in sufficient light could properly be taken into account by the IEs or us. In fact, the respondent’s position stated in the first part of paragraph 6.190 (ignoring the respondent’s intended replacement of the words “had to take” by the word “took”) was this. “Whilst it was not the case that the job holder was unable to work safely, his ability to do that was clearly hindered by the lack of light in the rear of the Trailers. This meant that he had to take extra care, including for example, having to focus particularly carefully when looking for potential obstructions or spills to ensure that he was able to identify them.” Case Numbers: 3304495/2018 & others 535

[607]If and in so far as it was permissible for the IEs and us to take into account those lighting conditions, then we saw that the respondent accepted (in its closing submissions in support of paragraph 6.187 of the EVJD for Mr Pratt) that at least “a few refrigerated trailers” had interior lights. It was counter-intuitive (or, perhaps it was better to say, unattractive) for the respondent to submit that there was insufficient light in the trailers, and that the IEs and we should take that into account as a condition in which the work of the comparators was done, while the respondent at the same time recognised that there was scope for that insufficiency to be remedied.

[608]In addition, in bright sunshine, we suspected that there might well be plenty of light in the trailers.

[609]We thought by way of analogy about working in a mine. There, miners would probably normally be expected to have a torch in a helmet, so that wherever they looked, there would be sufficient light, but that there might not be sufficient light to see objects in the way without looking down unless the employer put in sufficient overhead lighting. The cost of putting in sufficient lighting might then be a relevant factor.

[610]Here, the evidence given in cross-examination by Mr Bates, as recorded at pages 27- 28 of the transcript of day 27, included that “there were lights on the bays that ... could be angled to shine in”.

[611]Those considerations led us to conclude that if and to the extent that the amount of light in a trailer could lawfully be taken into account at a stage 2 hearing, the latter evidence had to be taken as showing that the respondent did not require its loaders to work in dim lighting conditions and that it was not part of the work (for the purposes of section 65(6) of the EqA 2010) of any of the comparators who did anything inside trailers in the course of their employment to do it in poor lighting. Paragraph 6.192 of the EVJD for Mr Pratt: tight tolerances in the trailer

[612]We thought that the dispute about the tightness of the tolerances at the sides of a rigid trailer, raised in relation to paragraph 6.192 of the EVJD for Mr Pratt, added nothing to the factual situation as described by us in paragraph 509 above. In any event, we thought that there would be a need for cages to be almost wedged into a trailer in order to minimise the risk of them moving when in transit, so that if only for that reason, it was an inescapable conclusion that there would be tight tolerances at the sides of a trailer. In addition, we thought that the designer of the trailers must have known about the risk (to which paragraph 6.192 of the EVJD for Mr Pratt referred) of the framework to which ratchet straps were attached being bent inwards slightly by the force exerted on the framework by the straps and would be likely to have catered for that risk in the design of the trailer.

[613]We add that if the only result of the tight tolerances was that there was a need for greater care when pushing UODs into a row in the trailer, then that might not affect Case Numbers: 3304495/2018 & others 536 the demands of the work, and might instead relate only to the way in which the work was required to be done. That was because it would merely result in the work being done more slowly, which would reduce the value to the respondent of the work done, and because that seemed to us to be irrelevant at this stage.

[614]Having said those things, we record now that the claimants’ proposed words for paragraph 6.192 were in the circumstances in our view apt to describe the factual background, and, in case they were relevant, we accepted them. Paragraphs 6.194-6.195 of the EVJD for Mr Pratt: the risk of lacerations caused by damaged cages

[615]We have already commented in paragraph 63 of our judgment of 12 July 2023 and in paragraph 483 above on the fact that if damaged cages risked lacerating the hand of Mr Pratt, as stated in paragraph 6.194 of the EVJD for him, then that risk applied to the sample claimants who moved cages. But, as we point out in paragraph 483 above, the respondent did not in fact require loaders to use damaged cages. In any event, by the time of closing submissions, the respondent had accepted (as recorded in the final version of paragraph 6.195 of the EVJD for Mr Pratt) that Mr Pratt’s hands were not lacerated as “[t]he job holder avoided any lacerations to his hands due to wearing protective gloves.” Paragraphs 6.206-6.207 of the EVJD for Mr Pratt: shrink-wrapping of cages

[616]It was clear from for example D9/427, to which we refer in paragraph 92.12 above, that a fresh DC loader might need to shrink wrap cages. That was not the subject of the dispute raised by the claimants in relation to paragraphs 6.206-6.207 of the EVJD for Mr Pratt. Rather, it was the fact that in those paragraphs, the reason for the shrink-wrapping was stated and because cross-reference was made to the AMC Guide. As is clear from what we say in paragraph 77 of our second reserved judgment (at pages 27-28 above), the latter objection could not be sustained as a matter of principle. Having said that, we could not find anything in the AMC guides that were before us about how to shrink-wrap. As for the reason for the shrinkwrapping, that was not relevant if it was stated how often there was a need to shrinkwrap a row of UODs. It was so stated: it was said to be once a month. Accordingly, for different reasons from those relied on by the claimants, we agreed with the claimants that the references to the AMC guide and the reasons for shrink-wrapping stated in paragraphs 6.206 and 6.207 of the EVJD for Mr Pratt should be ignored by the IEs. Paragraph 6.213 of the EVJD for Mr Pratt: the reason why full width bulkhead panels were more difficult to move

[617]Contrary to the submissions of the claimants, we thought that the fact that the full width bulkhead panels had “overlapping fold in side panels” was in fact relevant, if only because it would enable the IEs to assess the extra effort involved in moving Case Numbers: 3304495/2018 & others 537 those panels as compared with moving a single (as opposed to a full width) bulkhead panel. Paragraphs 6.214-6.215 of the EVJD for Mr Pratt; moving a bulkhead

[618]We thought that the content of paragraphs 6.214-6.215 of the EVJD for Mr Pratt added nothing material for present purposes. That was because what was said in those paragraphs was implicit in the factual background, which was shown best by D9/393, D1/3/5 and D9/656, to which we refer in paragraphs 81 and 92.1 above. Paragraph 6.216 of the EVJD for Mr Pratt: setting the temperature of the compartments on a refrigerated trailer

[619]The content of paragraph 6.216 of the EVJD for Mr Pratt was inconsistent with the section entitled “Setting Trailer Temperatures” at D9/393/3. Reference was made in paragraph 6.216 of the EVJD to “pages 50, 51 and 96 of the AMC Guide”, but there was nothing at pages 50, 51 and 96 of D1/2 which appeared to us to detract from what was said at D9/393/3. In any event, we concluded that what was required in this regard was as described at D9/393/3. Overspill; paragraphs 6.228-6.235 of the EVJD for Mr Pratt

[620]The reasons for the “overspill” which was the subject of paragraphs 6.228-6.235 of the EVJD for Mr Pratt (the word “overspill” was used, as stated in paragraph 6.228, to describe the problem of there being more UODs intended to be delivered to a store than could be fitted safely into the trailer which the loader was loading) were stated in paragraph 6.229. The key here was what was involved by way of work for a loader when there was such overspill. Only if giving the IEs and us the reasons for the overspill might assist our understanding of the demands of the work and the relevant conditions in which it was done, could those reasons be relevant. We could not see how those reasons could assist here in that way.

[621]In many cases above, we have for the sake of brevity merely said that we preferred one or other party’s proposed words to describe the factual situation which was the subject of a part of an EVJD. We could have done that with paragraph 6.230 of the EVJD for Mr Pratt. Instead, so that we give to any reader of this document who does not have immediate access to the parties’ submissions a flavour of the kind of dispute that we had to determine, we now state in detail why we preferred the claimants’ case on that paragraph. We add that that paragraph had to be read along with the following paragraphs of the EVJD, so we refer here also to those paragraphs.

[622]Paragraph 6.230 of the EVJD for Mr Pratt was in these terms. “The job holder’s ability to efficiently plan and implement a load was a key factor in minimising such situations, but where such situations did arise, the decision as Case Numbers: 3304495/2018 & others 538 to which UODs should be excluded from the load was at the discretion of the job holder. “

[623]That was opposed by the claimants for the following reasons. “1. There was no load planning in any meaningful sense. 2. There was no ‘discretion’ in any meaningful sense - the job holder just left off whatever would not fit onto the trailer, as long as any priority UODs were included in the load. 3. ‘efficiently’ and ‘key factor in minimising’ are evaluative and/or irrelevant to what happened in practice.”

[624]The claimants proposed instead these words. “When this happened, the job holder would leave off whichever UODs he had not put onto the Trailer except that, if one of those UODs had been categorised by the LPH system as ‘Wave 1’ , the job holder would make sure that that UOD was loaded even if that meant taking off or not loading a different UOD.”

[625]The respondent’s submissions on the paragraph were these. “This is not analysis, evaluation or comment. The correct factual position is found in the [evidence] of JH [{E3/1/20}, paragraph 105], Mr Bates [{E4/1/35}, paragraph 184] and Mr Yates [{E4/23.1/17}, paragraph 82] Mr Bates confirms the matters which SP would consider in determining which UODs would be left behind. Mr Yates states; “I train loaders that if they have to leave product off due to a lack of space, then they should prioritise the short life products (Wave 1). If there is insufficient space for the +12 UODs that are available, then it is for the loaders to determine which Wave 2 (longer life products) are prioritised.” Mr Bates states the suggested alternative wording does not properly reflect the things [JH] considered when deciding which UODs to leave behind; and confirms the matters which SP would consider in determining such”.

[626]Paragraph 6.233 of the EVJD for Mr Pratt (which was agreed) was simply that “Where he identified that a load was at risk of overspill, the job holder ensured that Wave 1 UODs were given priority.” That of course detracted from the general proposition that the loader had a discretion in deciding what not to put in a trailer.

[627]Waves 1 and 2 were defined in paragraph 6.231 of the EVJD for Mr Pratt, which was also agreed. Mr Pratt’s knowledge of those waves was the subject of paragraph 6.232 of the EVJD for him, and it was agreed by the claimants except to the extent that it stated that “If needed, he used his AMC to identify whether a UOD contained Case Numbers: 3304495/2018 & others 539 Wave 1 stock.” That proposition was opposed by the claimants on the basis that by scanning a UOD the loader could identify whether or not a UOD contained Wave 1 products, “although he became aware of the Wave categorisation of all Products without the need to refer to the AMC (which confirmed the relevant Wave) and identified the relevant Wave simply by looking at the UOD content.” We had some difficulty seeing why there was any factual dispute about paragraph 6.232 in those circumstances, but there was another factor here which was relevant. That was that there would have been no need for paragraphs 6.231 and 6.232 if the parties had instead agreed that the training materials in the hearing bundle showed that the relevant “Wave” was shown by a scan of the label on a unit. By way of example D9/251 (to which we refer in several places above, but principally in paragraph 27) had, on page 7, pictures of the screen on an AMC resulting from a scan of a case holding Gala apples, and those apples were stated on the screen to be “Wave: 1A”. That therefore showed that Wave 1 products would be easily ascertainable by using the AMC if the loader was unsure (which was unlikely) to what wave a cage belonged.

[628]Mr Bates’ evidence in relation to the discretion claimed by paragraph 6.230 to exist was in paragraphs 184 and 185 of his first witness statement, and the latter contained the only explanation which assisted us. Paragraph 185 was in these terms. “In relation to [S6.230], the suggested alternative wording does not properly reflect the things Shawn considered when deciding which UODs to leave behind; even with the caveat in relation to ensuring all Wave 1 products were included in the load, it isn’t right to say that he would just leave off whatever he hadn’t already loaded. We expect them to consider the things described in [S6.234] in particular, making sure that all fast selling products go on the trailer and that there is enough of a spread of products to avoid the store being left in a position where it has an entire section or display left empty, which does not look good to customers (see [S6.235]).”

[629]The factors referred to in paragraph 6.234 of the EVJD for Mr Pratt were agreed. They made sense to us, and we could therefore see why they were agreed. For the sake of clarity, we now set out the terms of paragraph 6.234 as it stood by the time of closing submissions. “When determining which Wave 2 UODs should be removed from the load, the job holder took into account factors such as preferring foodstuffs over flowers/plants, as well as considering the perishable nature of certain Products. The job holder also decided whether to reduce the number of some or all Product types included in the delivery in order to ensure that the store or stores (in the case of a multi-store delivery) received the widest possible range of different Products and that customers were not left without any Products of any particular type.” Case Numbers: 3304495/2018 & others 540

[630]Paragraph 6.235 of the EVJD for Mr Pratt was in these terms: “The decisions the job holder made in relation to what to include in the final load therefore directly impacted upon the availability and range of Products for the stores and the customer.” That was so general as to be of no relevance or value here. So, the only material paragraph in the sequence in question relating to the discretion for which paragraph 6.230 contended was paragraph 6.234. That paragraph was informative, but it was agreed.

[631]We therefore concluded that paragraph 6.230 of the EVJD for Mr Pratt said nothing material, in that it added nothing to what was in paragraph 6.234, and the claimants were right in saying that the respondent had asserted that there was a meaningful discretion to be exercised by a loader, when there was in reality room only for the exercise of discretion in the manner stated in paragraph 6.234. In addition, the agreement of the terms of paragraph 6.233 meant that the claimants’ proposed words for paragraph 6.230 (which we have set out in paragraph 624 above) were repetitious.

[632]In those circumstances, we concluded that paragraph 6.230 was unnecessary in that it said nothing material. In short, it was surplusage. Paragraph 6.236 of the EVJD for Mr Pratt: what happened when there were “Multiple Loads [going] to a Single Store”

[633]Paragraph 6.236 was about what happened if “multiple deliveries were dispatched from the DC to a single store during a single night shift” and one or more UODs “from the same Aisle location for that store had already been recorded as collected by another loader”. Cross-reference was made by the respondent in that paragraph to page 60 of the AMC Guide. The claimants opposed that cross-reference in the same way as they did in all other such cross-references, namely on the basis that the AMC Guide was “irrelevant”. For the first time when going through the parties’ contentions about the work of a comparator, we found that the cross-reference might have been apt if it were read as a cross-reference to the AMC guide on loading which was sent to us on 2 May 2024. (D1/2/60, to which paragraph 6.236 of the EVJD for Mr Pratt ostensibly referred, was about condensing and had nothing relevant in it.) That was because page 60 of the full AMC guide to loading (internal page 3-18) appeared to be relevant. It was about “available UODs”. Whether it added anything material to what was said in paragraph 6.236 of the EVJD for Mr Pratt was, however, not clear to us.

[634]There was another dispute about the content of paragraph 6.236 of that EVJD, and it was about the frequency with which the circumstances described in that paragraph occurred. The respondent said that it was about once a month. The claimants contended that it was instead “Around twice during the whole of the Relevant Period – i.e. around once every three years” that “multiple deliveries were dispatched from the DC to a single store during a single night shift.” Case Numbers: 3304495/2018 & others 541

[635]Here, we thought that the frequency with which “multiple deliveries were dispatched from the DC to a single store during a single night shift” where one or more UODs “from the same Aisle location for that store had already been recorded as collected by another loader”, was irrelevant in itself. However, it was relevant that a loader had to be alert to the possibility of it happening, and had to know what to look out for if it did happen. And, indeed, if the frequency were as the claimants asserted, then that meant that it was harder for the loader to remain alert to the possibility than if it were a relatively frequent event. But, in conclusion, the factor which in our judgment needed to be taken into account by the IEs and us in relation to what was said in paragraph 6.236 of the EVJD for Mr Pratt was the need to be alert to the possibility, not the number of times it happened, and the reason why there was that need was because it was a real as opposed to a fanciful possibility. Paragraph 6.237 of the EVJD for Mr Pratt: what happened when there was another load being prepared for the same store

[636]In fact, paragraph 6.236 of the EVJD for Mr Pratt may well have been intended to be read simply as an introduction to paragraph 6.237 of that EVJD, where it was said that when the circumstances described in paragraph 6.236 occurred, “the job holder was free to liaise with the loader responsible for loading the additional Trailer(s) destined for the same store to agree with him how best to allocate the +1 and +12 UODs to be delivered to that store between the two or three loads”. In fact, there was nothing about that on internal page 3-18 of the AMC guide to loading (to which we refer in paragraph 633 above).

[637]In any event, the claimants said that the words which we quote in the preceding paragraph above from paragraph 6.237 of the EVJD for Mr Pratt were an overcomplication. The claimants’ proposed replacement words for paragraph 6.237 in its entirety were these. “When that happened, the job holder was able to speak to the loader who was loading the additional Trailer(s) and they could decide who would collect from which aisles, eg one would collect all the +12 UODs and the other the +1 UODs.”

[638]However, there was in paragraph 6.237 of the EVJD for Mr Pratt a sentence stating the reason for the two loaders speaking to each other, and the claimants opposed it on the basis that it was “Analysis /evaluation/comment” and therefore “Irrelevant”. In fact, the sentence was of some value in that it showed why the two loaders might liaise and therefore what they might usefully discuss and agree. That sentence was as follows. “This was done to ensure that the collection and loading of those UODs was as efficient as possible, bearing in mind the location of the Trailers in the Bay relative to where the UODs were being held within the Warehouse, whilst keeping in mind the need to ensure that the weight distribution within each of those loads could be managed effectively.” Case Numbers: 3304495/2018 & others 542

[639]There was nothing as far as we could see in the training materials that related to the situation. In those circumstances, we found the words proposed by the respondent for paragraph 6.237 of the EVJD for Mr Pratt to be of some slight assistance by way of explanation of the factual background, but we also found that the cross-reference in paragraph 6.236 of that EVJD to page 60 of the AMC Guide was not helpful. The section in the EVJD for Mr Pratt headed “Closing and Sealing Single Deck Trailers”: paragraphs 6.238-6.271 Paragraphs 6.238-6.241 of the EVJD for Mr Pratt

[640]We now revert to stating our conclusions in a more succinct way. Paragraphs 6.238- 6.241 of the EVJD for Mr Pratt were disputed only in part.

[641]Here, we found accurate cross-references to the relevant appendix to the EVJD containing extracts from the AMC Guide (D1/2). Both cross-references in paragraphs 6.238 and 6.241 were apt, and informative. They were therefore relevant.

[642]As for the rest of the content of paragraphs 6.238-6.241 of the EVJD for Mr Pratt, we saw that there was a detailed description of the task of “Completing and Closing a Load” at D9/149/11-13 and (the updated version) at D9/141/12-14. We refer to those documents principally in paragraph 85.1 above. The tasks stated in rows 72-79 and rows 76-83 respectively at D9/149/11 and D9/141/12 were, we thought, rather better and more helpfully stated than the content of paragraphs 6.238-6.241 of the EVJD for Mr Pratt, albeit that the precise manner in which the AMC was operated was not stated in those rows, so that they were helpfully amplified by the references to the AMC Guide (i.e. D1/2) if, that is, the IEs needed to know that much detail. We doubted that they did. Rather, we thought, the IEs needed to know only that there was a sequence to follow on the AMC when closing a load on a trailer physically, and that that sequence was not straightforward, requiring the loader to pay close attention to the AMC’s screen. Paragraph 6.260 of the EVJD for Mr Pratt

[643]Paragraph 6.260 of the EVJD for Mr Pratt was repetitious in that it referred to the need of a loader to “balance heavy UODs (including Pallets and MUs) both towards the centre of the Trailer as well as laterally”, and that need was the subject of the training materials to which we refer in paragraphs 432-439 above. We add for the avoidance of doubt that we could see no difference between the need to balance an ambient DC delivery and the need to balance a fresh DC delivery, at least in principle. Paragraph 6.264 of the EVJD for Mr Pratt Case Numbers: 3304495/2018 & others 543

[644]The next potentially material difference between the parties concerned paragraph 6.264 of the EVJD for Mr Pratt. The claimants’ proposed amendments relied on the applicability of the AMC to the task. The evidence given in cross-examination, as relied on by them (it was given by Mr Pratt as recorded on pages 183-184 of the transcript of day 29 and Mr Bates as recorded on pages 176-178 of the transcript of day 26 and pages 37-38 of the transcript of day 27) showed that they were right. The AMC drove, or at least in large part directed, the process of loading where there was a multi-store delivery. Paragraph 6.270 of the EVJD for Mr Pratt: deliveries to more than two stores

[645]In our view the claimants wrongly objected to the proposition in paragraph 6.270 of the EVJD for Mr Pratt that a loader had “no alternative but to set both Chambers at +1 and use shrouds or shrink wrap to protect certain Products, if included in that load”. That objection was in these terms: “‘had no alternative’ exaggerates what the facts of what the job holder did [were]”. That was an odd objection, in our view. If a loader had no alternative to doing something then he had no discretion. In many places the claimants objected to the proposition that a comparator had a discretion. Here, it was said that the loader had no discretion. In any event, we could not see why it was asserted that the content of paragraph 6.270 exaggerated the facts of what Mr Pratt did.

[646]We observe here that(1) in our view a loader had only limited discretion, but in any event where he had any kind of discretion, the key question was whether there was any “decision-making” within the meaning of section 65(6) of the EqA 2010 to be done by the loader, and

(2) the latter question was one for the IEs to consider in the first instance.

[647]The other disputed parts of paragraphs 6.238-6.271 of the EVJD for Mr Pratt (i.e. ignoring for this purpose the objections to the references to the AMC Guide) were about minor matters of a sort which we had already had to make a number of determinations. Having said that, we now record that we agreed with the claimants’ submissions on those disputed parts. Shrouds and shrink-wrapping: paragraph 6.273 of the EVJD for Mr Pratt

[648]Paragraph 6.272 of the EVJD for Mr Pratt referred to the need for a shroud where bananas were put into a +1 trailer. Paragraph 6.273 was an explanation of the reason for using a shroud in those circumstances. Paragraph 6.272 was agreed. As a result, opposition to paragraph 6.273 was difficult to understand. However, the explanation in both paragraphs of the work was less informative than the content of D9/389, to which we refer in paragraph 92.9 above, which stated comprehensively the obligation to use shrouds (in regard to which, of course, there was no discretion) and made clear the reason for the use of shrouds. Given that factor, we thought that D9/389 should be regarded as a sufficient statement of the obligation to use shrouds Case Numbers: 3304495/2018 & others 544 (which, we saw, the parties agreed, as stated in paragraph 6.274 of the EVJD for him, Mr Pratt did “about once or twice a week”). Loading double-deck trailers: paragraphs 6.278-6.315 of the EVJD for Mr Pratt

[649]We deal with loading a double-deck trailer in an ambient DC in paragraphs 534-541 above. The only differences between loading in an ambient DC and in a fresh DC related to the fact that the double-decker trailers were refrigerated.

[650]Loading a double-decker trailer in a fresh DC was the subject of D9/421, to which we refer in paragraph 92.8 above. It was in the same terms as D9/382, which was the basis for our findings in paragraphs 534-541 above, except that at the bottom of page 4, D9/421 referred to “frozen food units of delivery”, “+1 units of delivery” and “+12 units of delivery”, and stated what was required when loading those UODs.

[651]There were considerable differences in the text, but not as far as we could see in the substance, of the sections of the EVJDs for Mr Hornak and Mr Pratt relating to loading a double-deck trailer. For the sake of brevity we therefore merely say here that the demands of a loader when working with a colleague in loading a doubledecker trailer were as stated in D9/421 and that any dispute which the IEs see as being about something relevant to their role in this case about any part of paragraphs 6.278-6.315 of the EVJD for Mr Pratt should be read in the light of(1) what is said in D9/421, and

(2) what we say in paragraphs 534-541 above. If the IEs believe that there is a need for us to determine any dispute about paragraphs 6.278-6.315 of the EVJD for Mr Pratt in that (1) they believe it to be about something material and (2) they cannot see how it had to be resolved in the light of what we say in paragraphs 534-541 above, then they can apply to us for that determination under rule 6(3) of the EV Rules. The “Burden of Responsibility”: paragraphs 6.316-6.330 of the EVJD for Mr Pratt

[652]What we say in paragraph 542 above applies here also. We add that the fact that (as stated in paragraph 6.324 of the EVJD for him) Mr Pratt was taken to task in 2017 for mistakenly placing a dolly containing meat in a +12 chamber, was irrelevant here. Mr Pratt’s work of assembly

Introduction

[653]As with the work of assembly in an ambient DC, the work of assembly in a fresh DC was best seen primarily by reference to the training materials. We refer to those materials in paragraph 17 above. The manner in which we resolved the disputes maintained in relation to paragraphs 6.331-6.468 of the EVJD for Mr Pratt Case Numbers: 3304495/2018 & others 545

[654]It will be apparent from what we say above that we thought that the EVJD for Mr Pratt should have been written with those materials in mind and on the basis that those materials stated definitively at least most of the elements of the task called by the respondent “assembly”.

[655]Regrettably, because of the way in which the EVJD was written and the way in which the parties had disputed its contents, we found ourselves obliged to deal with many factual disputes which should in our view not have arisen, or been maintained. We have already dealt with the disputes raised and maintained by the parties in relation to the task of assembly in an ambient DC, but because the task of assembly in a fresh DC was in some respects different, we could not just say that the disputes maintained by the parties in relation to assembly in a fresh DC were to be seen as being resolved in the same way as those which we resolved in relation to assembly in an ambient DC. We therefore now turn to the disputes which were maintained in relation to the work of assembly as carried out by Mr Pratt and which we concluded should be resolved by us expressly. Undertaking assignments: paragraphs 6.332-6.338 of the EVJD for Mr Pratt Paragraph 6.332; the summary of the work of assembly

[656]We agreed with the claimants that the word “continuous” in paragraph 6.332 of the EVJD for Mr Pratt was incorrect. The summary in that paragraph of the work of assembly was sufficient and more accurate without that word. Paragraphs 6.333 and 6.335-6.338 of the EVJD for Mr Pratt; congestion; the MHE Highway Code and related matters

[657]We also agreed with the claimants in regard to paragraph 6.333 of the EVJD for Mr Pratt: the final sentence of that paragraph was misleading and unnecessary. The number of operatives driving around will have varied from time to time, and the demands of the work will have varied accordingly. That was obvious, and was in fact spelt out in paragraph 6.335 of the EVJD, probably unnecessarily, including by saying that Mr Pratt had to comply with the MHE Highway Code. We have already referred to the MHE Highway Code and related issues in paragraphs 106-107 above. The proposition, maintained in paragraph 6.338 of the EVJD for Mr Pratt, that he “had to make repeated 180-degree twists of his body from side to side and also turned his whole body whilst moving Pallets around the Warehouse to ensure that he was not going to collide with any Cages or other UODs on either side of the Assembly Aisle or with other Operatives and/or their MHE”, was, we agreed with the claimants, an exaggeration. We thought that the physical demands of driving for example a loaded LLOP in a DC would be clear to the IEs. Paragraph 6.334 of the EVJD for Mr Pratt; the weight of a Pedestrian Powered Pallet Truck Case Numbers: 3304495/2018 & others 546

[658]Similarly to what we say in paragraph 281 above about the irrelevance of the weight of units carried on a LLOP used by an ambient DC assembler, we thought that the weight of a Pedestrian PPT, whether with our without an average load (which was the subject-matter of paragraph 6.334 of the EVJD for Mr Pratt), was irrelevant for present purposes. Paragraph 6.339 of the EVJD for Mr Pratt: the effect of logging onto the AMC

[659]Assuming (which we rather doubted) that the content of paragraph 6.339 of the EVJD for Mr Pratt described something relevant for the purposes of section 65(6) of the EqA 2010,we thought that the claimants’ proposed words for that paragraph sufficiently stated the impact of logging onto an AMC and pressing the “next assignment” button. Paragraph 6.340 of the EVJD for Mr Pratt: the proportion of time spent in the +1 chamber and the +12 chamber

[660]We accepted what the claimants said about the proportion of time spent in the +1 chamber stated in paragraph 6.340 of the EVJD for Mr Pratt, which was that there was no objective evidence to support the assertion that it was either 63% (which was the figure in the first four versions of that paragraph) or (as asserted in the final version of the paragraph) 75%. In fact, it might well have helped Mr Pratt to spend most of his time in one or other chamber, as he would have needed to adapt to the different temperatures less frequently than otherwise.

[661]In any event, we thought that it was sufficient for present purposes for the IEs to know that the JH would have had to move between the two chambers, and the frequency with which he would have to do so. That frequency was agreed, but on the basis of what objective evidence we could not see. It too was the result of a guess, we thought, but since the figure was agreed and there was nothing to undermine it, we accepted that it was as agreed, namely four to five times per shift.

[662]We add that we failed to see the relevance of the word “night” before “shift” in paragraph 6.340 of the EVJD for Mr Pratt. Voice-guided assembly: paragraphs 6.341-6.344 of the EVJD for Mr Pratt

[663]Contrary to what the claimants submitted, we thought that the use of the word “discretion” in paragraph 6.343 of the EVJD was helpful. That was because it showed that an assembler could choose whether or not to use the voice-guiding function on an AMC. Thus, an assembler who found it helpful to use that function could choose to use it, and vice-versa. We suspected that paragraph 6.344 was irrelevant in the light of that finding, but we concluded that if the IEs find its content helpful, then they can take it into account. Case Numbers: 3304495/2018 & others 547 Collecting pallets and related matters: paragraphs 6.345-6.351 of the EVJD for Mr Pratt Paragraph 6.345 of the EVJD for Mr Pratt; overview and use of the roller shutter door

[664]We refer in paragraphs 44 and 589 above to the impact of the roller shutter door between the +1 and the +12 chambers. The extract which we set out in paragraph 44 above and a picture in the document at D1/3/12 from which it was taken showed that even if an assembler were pulling a Pedestrian PPT, he would have to (as the parties had agreed by the time of closing submissions) use the roller shutter door and could not walk through the (ordinary, hinged) door to the side of the shutter door. Paragraph 6.346 of the EVJD for Mr Pratt; the need for care when putting the forks of a Pedestrian PPT under a pallet

[665]We agreed with the respondent that the word “carefully” was (contrary to the claimants’ submissions) not inappropriately used in paragraph 6.346 of the EVJD for Mr Pratt. That was because it was obvious that some care would be required when putting the forks of a Pedestrian PPT below a pallet but also because the SSOW relating to the related situation of the use of a LLOP to which we refer in paragraph 17.6 above, namely D9/193, referred in column 6 to the need to take “great care not to clip the wheels on dropped off roll cages (particularly when dropping off slim line cages) with the forks”. Paragraph 6.356 of the EVJD for Mr Pratt; what mental arithmetic involved

[666]We thought that the explanation in the second sentence of paragraph 6.356 of the EVJD for Mr Pratt of what mental arithmetic involved was unnecessary. However, the sentence was helpful if and in so far as it showed that there might be a need to multiply a two-digit number such as 24 by a two-digit number, such as 15. Whether mental arithmetic would be required was not clear, however, given that an electronic calculator might usefully have been made available, or simply permitted, by the respondent. We return to this issue in paragraphs 671 and 762 below. Paragraph 6.366 of the EVJD for Mr Pratt: pallet breakdown

[667]The claimants’ objections to the content of paragraph 6.366 of the EVJD for Mr Pratt were not based on evidence but, rather, the lack of it, and deduction. Their submissions were that667.1 there was no evidence that the assembler breaking down pallets for the purpose of putting their contents on cages for a particular store that could not receive pallets printed the labels for the cages himself, and Case Numbers: 3304495/2018 & others 548

667.2 the product would not be of “various weights” as it appeared that paragraph 6.366 of the EVJD for Mr Pratt related to a pallet containing only one product.

[668]Those submissions were apparently well-founded, but rows 41-49 at pages 6-7 of D9/154 (to which we refer in paragraph 17.12 above) and the same rows on pages 7- 8 of the updated version, at D9/575, showed that if a new cage was needed, then there was a need for the assembler to print out a label. In addition, other parts of both versions of that document showed that there might be more than one product on a pallet. As a result, we concluded that the words of paragraph 6.366 as proposed by the respondent for the EVJD for Mr Pratt were apt, although they were insufficiently informative about the frequency with which the situation arose, or the frequency with which a pallet might contain more than one product. Presumably the frequency stated in paragraph 6.363 of the EVJD for Mr Pratt applied to what was said in paragraph 6.366 of that EVJD. Multi-product pallets: paragraphs 6.367-6.372 of the EVJD for Mr Pratt Identifying products

[669]We found the words proposed by the respondent for paragraphs 6.367-6.369 of the EVJD for Mr Pratt to be a marginally more accurate description of the situation which they described than the words proposed by the claimants. That was because the latter words in our view would, if adopted, have made the factual situation marginally less clear. Similarly, while we saw that the respondent’s amended cross-reference in paragraph 6.367 appeared to be correct if it was read as referring to D1/2/122 (which was in fact page 3.16 of the AMC user guide for picking by line), we did not see that page as being more than marginally illuminating for present purposes.

[670]We were, however, not at all sure that the IEs and we needed to know precisely how the job of an assembler was done when there were multi-product pallets. If they and we did need to know that, however, then it was relevant that Mr Pratt said in paragraph 147 of his first witness statement that paragraph 6.369 of the EVJD for him was “an accurate description of how [he] had to concentrate to ensure [that he properly differentiated between] Products that were different but similar and looked the same from the packaging” and that the need to do that arose “most shifts whenever [he] had a multi Pallet.” Counting the units on a pallet

[671]Whether (as stated in paragraph 6.372 of the EVJD for Mr Pratt) Mr Pratt or any other assembler counted mentally rather than using a calculator was in our view irrelevant. If it is relevant for the IEs to know that arithmetic was required then, if it was in fact so required (which, as we say in paragraph 666 above it might not have been) was, we thought, all that needed to be known by the IEs and us. Case Numbers: 3304495/2018 & others 549 The task of assembly in a fresh DC in general terms; paragraphs 6.373-6.468 of the EVJD for Mr Pratt

Introduction

[672]Many parts of the very detailed factual description in the EVJD for Mr Pratt of what was involved in the task of assembly in a fresh DC were agreed. A number of the parts that were the subject of dispute were also disputed in relation to the work of an assembler in an ambient DC.

[673]We add that some disputes arose in different contexts but were about the same thing. A good example of that was such disputes as were maintained about the task of re-stacking as described in paragraphs 6.188-6.194 of the EVJD for Mr Hornak (to which we refer in paragraph 485 above). That description of the task of re-stacking arose in relation to the task of loading, but it was applicable also to the task of assembly in any kind of DC. It was dealt with in paragraphs 6.421-6.428 of the EVJD for Mr Pratt, in regard to which, in fact, there was little dispute between the parties. Multiple unit assembly; paragraph 6.396 of the EVJD for Mr Pratt

[674]Paragraph 6.396 of the EVJD for Mr Pratt was the subject of a dispute because of the inclusion by the respondent in it of the underlined words in this (the first) sentence. “Throughout each Assembly Assignment, the job holder identified and selected the correct Units as well as the right number of those Units to be Assembled from his Pallet.

[675]In addition, the following sentence was proposed by the claimants to be replaced. “During the Relevant Period, this could include assembling up to 100 (boxed) Units into one UOD for one store or other large multiple counts for different Cages/stores, with the job holder pressing a button on his AMC each time he stacked 10 units into the Cage until he reached the required number of units to be assembled.”

[676]The replacement words proposed by the claimants for the whole of paragraph 6.396 of the EVJD for Mr Pratt by the time of closing submissions were these. “Throughout each Assembly Assignment, the job holder selected the right number of Units to be Assembled from his Pallet. During the Relevant Period, this could include assembling up to 100 (boxed) Units into one UOD for one store or other large multiple counts for different Cages/stores, with the job holder pressing a button on his AMC each time he stacked 10 units into the Cage until the AMC, which kept track of the total, showed a number less than 10 to indicate that he had reached the required number of units to be assembled.” Case Numbers: 3304495/2018 & others 550

[677]As with many other disputes between the parties, this dispute was about the extent to which the comparator had to make decisions or pay attention to what he was doing, and whether or not the AMC drove or at least assisted the work in question. Here, we found that the respondent over-stated the room for discretion and sought to persuade us that the work was more complicated than it in fact was. The difference between the parties was not enormous, but we agreed with the claimants on what the task was, and what were the demands of the task. As a statement of the task and its demands, we therefore preferred the words proposed by the claimants. Paperpick assignments: paragraphs 6.404-6.405 of the EVJD for Mr Pratt

[678]The task of allocating stock in the circumstances described in paragraphs 6.404- 6.405 of the EVJD for Mr Pratt as the carrying out of a “Paperpick” assignment, consisted in distributing the stock in question evenly between the UODs for the stores to which the stock was going. That task could not have been done effectively unless it was known how many stores would receive a share of the stock. Thus, the number to be allocated would be the total number of units divided by the number of stores. If the assembler were responsible for working that figure out then he would then need to calculate by using simple arithmetic the appropriate number. However, Mr Pratt’s own initial evidence in the interview of which there was a record at D1/5 was (as recorded in lines 19-20 on page 67 of that record, at D1/5/17) this. “It tells you on the paper how much you need to pick for a certain store.”

[679]Also, on page 27 of the transcript of day 30, Mr Pratt accepted that a paperpick assignment occurred “less than once a year”, and agreed to the propositions that679.1 ‘a manager would give you a list of store locations [and] would say something like, “Please put two or three units from this pallet into each of these locations”’, and

679.2 “that would be written on the paper”, i.e. “the written printout”,

679.3 “the only problem comes if you start to run out of stock before you’ve managed to put two or three items in each of the cages”, and

679.4 “that is where you would split what you had left evenly between the stores that were left”, so that

679.5 “essentially [you would be] just trying to make sure that each store gets at least one of the thing you’re assembling”.

[680]That evidence was not contradicted by any other evidence, including the parts of the witness statements of Mr Pratt and Mr Bates on which the respondent relied in its closing submissions, namely paragraphs 160-161 of the first witness statement of Mr Pratt and paragraph 251 of the first witness statement of Mr Bates. It was therefore Case Numbers: 3304495/2018 & others 551 impossible to understand why the respondent insisted in its closing submissions on its proposed text for paragraphs 6.404 and 6.405 of the EVJD for Mr Pratt, which was as follows. “6.404 If the job holder was allocated a ‘paper pick’ Assignment – which happened less than once a year during the Relevant Period and was where Stock could not be traced in the system but was nevertheless allocated for delivery to stores the job holder ensured there was an even distribution of Units across all the stores identified to him, depending on the number of Units ordered and the number available on the Pallet. 6.405 Whilst the Assembly Manager might provide some guidance to the job holder, it was up to him to decide how best to allocate them, usually distributing them on a pro rata basis whilst also ensuring that each store received at least one Unit of that Product wherever possible.”

[681]The claimants proposed instead these words. ‘6.404 Less than once per year, the job holder was allocated a “paper pick” Assignment. This meant that the detail of the Units to be Assembled into Cages was provided on paper and the Assignment was undertaken without the use of an AMC. 6.405 The Assembly Manager told the job holder how to carry out the task, e.g., the need to share 2 to 3 Units from the Pallet to the Cages for each large store. The job holder followed these instructions. If it became clear to the job holder during the Assignment that there were insufficient Units on the Pallet to adhere fully to the instructions provided, the job holder would usually distribute the remaining Units on a pro rata basis so that each store received at least one Unit where possible.’

[682]Given Mr Pratt’s evidence, given both in initial interview and in cross-examination, we concluded that those words proposed by the claimants were correct. Paragraph 6.418 of the EVJD for Mr Pratt: the impact of layer pick assignments on PI rates

[683]Even if PI rates imposed by the respondent were capable of increasing the value of the work done by a comparator, given the evidence of Mr Pratt in cross-examination as recorded in lines 6-9 on page 29 of the transcript of day 30 that he did not know whether layer pick assignments were taken into account when PI targets were set, we could see why the claimants asserted that the impact of being slowed down by a layer pick could not be relevant at this stage. The impact of the imposition of productivity targets generally and the relevance of other, similar, factors Case Numbers: 3304495/2018 & others 552

[684]It was at this point that we considered that we were able to come to a reliable view on the impact of PI rates at this stage (i.e. a stage 2 hearing). We therefore reflected on and reviewed the question of the impact of PI rates on the demands of the work required by the respondent to be done by the comparators. It was in our view an inescapable conclusion that PI rates had no effect on those demands. That was because the work was what it was, and the imposition of productivity targets could not in itself affect that work. We came to that conclusion by reasoning from what we regarded as basic principles, and we reviewed it by looking again at the passages which we set out in paragraphs 111-113 above. Those passages confirmed for us that a performance target was entirely separate from the task to which it was applied.

[685]The only relevant question was therefore whether or not the imposition of productivity targets affected the relevant conditions in which the comparators worked. We could not see how it could. That was because if it could do so then an employer could, by imposing any kind of productivity target, increase the value of the work done. That could not in our judgment be correct.

[686]Separately, by way of reflection and in order to see the situation in the round, we considered on a preliminary basis, i.e. without having heard from the parties on this question, whether the existence of productivity targets could give rise to a valid material factor defence within the meaning of section 69 of the EqA 2010. On that (preliminary) basis, we thought that it was only if the productivity targets were lawfully imposed, that is to say consistently with the implied term of trust and confidence, that they could give rise to a material factor defence within the meaning of section 69. That question is one on which the parties may wish to address us at the material factor defence hearing which we have listed to take place in September and October of next year, 2025. But in any event, a productivity target was, on our understanding, not relevant at this stage.

[687]We add that the potential consequences of a failure to do a job well, or correctly, must in our view be irrelevant to the demands of the job. Those potential consequences might be a material factor justifying a difference in pay, but that was not relevant at a stage 2 hearing.

[688]The same was true of risks to the health and/or well-being of an employee. We could not see how an employer could properly be said to increase the value of an employee’s work by making him or her work in unsafe conditions. In addition, an employer is under obligations imposed by the Health and Safety at Work etc Act 1974 and regulations made under that Act. Those obligations apply to the work of a claimant as well as a comparator, and unsafe working practices of an employee in any environment cannot consistently with recognising those obligations add to the value of the work done by that employee.

[689]We also came to the conclusion that the physical conditions in which work was done could not properly be said to increase the value of the work unless the physical Case Numbers: 3304495/2018 & others 553 conditions increased “the demands made on [the job-holder] by reference to factors such as effort, skill and decision-making” within the meaning of section 65(6) of the EqA 2010. There was, we saw, no authority on the point, but it was in our view another inescapable conclusion. If there was a difficulty arising from the point, then it was going to arise in the application of section 65(6) in practice. Mr Pratt’s work of assembly (continued)

[690]We now resume our determinations of the disputes maintained in relation to part of the EVJD for Mr Pratt describing the work of assembly as done by him. Paragraph 6.444 of the EVJD for Mr Pratt; pushing fully-laden dollies or MUs to the marshalling lane

[691]We first refer to a dispute the value of maintaining which was not clear to us, but which we resolve for the avoidance of doubt. At the end of paragraph 6.443, this was said (and it was agreed). “In order to [push the fully loaded Dollies (or MUs with 6 Trays stacked on top of them) across the Aisle to the Marshalling Lane], the job holder rotated them by 90 degrees in order to maximise space ready for collection from the Marshalling Lane.”

[692]As proposed by the respondent by the time of closing submissions, paragraph 6.444 was as follows. “This rotation was difficult because the job holder had to push against the natural direction of the wheels on the Dolly (or MU), which created resistance. As a result, the job holder used repeated manoeuvres to get them in to the right position, all whilst working in a confined space amongst other fully loaded Dollies.”

[693]That paragraph was opposed by the claimants on the basis that it should be deleted. The reasons for that opposition were stated in the row for that paragraph in the claimants’ closing submissions, which was in these terms. “1. What is being described is rotating a stable platform which has wheels, two of which rotate, by 90 degrees; that is not a difficult thing to do. 2. The rotating wheels on the Dolly or MU do not have a ‘natural direction’. 3. The Dolly or MU would be located next to the Assembly aisle before being pushed towards the Marshalling lane – it would not be in a confined space.”

[694]We found it difficult to see how there could be a “natural direction” for wheels of a dolly or MU, but we accepted that we and the IEs should take into account the Case Numbers: 3304495/2018 & others 554 possibility of resistance from wheels which were initially not in a helpful position, even though such a possibility was in our view obvious.

[695]Nevertheless, we accepted the claimants’ assertion that as “[t]he Dolly or MU would be located next to the Assembly aisle before being pushed towards the Marshalling lane – it would not be in a confined space”. Paragraph 6.447 of the EVJD for Mr Pratt: scope for adding Wave 2 products to a Wave 1 UOD

[696]One dispute which was material concerned paragraph 6.447 of the EVJD for Mr Pratt. The original words of paragraph 6.447 had to be read in the light of the preceding two paragraphs. The whole of that sequence was originally this. “6.445 When undertaking an Assignment from a Pallet containing Wave 2 produce, the job holder was instructed not to assemble Units from that Pallet into a UOD already loaded with Wave 1 produce. Any attempt to scan a Unit into any of those UODs was rejected by his AMC. 6.446 If there was no UOD (i.e., a Cage or Dolly) already open for Wave 2 produce, the job holder had to open an entirely new UOD in the usual way (see paragraphs 6.436 to 6.444 above). 6.447 The one exception to the above rule applied for a period of around 60 to 90 minutes after the start of the job holder’s night shift, by which point all UODs set up to take Wave 1 produce had automatically closed on the system. During that window, if the job holder found any Wave 1 UODs that had not been closed and had room for him to do so, he could assemble a Wave 2 Product into that Wave 1 UOD.”

[697]The claimants’ proposed words for paragraph 6.447 were these. “The one exception to the above rule applied for a period of around 60 to 90 minutes after the start of the job holder’s shift, by which point all UODs set up to take Wave 1 produce had automatically closed on the system. During that window, a manager could keep a Wave 1 UOD open for more product. If the job holder found any Wave 1 UODs that had room for him to do so, he could try to assemble a Wave 2 Product into that Wave 1 UOD; if management had kept that UOD open then he would be allowed to do so, but if it had been closed then he would not. This was all controlled by the AMC.”

[698]Thus what the claimants proposed was to add words which made it clear that(1) there would be a UOD containing wave 1 produce which remained open only because of a decision made by a manager to keep it open, and

(2) the whole process would be governed by the AMC. We agreed with those proposed additional words, which were a helpful statement to the effect that the loader did not, as might have been thought as a result of reading paragraph 6.447 of the EVJD for Mr Pratt (i.e. as Case Numbers: 3304495/2018 & others 555 written by the respondent), have any discretion in regard to adding Wave 2 products to a Wave 1 UOD. The task called by the respondent “inside pallets”; paragraphs 6.484- 6.494 of the EVJD for Mr Pratt

[699]There was little which was in dispute in regard to the work of Mr Pratt which the respondent called “inside pallets”. In so far as there was such dispute, we now state our conclusions. Paragraph 6.485 of the EVJD for Mr Pratt

[700]We agreed with what the claimants said in regard to paragraph 6.485 of the EVJD for Mr Pratt and that their proposed (fewer) words were a better description of the work in question. Paragraph 6.489 of the EVJD for Mr Pratt (and paragraph 6.323 of the EVJD for Mr Pustula and paragraph 6.385 of the EVJD for Mr Todd)

[701]It was submitted by the respondent (via some proposed new words for paragraphs 6.489 of the EVJD for Mr Pratt, paragraph 6.323 of the EVJD for Mr Pustula and paragraph 6.385 of the EVJD for Mr Todd) that we should accept the proposition that the pallets which were moved about in the course of doing the job of Inside Pallets “could weigh as much as twice their normal weight” when they were exposed to the rain. We could not see any cogent evidence before us about the precise extent to which a pallet’s weight might increase when it was wet, but we rather doubted that the weight of a wet pallet would double as compared with its weight when dry. The claimants submitted that the weight might increase “slightly”. We could not say that an increase in the weight of a pallet which had to be moved by hand was irrelevant, but we could not assess the impact of the increase in the absence of cogent evidence about its extent. We left it to the IEs to take into account the possibility of an increase in weight, but concluded that the increase would be rather less than was asserted by the respondent. Paragraph 6.494 of the EVJD for Mr Pratt 702 in the second part of paragraph 6.494 of the EVJD for Mr Pratt, which was not in the first version of that EVJD before us, which was at D1/1, there was the following assertion. “A further task that the job holder’s Manager asked him to do while on Inside Pallets was to fill Trailers with Pallets using a Ride-On PPT. This would usually happen at least once every time the job holder was assigned to Inside Pallets. The job holder had no direct supervision nor did he use his AMC when completing this task.” Case Numbers: 3304495/2018 & others 556

[703]Those words were also inserted into paragraph 6.330 of the EVJD for Mr Pustula. Mr Bates gave evidence supporting those words in both EVJDs, in the form of paragraph 286 of the first witness statement, which was in these terms. “The only other thing I would have asked them to do was to fill a trailer with pallets using a Ride-On PPT. During the night shift, there was normally at least one trailer arriving to collect pallets, whether to return to a supplier or taken to the RSU for recycling. Shawn would have done this if these trailers arrived whilst he was deployed to Inside Pallets.”

[704]The respondent’s own evidence (in paragraph 3.29 of the EVJD for Mr Pratt) was that he did the thing called “inside pallets” only six times in six years. As a result, at most Mr Pratt can have put pallets onto the back of a lorry, no more than six times in that period. The claimants submitted (on the basis of the cross-examination of Mr Bates recorded on pages 86-88 of the transcript of day 27) that Mr Pratt did that work at most only once or twice during the relevant period. We agreed. In those circumstances, we concluded that he did it “rarely” within the meaning of the schematic at H31. As we understood it, the work was stated in row 12 of the procedure part of the document at D9/562 to which we refer in paragraph 90 above, which was at D9/562/3 and was in these terms. “Put the empty pallets onto the container/trailer using the mechanical handling equipment loading two stacks side by side, 1 stack with the 1200 side showing and one with the 1000 side showing, Alternate this down the container until you have loaded 24 stacks 360 pallets in total”. MHE battery changes; paragraphs 6.503-6.543 of the EVJD for Mr Pratt Paragraph 6.503 of the EVJD for Mr Pratt: avoiding the battery of a Pedestrian PPT running out mid-assignment

[705]It was stated by the respondent in paragraph 6.503 of the EVJD for Mr Pratt that if he was using a Pedestrian PPT then he had to change the battery if the charge indicator “dropped to below two bars”. That was agreed by the claimants.

[706]We saw no statement in the training materials before us about the number of bars which could be permitted by a comparator to show on the battery charge indicator on a Pedestrian PPT before the battery needed to be replaced. There was, however, this statement at the top of page 2 of D9/468, to which we refer in paragraph 96 above and which was entitled “Know Your Stuff For Mechanical Handling Equipment – Crane Operated Battery Changing”. “Each piece of MHE used in our distribution centres has a battery gauge which indicates the remaining power for that battery. Generally when this gauge reaches 1/8th of its total, the battery will need changing.” Case Numbers: 3304495/2018 & others 557

[707]Perhaps of most importance for present purposes, there was this statement slightly lower down on the same page. “You will find that your truck needs its battery changing when it is no longer able to raise or lower loads. Although it cannot raise or lower loads, the battery will have sufficient charge for the truck to be taken to the battery changing area in your distribution centre. Take your truck to a battery changing station or pod as soon as you suspect the battery is running down.”

[708]Whether or not the battery indicator was in practice allowed by for example Mr Pratt to go as low as two bars on a Pedestrian PPT as asserted (and agreed) in paragraph 6.503 of the EVJD for him, we concluded on the basis of the factors to which we refer in paragraphs 286-288 and 291 above that it was part of the work of a comparator for the purposes of section 65(6) of the EqA 2010 to take all steps which could reasonably be taken to avoid the MHE which he was using running out of battery power in the middle of an assignment. Changing the battery: paragraphs 6.514-6.517 of the EVJD for Mr Pratt

[709]As we say in paragraph 97 above, changing the battery on a pedestrian-powered pallet truck was described in 18 steps with pictures for each step at D1/3/13, which in our view was a reliable and comprehensive statement of the task of changing a Pedestrian PPT battery. Battery care; the proposed words of paragraphs 6.518 and 6.538-6.540 of the EVJD for Mr Pratt Paragraphs 6.518 and 6.538-6.540 of the EVJD for Mr Pratt

[710]We state our conclusions on the factual assertions in the proposed new second sentence of paragraph 6.518 of the EVJD for Mr Pratt and paragraphs 6.538-6.540 of that EVJD in paragraphs 304-309 above. (The proposed new sentence was this: “Any copper wire visible as a result of damage to the cables had to be treated with care to avoid the risk of electric shock and/or fires, and had to be reported immediately.”) Craned battery changes; paragraphs 6.520-6.537 of the EVJD for Mr Pratt and related issues Paragraph 6.520 of the EVJD for Mr Pratt; craned battery change

[711]We refer in paragraph 96 above to the changing of a battery using a crane. The documentary evidence to which we referred there suggested that the comparators did not change their batteries using cranes. In considering whether Mr Pratt did that work, we took into account D9/212 (to which we refer in paragraph 99 above), which was dated 18/09/2017. It was entitled “Health and Safety Risk Assessment: Case Numbers: 3304495/2018 & others 558 Warehouse: Battery Change”. It had six numbered rows, only two of which were relevant here. The first was row 2, which related to the “Activities / tasks carried out” in relation to “Crane battery change”. In the column with the heading “What are the existing control measures?”, the first two bullet points on that row were these. “• Battery person carries out pre-op checks on crane, including tightness of chain bolts, slings in good order and that control buttons are working properly.• MHE Operator stands clear of the battery change operation in the designated area at all times.”

[712]The second bullet point after that was this. “• Whilst operating the crane, the Battery person remains constantly vigilant to avoid collision between moving machinery / batteries and themselves / others.”

[713]A little further down, there was this bullet point in the same box. “• Colleagues are trained on battery change using a crane as part of Know Your Stuff for MHE training.”

[714]However, unlike what was said in the next numbered row, row 3, which related to the activities and tasks carried out in relation to “Battery car battery change”, there was no suggestion in row 2 that for example an assembler might be trained to change batteries using a crane. In row 3, the possibility of the MHE operator also being trained to do the job of changing the battery was catered for. That was in the following two bullet points, which were the seventh and eighth bullet points in the box in the column headed “What are the existing control measures?”. “• Battery Bay Operative carries out pre-op checks on the battery change area (clean and tidy) and on the battery changing car and ensures that controls are working properly.• If the MHE Operator is not also the trained user of the car, they go to the designated waiting area (or a safe area if there isn’t a designated area) and wait there until the Battery Car Operative indicates that the truck is ready for collection.”

[715]So, the training materials indicated that the respondent did not, ever, expect a person doing the job of for example assembly, such as Mr Pratt, to use the crane to change the battery on any MHE which the person was using.

[716]However, no witness for the respondent was cross-examined on the basis that no comparator did the task of (as described in the heading to paragraph 6.520 of the EVJD for Mr Pratt) “Craned Battery Change”. No party referred in the hearing to D9/468. No party referred in closing submissions to D9/468. Case Numbers: 3304495/2018 & others 559

[717]We then checked the EVJD for Mr Pratt to see if there was a specific reference to him having been trained to do craned battery changes. In paragraphs 4.20-4.21 of that EVJD (for the avoidance of doubt we refer here to the version at D1/1.1/31), this was said. “4.20 Battery change for the Pedestrian PPT was taught as part of the Pedestrian PPT training course. The training in respect of changing the battery on the Loading Truck was delivered in a practical training session in the operation of the Overhead Gantry Crane with a written assessment. 4.21 In addition, on 5 March 2017 there was battery changing training and a briefing over an hour when there was training on short lead batteries, the use of the extension leads and the updated policy and procedure for battery acid spillages. The job holder signed to indicate that he had been fully trained on these matters.”

[718]No date was given for the training to which reference was made in paragraph 4.20. We saw that there was in that paragraph no suggestion that there was any evidence to show that Mr Pratt had received that training. Read literally, it did not say that he had. There was no other reference in the EVJD for Mr Pratt to receiving training in the changing of batteries, including being trained in the use of a crane to do so.

[719]We then checked the 1039-page personnel file for Mr Pratt, which was at D1/6. The first place where we found records of training given to him was in the section starting at page 667 (i.e. D1/6/667) and continuing to page 679. There were more such records at pages 729-740, and 797-800. There was nothing in those documents which showed that Mr Pratt had received training either in battery charging or the use of a crane to do so (or otherwise). At page 875 there was a “Training Record Card” for Mr Pratt, with a start date of 12 November 2007, showing the training which he had received during that year. None of the entries recording a “Skill/Module of Training” listed there related to the changing of batteries, let alone the use of a crane to do so. At page 892 there was a document with the title “Hinckley Fresh Food Depot – Picker & Pallet Truck Validation”. There was no reference there to changing the battery of the truck, although there was a reference to “switch[ing] off the charging unit before [taking] the truck or battery off charge”.

[720]There was at D1/6/896 a completed document entitled “Know Your Stuff For Mechanical Handling Equipment – Pedestrian Powered Pallet Truck – Checking You Know Your Stuff – Handout 2 – Theory Test”. There was no reference in that document to battery changes. There was a “Practical Test Marking Sheet” for that truck dated 20 May 2008 for Mr Pratt at D1/6/898. No reference was made there to the truck’s battery. There was at page 899 of D1/6 onwards a series of records of training given to Mr Pratt. Only at page 1015 did we find a reference to training on battery changing. It was a single page document, and it was entitled “Battery Changing Brief”. It was dated “5.3.17” and it was, clearly, the document to which Case Numbers: 3304495/2018 & others 560 reference was made in paragraph 4.21 of the EVJD for Mr Pratt. There were on it Mr Pratt’s name and signature and that of the trainer under the following statements.720.1 “I have been fully trained on the short lead batteries and understand the use of the extension lead.”

720.2 “I have also been briefed on the updated policy & procedure for Battery Acid spillages.”

[721]That was all that was said on that page, i.e. in that document. There was no other reference in the 1039 pages of the personnel file for Mr Pratt at D1/6 to training in the changing of batteries and no reference of any sort to him being trained in the use of a crane.

[722]We then turned to the evidence concerning the other fresh DC comparators. Two of them also worked at Hinckley. That was Mr Pustula and Mr Todd. Both of them said that they did craned battery changes. However, there was evidence in their personnel files of them having received training to do that. Mr Todd’s situation was more straightforward, because (as we record in paragraph 297 above) it was said that he had only started to do craned battery changes in April 2016. At pages 400-402 of D3/9 (which contained the personnel file for Mr Todd), there was a document evidencing training on the use of a crane as a battery attendant. It was headed “Battery Attendant Crane/Slinger Theory Test”, and it was a “Validation Question Test Sheet”. That document was dated “21/4/16”. In paragraph 153 of his witness statement, Mr Todd said this. ‘[EVJD 6.346 / ROD 564] The Claimants say it is misleading and comment to say that I was “responsible” when using the battery Crane. From the point when I started using the crane in 2016 (I cannot remember the exact date) I was responsible for changing the batteries in my own MHE, rather than it being done by a specifically trained Warehouse Operative. Operating the crane involves responsibility because, when you are lifting a battery, it can swing around in the air. There tend to be quite a lot of unmanned trucks in the area (especially in the morning) and there can be a number of other people waiting to change batteries or collect a truck.’

[723]Mr Pustula’s personnel file had at D2/8/365-368 a document of the same sort as the one at D3/9/400-402. In fact, D2/8/365-368 included a fourth page, which was plainly missing from the copy of the personnel file for Mr Todd which was before us. The document at D2/8/365-368 was dated “3/2/2016” on both its first page and its last page. So, like Mr Todd, Mr Pustula appeared to have had some training in 2016 on the use of a crane to change batteries on a LLOP or similar truck. However, what Mr Pustula said in paragraphs 84 and 85 of his first witness statement showed that it was not the norm for a loader or an assembler working at Hinckley to do a craned battery change: Case Numbers: 3304495/2018 & others 561 “84 I confirm that I have read the text of paragraph 6.359 EVJD and I confirm its wording and that it is the true factual position. Loaders were often not authorised to change batteries in their Loading Trucks, so I had to do it for them. I was removed from my duties for this purpose, was called through a speaker and had to immediately stop my work and carry out a replacement with a crane. I didn’t like those situations. 85 I confirm that I have read the text of paragraph 6.360 EVJD carefully (I had time to do so) and I have no doubt that it is the true factual position and that it correctly specifies the time required to change the battery in the Loading Trucks. I maintain and confirm that the battery replacement in the Loading Truck with a crane usually took 6-10 minutes (not 3 minutes). When I gave an estimated battery replacement time of 3 minutes during my conversation with the Claimants’ lawyers, I understood that I was being asked about the time it took for the batteries to be replaced in the Electric Powered Pallet Truck (“PPT”) and not in the Self-Propelled Pallet Truck PPT.”

[724]For the sake of completeness in regard to the situations of the fresh DC comparators, we record here that it appeared that Mr Young used a battery car to change batteries on his loading truck. That was clear from what was said in paragraph 6.369 of the EVJD for him. There was no reference in the EVJD to him using a crane to change batteries. However, there was a reference to the risks arising from changing a battery using a crane. That was in paragraph 10.30B of the EVJD for him at G/313.7/155, which was in the following terms. “The Risk Assessment for “Battery Change” [TSC26250 – September 2016] identifies the following sub activities and Risk Ratings (in order of risk level):• Using Mechanical Handling Equipment – Amber 3/3 (9)

• Crane Battery Change – Amber 2/3 (6)

• Pod Battery Change – Amber 2/3 (6)

• Dealing with tipped batteries/battery spills – Amber 2/3 (6).”

[725]The reference there to “TSC26250” was to the number given by the respondent to the document in its disclosure process. The document was a spreadsheet with text (and only text) in it, and it was in the bundle as D9/28. In fact, it was the precursor to D9/212 to which we refer in paragraphs 99 and 711-714 above. As a statement of a small part of what was in the document at D9/28, paragraph 10.30B of the EVJD was accurate. However, it was irrelevant to the work done by Mr Young and, we concluded, what he was employed by the respondent to do. That was because he did not do craned battery changes.

[726]In order to see what approach the respondent had taken in regard to the replacement of LLOP batteries by the ambient DC comparators, we looked at the EVJD for Mr Davis and his personnel file, which was at D5/6. We saw that in paragraph 4.23 of the EVJD (at D5/1.2/45-46) this was said. Case Numbers: 3304495/2018 & others 562 “The job holder received training in the safe practices and procedures for battery changing as part of his initial and refresher training for each item of powered MHE he operated - the Loading Truck (a LLOP), the Pedestrian PPT and the Dekit LLOP. Furthermore, the job holder had training on battery charging and changing on the following occasions: 20.01.2010 Battery Brief The job holder received training, lasting approximately 20 to 30 minutes on a new method of work whereby Warehouse Operatives could change MHE with depleted batteries for a new vehicle. This required the job holder to deposit the Cages on the vehicle with the depleted battery in a safe location and collect them subsequently with the new MHE (after having undertaken all appropriate Pre-Op Safety Checks on the new vehicle). 27.01.2011 Battery Change Enhancement The job holder received one-to-one training (lasting approximately 20 to 30 minutes and held in the Battery Bay) on a new system for battery changing, which was designed to make the process faster.”

[727]The first reference in Mr Davis’ personnel file to him being trained on battery changes that we could see was at page 124 of D5/6. The document there was headed “Training Record Form – Picking Truck” and was dated “5/10/04”. There were 18 “subjects” in the left hand column in the table. One was this: “Battery room” but there was nothing on the page to indicate what training was given in that regard. On the next page, however, i.e. D5/6/125, there was a question “Who is responsible for disconnecting the battery from the charger and why?” The words “Battery Man” were written by hand in answer, but they were crossed out with the initials “ED” above the crossing-out, and on the right the letters “NA”. All of the rest of the answers but one on that page were ticked. The other one not ticked was also crossed out, with the initials ED above it. The question was “Where must you return your MHE at the end of your shift?”. Mr Davis had written “Tracka Board”, and that had been crossed out, with the following words on the right written in: “Battery Room”. We thought therefore that “NA” meant either “no answer” or “not applicable”.

[728]There was a record on page 204 of D5/6 of Mr Davis being given a “battery brief” on 20.01.10, but no indication of the content of the brief. There were what appeared to be full records of the training given to Mr Davis both during the relevant period and otherwise in D5/6. There was nothing else in those records which referred to battery changing. In addition, in paragraph 6.634C of the EVJD for Mr Davis, which was at D5/1.2/151, this was said. “The job holder engaged with Specialist Battery Operatives when having the battery changed on his Assembly and Loading Trucks. If there were other Case Numbers: 3304495/2018 & others 563 Warehouse Operatives ahead of him in the queue, the job holder waited for others to have their batteries changed before it was his turn.”

[729]So, if Mr Davis did indeed receive the training described in the first part of paragraph 4.23 of the EVJD for him, which we have set out in paragraph 726 above, then he did not use it.

[730]In those circumstances, we concluded that, subject to the possibility of a reconsideration of the point in the light of submissions made in response to what we say here, we had to conclude that it was not part of the work of Mr Pratt to change MHE batteries using a crane. We accepted, however, that it was part of the work of Mr Todd to do that, but only after April 2016. We also accepted that it was part of the work of Mr Pustula to do craned battery changes, but only after he received the training shown by the document at D2/8/365-368, so only after 3 February 2016.

[731]If and to the extent that it was part of the work of a comparator to do craned battery changes, then it was in our view imperative to bear it in mind that the manner in which the change had to be done was stated authoritatively in D9/468 and the SSOW at D1/3/9 (to both of which we refer in paragraph 96 above). We could not see in for example at least the disputed parts of paragraphs 6.359-6.376 of the EVJD for Mr Pustula anything which added materially to what was in those two documents (especially bearing in mind the value of the photographs in D1/3/9 in helping the reader understand the words stating the steps required to be taken) about the procedure to be followed in doing a craned battery change. Part 7 of the EVJD for Mr Pratt: “metrics”

[732]Without in any way intending to cast doubt on what we say in paragraphs 329-330 and 543-547 above, we refer here again to the issue of what the respondent called “key facts and metrics”, but this time in relation to section 7 of the EVJD for Mr Pratt.

[733]We have already (in paragraph 61 of our judgment of 12 July 2023) stated our conclusion on the admissibility and reliability of the various statistics relied on by the respondent. We saw that a number of statistics were advanced in section 7 of the EVJD for Mr Pratt. The claimants opposed reliance by the respondent on those statistics on the basis that they were not reliable. We doubted the relevance, or at least the evidential value, of the statistics asserted by the respondent, assuming, that is, that they were accurate.

[734]While the claimants told us at the hearing of 20 July 2023 that they were opposed to the respondent being subsequently permitted to put proper evidence before us in relation to the statistics, and we accepted at the time that we would not be making provision for that possibility, when deliberating, by time of writing this document, we were of the view that if the IEs asked under rule 6(3) of the EV Rules for us to determine one or more questions relating to the statistical evidence then we would reconsider that question. In the meantime, however, we record that we doubted that Case Numbers: 3304495/2018 & others 564 at least some of the figures given in section 7 of the EVJD for Mr Pratt were relevant, or accurate. For example we doubted that the statistic in paragraph 7.9 of the EVJD for Mr Pratt was accurate if read as applying to what Mr Pratt personally did. Paragraph 7.9 was in these terms. “The total weight lifted and carried by the job holder during a single full Assembly night shift was, on average, 5.3 tonnes increasing to a maximum of 7.5 tonnes.”

[735]If that figure of 5.3-7.5 tonnes referred to the weight carried by the MHE used by Mr Pratt, then it was meaningless. The work of Mr Todd for the purposes of section 65(6) of the EqA 2010 Introduction; the proportions of the time spent on the various tasks done by Mr Todd

[736]Mr Todd’s work was summarised in section 3 of the EVJD for him. While the summaries of the tasks were of no value to us, since it was the tasks themselves that mattered so that a summary of that task did not help us or the IEs (being, in fact, a commentary on the evidential assertions about the tasks), it was helpful that there was in section 3 a statement of the proportions of time spent by Mr Todd on the tasks which he undertook during the relevant period. The proportions were, however, disputed, but ultimately so far as we could see agreed sufficiently for present purposes, in the following manner.736.1 In paragraph 3.10 of the EVJD for Mr Todd, it was first said by the respondent that Mr Todd spent 24% of his time during the relevant period doing what the respondent called “Tipping”, which was in reality the unloading of goods received. The claimants asserted that the proper figure was 18%, although the amount varied during that period, and by the time of closing submissions, the respondent had accepted that figure of 18%. We could not see on what that acceptance was based, but it was said by the respondent to have resulted from a revised analysis by it of its Denver system data. The respondent (in our view correctly) pointed out in its submissions in relation to paragraph 3.10 of the EVJD for Mr Todd that that system “was not originally designed for the purpose to which it is now being put”. In any event, the claimants submitted that while the respondent now accepted the figure of 18%, “this fails to recognise material changes in the breakdown of the job holder’s work for which information is available from October 2014 onwards.” The respondent’s answer to that assertion was in general terms, part of which we describe above in this paragraph. The answer started with this passage. “It is denied that the statistics are misleading or meaningless. As addressed in the introductory submissions on Deployment above, the Respondent has sought to assist the Tribunal and the Claimants by providing as accurate an analysis as it can of the data in its Denver system.” Case Numbers: 3304495/2018 & others 565

736.2 In paragraph 3.13 of the EVJD, it was first said by the respondent that Mr Todd spent “14% of his overall working time” on “Checking” goods received. The claimants said that that figure should be 13% but that the amount done varied throughout the relevant period. By the time of closing submissions, the respondent had accepted the figure of 13%. That, like all of the other acceptances by the respondent of the claimants’ proposed figures in this paragraph (731), was based on the revised analysis of the Denver data to which we refer in the preceding subparagraph above. Again, the claimants submitted that the respondent was failing to “recognise material changes in the breakdown of the job holder’s work for which information is available from October 2014 onwards”.

736.3 In paragraph 3.15 of the EVJD, the respondent originally said that Mr Todd spent 18% of his overall working time on breaking down pallets. The claimants said that it was about 13% and that it varied over the relevant period. Again, the respondent accepted the claimants’ proposed figure (here 13%) by the time of closing submissions. Again, the claimants objected that the respondent was failing to “recognise material changes in the breakdown of the job holder’s work for which information is available from October 2014 onwards”.

736.4 In paragraph 3.18 of the EVJD, the respondent at first said that Mr Todd spent 15% of his overall working time on “topping”, which was removing the top layer of an over-height pallet, but that he also did topping as part of his work of tipping, so that it formed part of the 24% of the time spent on tipping. The claimants said that Mr Todd spent about 12% of his overall working time on topping but that the figure varied during the relevant period. Again, the respondent accepted the claimants’ proposed figure (“12% of his overall working time”) by the time of closing submissions. Again, the claimants objected that the respondent was failing to “recognise material changes in the breakdown of the job holder’s work for which information is available from October 2014 onwards”.

736.5 In paragraph 3.25 of the EVJD, the respondent first said that Mr Todd spent 28% of his overall working time doing what the respondent called “grid walking”, which was said to be recording and reporting differences between the stock that was stated in the respondent’s computer systems to be in the DC and that which was in fact there, and correcting any errors in that regard. The claimants said that the figure was instead about 42%, but that the figure varied throughout the relevant period and set out some figures for the period. By the time of closing submissions the respondent had accepted the figure of 42%.

736.6 In paragraph 3.26 of the EVJD the respondent said that Mr Todd on eight occasions during the relevant period did the task of “inside pallets”, spending Case Numbers: 3304495/2018 & others 566 on average less than an hour on each occasion. The claimants agreed with the figure of eight but said that the average time was just over 35 minutes. The respondent’s position on that number was not expressly stated.

736.7 In paragraph 3.27 of the EVJD, the respondent said that Mr Todd from 2016 onwards “was deployed 3 to 4 times per year and for approximately 2 hours on each occasion to assist with the preparation of empty Cages for all Assembly Aisles within the +1 Chamber.” That was agreed.

736.8 Battery changing was dealt with by way of summary in paragraph 3.28 of the EVJD. Battery changes were there said to occur “at least once per shift but usually once or twice”. Since (as could be seen from the documents to which we refer in paragraphs 96 and 99 above) the task varied according to the battery being changed, that was not very informative. The claimants submitted that battery changes “could be required as frequently as once per shift or, subject to battery condition, up to once a week”. However, the parties agreed that the time spent on changing batteries was included in the time recorded for Mr Todd doing “Goods In” work. We noted that nowhere in the respondent’s description of the work of Mr Todd in paragraph 3 of the EVJD for him was reference made to him doing “Goods In” work as such. The claimants proposed, however, that we concluded that several of the elements of the work of Mr Todd referred to in paragraph 3 of the EVJD for him were parts of the “Goods In” function. We saw that the part of the EVJD for Mr Todd to which we turn in the next paragraph below was headed (at D3/1.1/50) “Part 3 Goods In Tipping (Unloading Trailers)”, showing that the claimants were probably right to say that. The relevance of the assertion was, however, not clear to us. We were ourselves doubtful that Mr Todd would need to change the battery on his MHE more than once per shift at the most. That was because of the evidence of Mr Young to which we refer in paragraph 928 below. Goods in; tipping (unloading trailers); paragraphs 6.66-6.193 of the EVJD for Mr Todd Paragraph 6.95 of the EVJD for Mr Todd; ratchet straps and goods in; tipping

[737]The first material factual disagreement that we found in the rest of the EVJD for Mr Todd was in paragraph 6.95. As proposed by the respondent, that paragraph was as follows. “At least once a day a Ratchet Strap became folded within the ratchet mechanism and the job holder applied the necessary level of physical effort (equivalent to lifting a full width Bulkhead Panel) in order to pull open the springloaded ratchet and pull out the twisted strap at the same time.”

[738]The claimants said that the paragraph should be in these terms. Case Numbers: 3304495/2018 & others 567 “About once a day the job holder would have to deal with a Ratchet Strap that had folded on itself within the ratchet mechanism. He would then apply a bit more force to pull the strap through the mechanism, the amount of force needed varying according to how badly the strap was folded.”

[739]The words “a bit more” were imprecise. But so was the reference to the effort of lifting a full-width bulkhead panel. However, the latter task was more easily envisaged than using a bit more force. Accordingly, we accepted the words proposed by the respondent. Paragraph 6.97 of the EVJD for Mr Todd

[740]Similarly, we thought that if it were true, then it was likely to be relevant that Mr Todd, as claimed in paragraph 6.97 of the EVJD for him, at least once a week “suffered minor finger and hand injuries (e.g., bruising or similar injuries, although not sufficient to report formally) as a result of the ratchet handle springing back and hitting him on his (gloved) hand/fingers”. However, we accepted that, rather than being injured, he got (as recorded by the claimants in their closing submissions, taking the quotation from page 24 of the transcript of day 25) “a shooting pain up [his] arm”. Paragraphs 6.128-6.129 of the EVJD for Mr Todd: unloading MUs in tight rows of four

[741]We agreed with the claimants that paragraph 6.128 of the EVJD for Mr Todd contained some unnecessary and unhelpful words (namely “required a particular technique”). However, we found it hard to see what was meant by what was said in that paragraph, read with the next one, i.e. paragraph 6.129, as it had to be. In addition, the claimants’ proposed words to describe the factual situation did not make sense. The situation was in our view better described as follows, on the assumption that the original text of the two paragraphs was accurate. “When MUs were positioned tightly in rows of 4 across the Trailer, the job holder inserted the forks under an MU at the side of the trailer at a slight angle in order to compress the 3 other MUs. This allowed him to withdraw the forks and have the space to re-insert them fully so that he was able properly to align the forks underneath the MUs and safely remove them from the Trailer.”

[742]The problem we had with those words was that it was not clear under which MU Mr Todd would then insert the forks of his truck. Presumably it was the one which he had first put the forks under. So, he would insert the forks under the MU next to a side of the trailer (presumably the side to which he was closest), push the other three MUs out of the way slightly, reverse, and then insert the forks again, now more centrally under the MU under which he had first put the forks. After that, he would be able to take that MU out, and then go back into the trailer and insert the forks under the next MU, i.e. the one which now had a gap to its side. He would then be able to push that MU slightly towards that gap, so that he could then reverse and re-insert the forks, Case Numbers: 3304495/2018 & others 568 now under the centre of that MU. He could then take that MU out, and do the same to the other two MUs. Paragraph 6.137 of the EVJD for Mr Todd: alleged instability of MUs

[743]We agreed with at least the thrust of what the claimants said about paragraph 6.137 of the EVJD for Mr Todd. That was that there was nothing before us to show that the MUs which Mr Todd moved were so unstable that they were liable to topple over. The photograph at D9/0.2/42 did not show unstable MUs. Paragraphs 6.138 and 6.139 of the EVJD for Mr Todd; what his colleagues did to MUs

[744]Similarly, we agreed with the claimants’ assertion, made in response to paragraph 6.138 of the EVJD for Mr Todd (which was in these terms only: “During the Relevant Period, around once a week the Job Holder’s colleagues would cause an MU to topple and spill its contents, either inside the Trailer or when being moved across the Dock Leveller.”), that what Mr Todd’s colleagues did to MUs was irrelevant. However, if as a result of such toppling and spilling, Mr Todd was required to do something, then that was relevant. But, as claimed by the claimants, there was no witness statement evidence to support the proposition that Mr Todd cleared up the resulting mess as claimed in paragraph 6.139 of the EVJD for him. That appeared to have been accepted by the respondent by the time of closing submissions, since it had struck through the text of that paragraph in its closing submissions and by that text, in the next box of the table, put this: “JH confirms he never had an MU topple over. Delete.”

[745]As for paragraph 6.138 of the EVJD for Mr Todd, it was Mr White’s evidence in paragraph 86 of his first witness statement, that “[t]he figure [in paragraph 6.138 of the EVJD for Mr Todd] of one a week would be correct only as an average across all of the Warehouse Operatives moving MUs.” By the time of closing submissions, it was clear that what was said in paragraph 6.138 of the EVJD for Mr Todd in the form it took by the time of those submissions was said in support of the proposition that Mr Todd was especially skilful. Given what we say in paragraph 64 of our second reserved judgment (at pages 23-24 above), any particular skill that Mr Todd had did not affect the value of his work, so it was simply irrelevant for present purposes. Paragraphs 6.145 and 6.146 of the EVJD for Mr Todd; the greater difficulty of moving Danish trolleys (referred to by the respondent as “Danish Trollies”)

[746]The parties disagreed about the reference in paragraph 6.145 of the EVJD for Mr Todd to Danish trollies being harder to move if the steerable wheels were at the rear of the trolley. The photograph at D9/0.2/26 was helpful, and the content of paragraphs 6.145 and 6.146 of that EVJD as proposed by the respondent made sense to us. We therefore accepted the respondent’s factual assertions in those paragraphs, which in our judgment included the final sentence of paragraph 6.145 of Case Numbers: 3304495/2018 & others 569 that EVJD. That was because we concluded that that sentence was more than an evaluative or analytical comment. Rather, it stated a material factor. Paragraphs 6.147-6.150 of the EVJD for Mr Todd; more on moving those trolleys

[747]We agreed with what the claimants said about the content of paragraph 6.147 of the EVJD for Mr Todd: it had to be read as replaced by what Mr Todd said in paragraph 100 of his witness statement. However, paragraph 6.148 of that EVJD was more than just an evaluative comment; it was, we concluded in the light of paragraph 101 of the witness statement of Mr Todd, an accurate and helpful statement about the comparative difficulty of moving Danish trollies.

[748]However, we concluded that paragraphs 6.149 and 6.150 of the EVJD needed to be read as stating only that because of the size and shape of Danish trollies, which was shown by the photograph at D9/0.2/26, it was more difficult to move them using MHE than for example a full-size cage. Paragraph 6.164 of the EVJD for Mr Todd: closing the bay door

[749]We agreed with the claimants’ submission that the original words used by the respondent for paragraph 6.164 of the EVJD for Mr Todd were apt and sufficient. It appeared from the respondent’s closing submissions that the respondent thought that the claimants agreed with the respondent’s proposed words for paragraph 6.164 of that EVJD, which were as follows. “On all Trailers, the job holder pressed the “close door” button on the Bay Door Control Panel, so that the air bag deflated. Once completely deflated, the internal green light changed back to a red, simultaneously showing as green externally to indicate to the driver that it was safe for him to drive the Trailer away from the Bay. The job holder then scanned the Bay door using his AMC to confirm the offloading as completed.”

[750]However, the situation of closing a bay door was sufficiently described in D9/385, as we say in paragraph 356 above. The only additional thing referred to in paragraph 6.164 of the EVJD for Mr Todd, even in its proposed expanded form, was the pressing of a button on the AMC when the loader had finished the task of closing the bay door, which was plainly a part of the work of anyone unloading a trailer using an AMC. If documentary support for that obvious proposition was required, it could be seen for example at page 6 of both D9/314 and D9/354 (to which we refer in paragraphs 148 and 149 above) and the following paragraph on page 4 of D9/355 (to which we refer in paragraph 152 above). “Once the delivery is complete return the dock leveller to its storage position, deflate the airbags, lower the bay door using the bay door control panel and scan the door barcode with your arm computer to complete the unloading task.” Case Numbers: 3304495/2018 & others 570

[751]Paragraph 6.164 of the EVJD for Mr Todd, even in its proposed expanded form, therefore added nothing to what was in the training materials before us. Paragraph 6.184 of the EVJD for Mr Todd; decisions made by other persons

[752]For the avoidance of doubt, the content of paragraph 6.184 of the EVJD concerned what the respondent’s managers did by way of the rejection of a full pallet of damaged goods. That was not something which Mr Todd did so it was irrelevant. The claimed fact that such rejection might be “[b]ased on alerts raised by” Mr Todd was also of no value here as it did not add anything material. Paragraph 6.192 of the EVJD for Mr Todd; the force used to tighten ratchet straps in trailers

[753]We do not in paragraphs 513-515 above address the proposition, which was not agreed by the Leigh Day claimants, that the effort involved in tightening a ratchet strap in a trailer was equivalent to lifting 10kg in weight. We did not do so because we did not see a need to do so. The Harcus claimants, however, proposed in relation to paragraph 6.192 of the EVJD for Mr Todd that we should apply that proposed description by the respondent of the force required to pull the ratchet strap.

[754]We doubted that it was possible to make an accurate assessment of the force used to pull a trailer’s ratchet strap, and we thought that the description at D9/393/5-6 was probably as far as such an assessment could reliably go. However, given the Harcus claimants’ acceptance of the assertion that the force was equivalent to lifting 10kg in weight, we decided that that could be taken into account as a material fact by the IEs. Paragraph 6.193 of the EVJD for Mr Todd: much change to the original version, and no apparent reason for its original approval by Mr Todd

[755]We had much difficulty understanding how Mr Todd could have approved the original version of paragraph 6.193 of the EVJD for him which was put before us. That version was in these terms. “For every 6 loads of Stock the job holder had to reload as result of it being rejected, one would require him to attach Ratchet Straps to secure the UODs within that load; the remaining 5 were secured using Retention Bars.”

[756]By the time Mr Todd gave evidence to us, it was proposed that that paragraph was in these terms. “There were two other situations in which the job holder fitted Ratchet Straps and/or Retention Bars: Case Numbers: 3304495/2018 & others 571(a) From 2017, when securing loads for FareShare (see paragraph 6.298 below), the job holder attached Ratchet Straps to secure the UODs within that load; and

(b) where a delivery was being half tipped in one Chamber before being moved to the other (which happened about once a shift).”

[757]Mr Todd was cross-examined on this closely, as recorded at pages 33-37 and 39-41 of the transcript of day 25. He could not explain satisfactorily how he came to approve the first version of paragraph 6.193.

[758]There was a photograph of a retention bar at D9/0.2/58, which was informative. However, looking at paragraph 6.298 of the EVJD served only to confuse us. That was because that paragraph, the terms of which were agreed, was this. “Also from 2017, if the job holder confirmed a single Product as an ‘Over’, the AMC gave him 2 options; FareShare or “Return to Supplier”. If the number of (over) Units was less than 10, as was the case in the large majority of circumstances, the job holder would select FareShare which would prompt an instruction to the Assembly operative to place those Units into a FareShare Cage.”

[759]If the number of units over was less than 10, then it was difficult to understand why the retention bar would be required to be put in place.

[760]In the circumstances, we concluded that the respondent’s evidence on paragraph 6.193 of the EVJD for Mr Todd was so lacking in cogency that we had to reject the factual assertion made in that paragraph. We did, however, doubt whether that was going to make any difference to the evaluation of the work of Mr Todd for the purposes of section 65(6) of the EqA 2010. Goods in: checking; paragraphs 6.194-6.238 of the EVJD for Mr Todd

[761]The job of checking goods received as described in D9/298 was straightforward. That referred (on page 4) to counting the “number of cases for the product” that the checker was scanning. That is a task which needed no explanation. Despite that fact, the respondent included this statement in paragraph 6.200 of the EVJD for Mr Todd. “Where a count was necessary arising from the above, if the job holder believed the Units were uniformly stacked, he used mental arithmetic to determine the total by multiplying the number of layers on the Pallet by the number of Units on each of those layers. Where necessary, with more uncommon and complicated sums, the job holder would use a pen and paper to undertake the multiplication.”

[762]We rather doubted that a checker would use pen and paper to do a calculation. That is because that would be less reliable than a calculator function on a mobile Case Numbers: 3304495/2018 & others 572 telephone or a simple hand-held calculator. If the respondent failed to provide a checker with a calculator, then that was in our view incapable of adding to the demands of the work of a checker. That is because in our judgment, it would mean it was open to an employer to argue that work was more demanding than it would have been if the employer had provided what a reasonably efficient business would have provided.

[763]In fact, we saw that in paragraph 6.6 of the EVJD for Mr Todd (as it stood at the start of the hearing before us, namely at D3/1.1/38) this was said. “Whilst the job holder could keep his mobile phone in a pocket during his shift, he was not allowed to use it on the warehouse floor (except in exceptional circumstances and with prior agreement from his Manager). Breaching this procedure would result in disciplinary action, depending on the circumstances.”

[764]In paragraph 3.4 of the same document, at D3/1.1/14, this was said. “At the same time [i.e. around 2008], Rechecking and Grid Walking, which had been a discrete element of the Checker role the job holder had previously done, was identified as a separate and standalone activity for the job holder. Throughout the whole of the Relevant Period the job holder was one of only a small number of Warehouse Operatives entrusted to undertake this specialist activity.”

[765]In those circumstances, it was in our judgment an inescapable conclusion that Mr Todd must, or at least should, have been permitted to use the calculator function on his mobile telephone if he had any doubt about the accuracy of his mental arithmetic. Paragraphs 6.204, 6.209, 6.218 and 6.221 of the EVJD for Mr Todd; dispute (in paragraph 6.204) over the precise kind of MHE used when moving a pallet to one side when a count resulted in a discrepancy; references to the use of discretion (paragraphs 6.209 and 6.218), and (in paragraph 6.221) a statement that care and attention was required

[766]While we thought that the resolution of the dispute maintained in regard to paragraph 6.204 of the EVJD for Mr Todd could not conceivably affect the IEs’ assessment of the demands of the element of the work of Mr Todd referred to in that paragraph (that being because it would make no difference in that regard whether or not Mr Todd used a manual pump truck or a Pedestrian PPT, since on the facts asserted in paragraph 6.204 he would have a choice as to the MHE that he used), we thought that the words to which the claimants objected in paragraph 6.209 might have been helpful. They would have been helpful if there had been a need in practice to exercise discretion. They were to the effect that Mr Todd had to decide whether to top an over-height pallet then and there, or leave it to be done later. However, as the evidence given in cross-examination by Mr Todd to which the claimants pointed in their closing submissions (it was at pages 49-50 of the transcript of day 25) showed, he did not in practice make a decision on that issue as such. Rather, if there was a Case Numbers: 3304495/2018 & others 573 Layermaster or VOPT available, then he would use that available MHE to do the topping himself. If no such MHE was available, then he would leave that task to be done by someone else later.

[767]So, even the words proposed by the claimants (“If the Pallet was over-height, the job holder decided whether the Pallet should be Topped immediately or could wait and be Topped later.”) were wrong. The relevant factual situation is as stated by us in the last two sentences of the preceding paragraph above.

[768]Similarly, it added nothing to say, as it was in the respondent’s proposed words for paragraph 6.218 of the EVJD for Mr Todd, that he “had discretion to decide the number of empty Pallets to use for Breakdown”. We agreed with what the claimants submitted in this regard, but on the basis not that Mr Todd did in practice use the minimum number he could, but on the basis that it was obviously part of the work of a comparator breaking down pallets to do that.

[769]Equally, paragraph 6.221 of the EVJD for Mr Todd added nothing material to the factual situation: if, as it was said in paragraph 6.220 of that EVJD, the checker had “checked the description on the packaging of each Product, its OCC Code and/or its TPN Number”, then the fact that the packaging for products which had different OCC codes was nearly same (which was the foundation of the factual assertion in paragraph 6.221 of the EVJD) was irrelevant. Having said that, we accepted that there was a need (as claimed by paragraph 6.221) for “care and attention”, but that was obvious. Paragraphs 6.222 and 6.223 of the EVJD for Mr Todd; the potential number of different products on a single pallet

[770]As an assertion of fact, paragraph 6.222 of the EVJD for Mr Todd was unobjectionable. It was in these terms. “Multi-Product Pallets could contain up to 100 different Products from a single supplier stacked randomly onto a Pallet by the Supplier although the average received into the DC during the Relevant Period was between 10 and 15 i.e., a Pallet may have included multiple different Product types randomly stacked across the top, middle and/or bottom layers of the Pallet.”

[771]That, however, was at best of only dubious relevance. The claimants proposed instead that it be found by us as a fact that (and here only that) “Multi-Product Pallets contained an average of 10 to 15 different Products.” But, we inferred, the reason for paragraph 6.222 of the EVJD for Mr Todd was to illustrate the need to pay attention when breaking down a multi-product pallet, which those words would do less well than those proposed by the respondent. However, that need was (we repeat) obvious. In addition, what was said in paragraph 6.222 was in reality another way of saying what was in paragraph 6.221. Paragraph 6.223 was also in part a further additional way of asserting that there was a need for care. That was because of its Case Numbers: 3304495/2018 & others 574 first sentence. Its second sentence was, however, material, if, that is, the IEs concluded that going to the goods in desk “to request the correct OCC Code for scanning” added to the demands of the work. The whole of that paragraph was as follows. “This added to the complexity of distinguishing between different Products/Product types, as did factors such as packaging/labels being written in a foreign language and/or the OCC Code not being recognised by the AMC when scanned. At least once each day, the job holder was then required to attend the Goods In Desk to request the correct OCC Code for scanning.” Product type codes and moving stock by hand; paragraphs 6.224-6.231 of the EVJD for Mr Todd

[772]Similarly, paragraphs 6.224-6.226 and 6.228-6.230 of the EVJD for Mr Todd (paragraphs 6.227 and 6.231 were agreed and were material) added at best little that was material as far as we could see. They were objected to by the claimants on the basis that they were772.1 “Exaggeration / misleading / unclear” (that was the first three of them),

772.2 “Exaggeration” (paragraph 6.228),

772.3 “Analysis / evaluation / comment” (that was said about paragraph 6.229 which was in these terms only: “The movement of these Units by hand during Breakdown was physically demanding on the job holder.”), and

772.4 Analysis / evaluation / comment. Exaggeration.” That was said about paragraph 6.230, which was in these terms. “It was for the job holder to decide whether to count the number of Units of each different Product during Breakdown or whether he waited until he had completed the Breakdown of the Products and then used mental arithmetic to calculate those numbers, having stacked the Units on the Pallet in such a way as to enable them to do that.”

[773]The claimants proposed the deletion of paragraph 6.224 and the replacement of paragraphs 6.225 and 6.226 of the EVJD. The claimants’ proposed words for paragraphs 6.225 and 6.226 were about the more substantial parts of paragraphs 6.224-6.226 of the EVJD for Mr Todd as proposed by the respondent. The claimants’ proposed replacement words were as follows. ‘6.225 Product type codes were used to identify Products that were not allowed to be Broken Down on to the same (new) Pallet. If the job holder Case Numbers: 3304495/2018 & others 575 attempted to do that, the AMC (recognising the SSCC Codes and OCC Codes for those “do not mix” Product types) would not allow Units of more than one Product type to be scanned on to the new Pallet (at the relevant grid location). 6.226 The job holder was able to recognise many products which were not allowed to be broken down together and tried to avoid putting them onto the same pallet during Breakdown.’

[774]We doubted that the IEs would need to know about the things which were the subject of the original versions of paragraphs 6.224-6.226 of the EVJD for Mr Todd, but if they did then the claimants’ proposed words were in our view a slightly better description of the factual situation than those proposed by the respondent.

[775]We agreed with the claimants’ proposed correction of the factual assertion in paragraph 6.228 of the EVJD for Mr Todd. That was because he would not be continuously “reaching, bending, crouching and carrying Products between Pallets”: he would be doing that repeatedly. However, the content of paragraph 6.228 of the EVJD described something which was obvious in that it was a necessary consequence of doing the job of moving stock from one pallet to another.

[776]Paragraph 6.229 was plainly meaningless here. That is because what was in issue was what was the work of the comparator, i.e. what did the respondent require him to do, and what were the demands placed on him by that work. Stating in general terms that something is “physically demanding” was in our view of no assistance here. That was because(1) the extent to which something is physically demanding varies according to the individual, and

(2) the demands of the work can be inferred by the IEs from the description of the task in paragraph 6.227, which was in our view apt and was in fact agreed.

[777]In place of the respondent’s words for paragraph 6.230 of the EVJD for Mr Todd, the claimants proposed these words. “The job holder could count the number of Units of each Product as he moved them during the Breakdown process or once that process was complete.”

[778]Even those words seemed to us to be unnecessary. That was because all that the IEs and we needed to know was that a person doing the job of breaking down a pallet had to count the number of units of each broken down product and that (as seemed to be highly likely, if not a certainty) the task would be prompted by the AMC. Goods in: topping; paragraphs 6.239-6.273 of the EVJD for Mr Todd

[779]None of the disputed factual assertions which were left after allowing for what the claimants proposed as an alternative statement of the relevant facts in those parts of paragraphs 6.239-6.273 of the EVJD for Mr Todd which were at least in part Case Numbers: 3304495/2018 & others 576 disputed, was in our judgment material. That is to say, taking into account what the claimants proposed as statements of fact for the disputed parts of those paragraphs, showing with what the claimants agreed, there were assertions of fact made by the respondent with which the claimants disagreed and those assertions were about things which were not capable of affecting the assessment by the IEs of the demands of the work described in those paragraphs.

[780]For the avoidance of doubt, while the claimants proposed the deletion of paragraph 6.258 of the EVJD for Mr Todd, which was about the need for Mr Todd to reach across the top layer of trays or packages when using the VOPT, the claimants’ submissions on that paragraph included a statement of fact, and we thought that that statement was apt. That was as follows. “The job holder did not reach repeatedly across the width of the pallet – at most he reached half way across the pallet to the nearest edge of the furthest tray to slide it across to the VOPT.” Re-checking and grid walking; paragraphs 6.274-6.343 of the EVJD for Mr Todd Introduction and overview

[781]We refer in paragraph 188 above to the policy and procedure document for “Grid Walking” at D9/569, dated “December 2012”, and the updated version (dated “2018- 07”) at D9/634. Those documents provided little by way of illumination for the uninformed observer of the tasks described in paragraphs 6.274-6.343 of the EVJD for Mr Todd. Thus, those paragraphs were informative and their content was relevant at least for the most part (although there was some repetition and unnecessary text, for example the summary in paragraph 6.292 which, however, was agreed). Whether the IEs needed to know the precise details of the work, as stated in those paragraphs, was not so clear. Overall, the purpose of the work was as described in paragraph 6.276, which in our view said (if nothing else by implication) all that needed to be said about the work itself. That paragraph was in these terms (which were agreed). ‘The purpose of the rechecking and Grid Walking functions was to review and investigate various different “mismatches” between the data held in the DC’s Stock control system and the volumes and location of all items of Stock actually being processed from Goods In readiness for Assembly.” Rechecking: paragraphs 6.274-6.324 of the EVJD for Mr Todd

[782]In the next paragraph, namely paragraph 6.277 of the EVJD for Mr Todd (the text of which was also agreed), reference was made to the “Stock reconciliation errors identified on his AMC”. However, it appeared from paragraph 6.280 of that EVJD that before 2017, those errors were identified on “system-generated (paper) Exception Reports (called OR50 reports), which the system produced automatically as soon as Case Numbers: 3304495/2018 & others 577 each delivery had been Checked by the relevant Goods In operative”. In either case, the errors were identified before Mr Todd’s relevant work started, and that work was to investigate the errors. Plainly, that required sustained concentration and attention to detail. We wondered whether the rest of the rechecking work (i.e. as recorded up to and including paragraph 6.324 of the EVJD for Mr Pratt) was obvious in that it could be inferred from what we say above in this paragraph and at the end of the preceding paragraph. That which was obvious included even what was said in paragraph 6.305 of the EVJD for Mr Pratt about moving an “over” from one pallet to one where there was a corresponding “short”. That was because doing that was an obvious consequence of being required to correct errors as far as possible.

[783]In any event, the IEs can take into account all of the agreed parts of paragraphs 6.274-6.324 of the EVJD for Mr Todd when evaluating that work. Most of those paragraphs were agreed. As for the disputed parts of that passage, we agreed with what the claimants said (including their proposed replacement words) except that we thought that what was said in paragraph 6.287 of the EVJD was helpful by way of background, and (assuming that it was relevant) a better place for its content than paragraph 3.23 of the EVJD. In addition, we thought that the claimants’ closing submissions (in the far right column of the spreadsheet in which the closing submissions were made) in response to that paragraph referred to factual matters which the IEs and we both could and should take into account. Those factual matters were as follows:783.1 “the job holder did not review system information for every grid location on a shift, so the inclusion of the total number of locations is irrelevant and potentially misleading”, and

783.2 “there is no adequate evidence that the number of Grid locations was 931 during the Evaluation Period. 540 was the figure given in the first 4 versions of the JD which must be presumed to have had an evidential basis. Tony White accepted in evidence that he himself did not count them, and that there must be a record of the number on the system which would not be difficult to print out but which has not been disclosed.”

[784]We did wonder how the varying frequency with which Mr Todd did the work of grid walking and rechecking (as recorded in paragraph 6.317, which was agreed) could be taken into account by the IEs, but we noted that in paragraph 6.317 the frequency was averaged out as “2 to 3 times per week”. Grid-walking (or lane sweep); paragraphs 6.325-6.343 of the EVJD for Mr Todd

[785]As with paragraphs 6.274-6.324 of the EVJD for Mr Todd, most of paragraphs 6.325- 6.343 of that EVJD were agreed. If and to the extent that a paragraph was the subject of a dispute, we agreed with what the claimants submitted about the disputed matter (ignoring for this purpose the typographical errors in the proposed text for paragraphs 6.338 and 6.341). Case Numbers: 3304495/2018 & others 578 Craned battery changes and other things relating to batteries; paragraphs 6.344- 6.379 of the EVJD for Mr Todd Craned battery changes; paragraphs 6.344-6.363 of the EVJD for Mr Todd

[786]We refer above to the evidence relating to the use by Mr Todd of a crane to change MHE batteries. We do so in paragraphs 297-298, 717 and 730-731 above. We also refer there to the training materials relating to changing batteries using a crane. In particular (but not only) in the light of what we say in those paragraphs above, we thought that paragraph 6.345 of the EVJD for Mr Todd was accurate, although it was for present purposes unnecessary given what we say in paragraphs 297-298, 717 and 730-731 above. In addition, we thought that the words of paragraphs 6.353 and 6.357-6.359 of the EVJD for Mr Todd could be taken into account by the IEs if and to the extent that the IEs found them to be a helpful addition to the content of D1/3/9. We ourselves doubted the need for there to have been more said here than that the content of D1/3/9 stated the work sufficiently, and that the frequency with which the work had to be done was stated in paragraph 6.344 of the EVJD.

[787]As for that frequency, we agreed with the claimants’ analysis of the evidence and therefore their proposed words for paragraph 6.344. We also preferred the words proposed by the claimants for paragraph 6.348, which made more sense than those proposed by the respondent and also (and critically) were consistent with what was said in columns 1 and 3 of D1/3/9. Similarly, we agreed with the words proposed by the claimants for paragraph 6.350, which were consistent with what was said at the bottom of column 1 on D1/3/9. We also agreed with the claimants that paragraphs 6.354 and 6.355 of that EVJD were about irrelevancies (in the form of the presence of operatives working in, waiting in, or passing through the battery bay). Changing the battery on a layermaster truck: paragraphs 6.364-6.373A of the EVJD for Mr Todd

[788]Contrary to the claimants’ submissions on the content of paragraphs 6.365-6.368 and 6.372 of the EVJD for Mr Todd, which described what he did when changing the battery of a layermaster truck, we thought that parts of what was said in those paragraphs might be helpful to the IEs and us in understanding the difficulties of driving a layermaster truck across the DC and then changing its battery. The truck itself was shown in the picture at D9/0.2/39, where there was a photograph of it in its fully extended position, that is to say with the four-way clamp at the highest point it would go upwards. However, the truck was shown more informatively in the photographs at D9/492/1, D9/492/3 and D9/492/5. It was certainly larger than some other pieces of MHE. It was not said expressly in the EVJD for Mr Todd whether or not a layermaster truck was more difficult to drive safely around a DC than any other large piece of MHE such as a LLOP, but that was implied. In addition, what Mr White said in paragraph 121 of his first witness statement suggested that the battery of a layermaster truck was (even) bigger than the batteries of some of the other larger Case Numbers: 3304495/2018 & others 579 pieces of MHE. The photograph of the battery compartment at D9/492/4 showed a bigger battery than the ones which appeared to be for LLOPs at D9/487/2, but a smaller battery than the forklift truck batteries shown at for example D9/0.1/16.

[789]As a result, we accepted that what was said in paragraphs 6.365-6.368 and 6.372 of the EVJD for Mr Todd might assist the IEs and us, although we thought that there had some over-egging of the pudding in those paragraphs. For example, the claimants’ submissions about the content of paragraph 6.366 of that EVJD were cogent, pointing out as they did that when travelling from the goods in area to the battery bay, the driver of the layermaster truck would not go down any aisles so there would be no danger of the truck bumping into overhead signs. In addition, the training document at D9/491 relating to moving a layermaster truck was in substance the same as the training document at D9/484 relating to moving a LLOP, which showed that there was no fundamental difference between moving a layermaster truck and moving a LLOP. The work which the respondent called “Inside Pallets”; paragraphs 6.380-6.393 of the EVJD for Mr Todd

[790]There was similar over-egging of the pudding in paragraphs 6.380-6.382 of the EVJD for Mr Todd, and we accepted the claimants’ submissions about the facts asserted in those paragraphs. So, what the claimants proposed as factual statements instead of what the respondent proposed in those paragraphs was in our judgment accurate. The work included using a pallet stacker, to which we refer in paragraphs 34-36 above, and had to be seen in the light of the documents to which we refer in paragraphs 91 and 183 above. We have already dealt (in paragraph 701 above) with the proposed additional words of paragraph 6.385 of the EVJD for Mr Todd concerning the impact of rainwater on a pallet. The rest of the EVJD for Mr Todd

[791]We believed that the other disputes maintained in regard to the contents of Mr Todd’s EVJD did not need to be determined. That was because of one or more of the things said in paragraphs 9-78 of our second reserved judgment (at pages 5-28 above). The work of Mr Pustula in so far as the disputes in relation to it are not determined above, whether directly or indirectly Introduction; an overview of the work done by Mr Pustula and our determination of the proportion of time spent by him on the various tasks which he did in fact do

[792]The work of Mr Pustula was summarised in the EVJD for him as it stood by the time of the hearing (G/313.3) as consisting principally of792.1 assembly, during which time Mr Pustula spent (according to paragraph 3.9 of the EVJD at G/313.3; any reference below to the EVJD for Mr Pustula is to Case Numbers: 3304495/2018 & others 580 that version of it) approximately 60% of his working time in the +1 chamber at Hinckley; and

792.2 the management of merchandising units (abbreviated by the parties to, and referred to by us in what follows below as, “MUs”).

[793]The work of assembly required no further explanation here. The work done by Mr Pustula in relation to the management of MUs, however, did. It was summarised in paragraphs 3.16 to 3.23 of the EVJD for Mr Pustula. That summary was unnecessary, because it was the demands of the work that were in issue here, and they were not revealed by a summary. One part of the summary (paragraph 3.17) was, however, a pure repetition, and for convenience we consider it here. In addition, what was said in paragraph 3.20 was relevant in helping us to understand what it was that the respondent asserted about the role of Mr Pustula in regard to the management of MUs.

[794]In paragraph 3.20 of the EVJD for Mr Pustula, the respondent described him as being “responsible for:(a) maintaining the required standards in the Aisles within the +12 Chamber and ensuring MUs he prepared for delivery during the course of his night shift, could commence without unnecessary delays;

(b) managing the space available for MU (and other UOD) storage across the +12 Chamber, to ensure all operatives (including himself) were able to locate and retrieve any UODs he/they needed during the night shift as quickly, safely and easily as possible; and

(c) responding to enquiries from Loaders seeking to locate MUs unavailable in the Aisle location identified on their AMC.”

[795]The claimants responded to that paragraph by submitting that that was an exaggeration and proposing the following alternative words. “The job holder kept the locations where he was collecting MUs tidy, made sure when delivering MUs to Aisle / Grid locations that he left them tidy, and sometimes had to answer queries from colleagues who could not find a particular MU in the Aisle location where their AMC said it would be.”

[796]We agreed with that submission and those proposed words.

[797]It was said in paragraph 3.17 of the EVJD for Mr Pustula (and that paragraph was repeated, almost word for word, in paragraph 6.200 of that EVJD; the only the word “management” in paragraph 3.17 was replaced by “collection and allocation”, but the heading to paragraph 6.200 was “Management of MUs”) that Case Numbers: 3304495/2018 & others 581797.1 when he was “deployed to the management of MUs, [he] worked independently of close supervision and without reference to an AMC”, and

797.2 “On 90% of his night shifts, the job holder was the only Warehouse Operative responsible for the management of MUs.”

[798]The claimants responded to the content of both of those paragraphs of the EVJD by saying that it was “Exaggeration / misleading / evaluative”, and that a more accurate description of the situation was this. “When deployed to the management of MUs, the job holder worked from a strip of UOD labels provided to him rather than by reference to an AMC. On 90% of his night shifts, the job holder was the only Warehouse Operative dealing with MUs.”

[799]We thought that the latter words did not reflect the reality, which was that Mr Pustula was not the only warehouse operative “dealing with MUs”, as others were, necessarily, doing something in relation to them, which might be called dealing with them. So, the word “responsible” was apt. The relevant issue was what were the demands which arose from being so responsible. That was a matter of detail, to which the respondent referred later on in the EVJD for Mr Pustula (in paragraphs 6.201-6.263), and to which we return in paragraph 819 onwards below. As for paragraphs 3.17 and 6.200 of the EVJD for him, if Mr Pustula worked from “a strip of UOD labels provided to him” instead of using an AMC, then it was equivalent to using an AMC and it was misleading to imply that there was any relevant difference.

[800]In paragraphs 3.24-3.25 of the EVJD for Mr Pustula, it was said that he also did some work of “dekitting”, meaning (as stated in paragraph 3.24 of that EVJD) collecting “groups of empty Cages and on rare occasions Danish Trollies and Milk Cages (that had been returned from stores) from the rear of Trailers and transport[ing] them to various designated storage locations within the middle of Assembly Aisles using a Loading Truck adapted for this purpose”. While the words of paragraph 3.25 of the EVJD for Mr Pustula were slightly ambiguous, we read them (as did the claimants) as meaning that Mr Pustula did that work only “up until 2016”, although precisely when in that year he stopped doing it, or whether he had stopped at the end of 2015, was not stated. When doing the task, it was said in paragraph 3.25 of the EVJD, “[Mr Pustula] normally remained on the task for the whole of his night shift, on average 2 - 3 times per month, although [he] could be asked to return to any of his other duties according to business need.”

[801]The claimants’ response to what was said about dekitting in paragraphs 3.24-3.25 of the EVJD for Mr Pustula was that while the description of the work was accepted by them,801.1 “the only evidence that the job holder did any dekitting in the Evaluation Period appears to be the job holder's confirmation (eg paragraph 18 of his Case Numbers: 3304495/2018 & others 582 statement) that he did some dekitting and a single one-word reference in his 2013 annual appraisal (at {D2/8/108}) to him liking ‘dekit’”, and

801.2 “The Denver system includes a specific code for dekitting, but the data provided by the Respondent in respect of the job holder at {D2/9.1} does not include any entries for dekitting, and the Respondent has provided no explanation as to why it says that he did dekitting but it is not recorded anywhere.”

[802]Thus, it was submitted by the claimants, there was a “lack of evidence [that Mr Pustula] did this [task of dekitting]”, and, as a result, it was said, paragraphs 3.24 and 3.25 of the EVJD should be deleted.

[803]It was in our judgment unlikely that in 2022 or 2023 Mr Pustula would have had an accurate recollection of the extent to which he did the work of dekitting between 2012 and 2016, but the fact that it was referred to by him in his 2013 appraisal as being something that he liked doing (it was the third of the three things that he liked doing, the other two being(1) “Picking”, and

(2) “MU’s”) meant in our view that the claimants’ submission that we should conclude that he did not do it had to be rejected. The description of the work of dekitting was detailed and was in paragraphs 6.264-6.317 of the EVJD for Mr Pustula. We return to those paragraphs below, when stating (in paragraphs 830-851) such conclusions as we concluded needed to be stated in relation to the disputes maintained about the content of those paragraphs.

[804]In paragraph 3.26 of the EVJD for Mr Pustula, it was said that he also on six occasions “from 2015 to 2017” did the task called by the respondent “inside pallets”, which, according to that paragraph, meant “collect[ing] individual empty Pallets from common workspaces at the end of each of the Aisles across the warehouse, [and] removing them from the Pallet Stacker (in groups of 10) using either a Ride On PPT (Photo G39) or a Pedestrian PPT”. The claimants did not dispute that Mr Pustula did that task on six occasions only during the relevant period, but submitted that the precise period was “from May 2015 to November 2017” and that the time spent was “sometimes ... under 30 minutes and on other occasions up to around 2 hours”. We doubted that such precision was going to assist us or the IEs. Even on the respondent’s evidence, it was done over a period of 3 years, with a frequency which was best characterised (applying H31) as “Rarely”, and it was best characterised as taking at least sometimes no more than 5%-20% of the shift, which was the lowest bracket for the “Percentage of time spent undertaking specific activities” stated on that page.

[805]In paragraph 3.27 of the EVJD for Mr Pustula, it was said that on 82 occasions during the relevant period, he did the work called by the respondent “set up and standards”, which was “assist[ing] with the preparation of empty Cages for all Assembly Aisles within the +1 Chamber”. Averaged out over the period of six and a half years or so, that was approximately 12 times per year. At most, applying H31, that was “regularly”, the definition of which was “In a week or month”. Case Numbers: 3304495/2018 & others 583

[806]In fact, the claimants asserted that “about 75%” of the work of set up and standards was done during 2014 and 2015. Their submissions in that regard also related to the amount of time spent doing the work, and included the following paragraphs. “1. The Denver data provided by the Respondent shows that the vast majority of occasions were in 2014 and 2015, with far fewer in other years. 2. It also shows that there were only 4 full shifts and that the average time spent on the task when it wasn’t a full shift was about 2.5 hours.”

[807]The respondent’s proposed words for paragraph 3.27 of the EVJD for Mr Pustula by the time of closing submissions were these. “Throughout the Relevant Period, the job holder was deployed on 82 occasions to assist with the preparation of empty Cages for all Assembly Aisles within the +1 Chamber. Between the start of the Relevant Period and 9th August 2014, the job holder undertook Set up and Standard [sic] during 1 full shift and 20 partshifts (when doing part shifts, for a period of 2 hours at a time on average). From 9th August 2014 until end of February 2018, the job holder undertook Set up and Standard during 18 full shifts and 41 part-shifts (when doing part shifts, for a period of 2 hours at a time on average).”

[808]Unsurprisingly, Mr Pustula was unable when he was cross-examined on this, as recorded at line 10 on page 25 of the transcript of day 28, to remember precisely whether he ever did a full shift of set up and standards. The respondent’s submission in relation to(1) its position set out in the preceding paragraph above and

(2) the claimants’ challenge to it was this, and only this. “This revisions [sic] to this paragraph is [sic] supported by the evidence before the Tribunal and there is no good evidential basis for challenge.”

[809]In response to it, the claimants relied on the Excel spreadsheet at D2/9.1. That document had 6 tabs, and the “Denver Data” tab, which was the fifth one, had in it 42082 rows, each of which was an entry for time taken on a particular task by Mr Pustula. The second tab was entitled “WeekByWeek”. Neither of those tabs was in a form which (without guidance from the parties) was helpful to the task that we were required to carry out as part of the stage 2 hearing which led to this document. Nor were the “Pivot tables” in the sixth tab of any overt assistance here. In row 35 of the fourth tab, entitled “Category”, it was said that “Setup & Standard” work (categorised in column C as “Assembly”) constituted 1.89% of Mr Pustula’s work during the whole of the relevant period. Probably the most helpful part of the document for our purposes was the chart tab, which was the third one, and that showed by a visual chart the work done by Mr Pustula during the relevant period as recorded on the Denver system. The vast majority of it was either assembly or the management of MUs, but with assembly being the large majority of the work of Mr Pustula for the first two and a half years of the relevant period. The charts at tab 3 spoke for themselves, Case Numbers: 3304495/2018 & others 584 and we concluded that the IEs should take from those charts whatever they regarded as being relevant and informative. We did not attempt to verify the assertions of the claimants in numbered paragraphs 1 and 2 which we have set out in paragraph 806 above, because809.1 in order to do so we would have needed assistance from the claimants to interpret the spreadsheet on which they were based,

809.2 the parties agreed that Mr Pustula did the work on 82 occasions during the relevant period,

809.3 the respondent’s factual assertions about those 82 occasions were not supported by references to any documentary evidence, and

809.4 given the content of the work of setup and standards (which was dealt with in paragraphs 6.332-6.339 of the EVJD for Mr Pustula, which were in substance agreed; we return to those paragraphs in paragraph 854 below) we were unable to see how a determination of the correctness or otherwise of the assertions could affect the determinations of the IEs about the demands of the work done by Mr Pustula for the purposes of section 65(6) of the EqA 2010.

[810]However, if the IEs believe that they need a determination by us of the question whether the claimants’ assertions or those of the respondent were correct about the 82 times during the relevant period when Mr Pustula did the work of setup and standards, then we will consider their request to do so, which will have to be made under rule 6(3) of the EV Rules. When writing this document, we could not see how we could come to a reliable determination of that sort without further input from the parties.

[811]There was the following separate statement in paragraph 3.28 of the EVJD for Mr Pustula about battery changes. “The job holder monitored battery levels on all MHE he used for all duties throughout his night shifts and to undertake battery changes as necessary. Battery changes could be required as frequently as more than once a night shift. The time taken to undertake battery changes was included in his measured time for Assembly.”

[812]We thought that it was highly unlikely that the respondent would have bought, or countenanced the use of, MHE that had batteries whose charge would not normally last at least the whole of an employee’s working day. We were therefore surprised by the proposition that “[b]attery changes could be required as frequently as more than once a night shift”. However, the proposition was not challenged by the claimants. Case Numbers: 3304495/2018 & others 585

[813]The proportion of time spent on assembly was, according to paragraph 3.15 of the EVJD for Mr Pustula, 64% of Mr Pustula’s working time. That was disputed by the claimants on the basis that the “Overall working time statistic is not helpful, as this does not adequately describe JH’s work over the period.” It was the claimants’ position (based on the content of the spreadsheet at D2/9.1) that the amount of time spent by Mr Pustula on the tasks of(1) assembly and

(2) MUs during the relevant period, was as follows. “Time period % Assembly / % MUs 18/2/12-31/12/12 98.7 / 0.8 1/1/13-31/12/13 96.0 / 3.6 1/1/14-30/6/14 94.0 / 5.2 1/7/14-31/12/14 75.7 / 23.3 1/1/15-30/6/15 67 / 32 1/7/15-31/12/15 58 / 40 1/1/16-30/6/15 50 / 49 1/7/16-31/12/16 47 / 51 1/1/17-30/6/17 42 / 57 1/7/17-31/12/17 31 / 68 1/1/18-31/8/18 38 / 61”

[814]The respondent’s submission in support of the content of paragraph 3.15 of the EVJD for Mr Pustula was this. “Detailed breakdown is provided at {G/94.4/1} and later in the sections that follow. This is a summary section of the EVJD. Details follows [sic] in the sections below. This is appropriate and in line with the IE Guidance {G/11/3}.”

[815]The document at G/94.4 was a single page summary, plainly created by the respondent, entitled “Robert Pustula – Timeline and Deployment Summary”. It had three columns. The first was for the “(Approx) Date” and the second was entitled “Detail of Change”. In that second column there were cross-references to paragraphs of the EVJD for Mr Pustula. The third column was entitled “Deployment (Time Allocation)”. Nothing was stated by way of support for the evidential propositions made in that third column. Thus, the document at G/94.4 was not evidence. It was at best a statement of the result of an analysis by someone, who was not identified, of documentary or (if different) digital evidence which was not identified.

[816]Given the charts at tab 3 of the spreadsheet at D2/9.1 to which we refer in paragraph 809 above, we concluded that the claimants’ figures set out in paragraph 813 above Case Numbers: 3304495/2018 & others 586 were likely to be accurate, or at least sufficiently accurate to be accepted. We therefore accepted them. The task of assembly as done by Mr Pustula; paragraphs 6.53-6.199 of the EVJD for him

[817]The task of assembly as done by Mr Pustula was the same as that which was done by Mr Pratt. The words used by the respondent in the EVJDs for them to describe the task of assembly differed in minor ways only (which we identified by doing a digital comparison of the applicable sections in the EVJDs for both of them). Given that we had already determined such disputes as we concluded needed to be determined in relation to the work of Mr Pratt, which themselves were determined in the light of such determinations as we had already made about the work of assembly in an ambient DC, we saw no need to address the disputes maintained by the parties in relation to the assembly work of Mr Pustula.

[818]We add (for the avoidance of doubt) that818.1 we saw that the content of paragraphs 6-134-6.136 of the EVJD for Mr Pustula (concerning what the respondent there referred to as “Paperpick Assignments” and “Label Pick Assignments”) was not mirrored in the equivalent part of the EVJD for Mr Pratt, which was paragraphs 6.404-6.405, to which we refer in paragraphs 678-682 above,

818.2 in paragraph 6.148 of the EVJD for Mr Pustula it was said that it was Mr Pustula’s understanding that no allowance would be made in the application of the PI rates to his work for the fact that he had to complete a layerpick assignment, and that that caused him anxiety, whereas in paragraph 6.418 of the EVJD for Mr Pratt, the position in that regard was “not transparent to the job holder”, and

818.3 we saw no material difference between a paper assignment and one done using an AMC, and no difference for present purposes between the impact of what was said in paragraph 6.148 of the EVJD for Mr Pustula and what was said in paragraph 6.418 of the EVJD for Mr Pratt. The management of MUs by Mr Pustula; paragraphs 6.200-6.263 of the EVJD for him Paragraph 6.201 of the EVJD for Mr Pustula: the irrelevance of the excellence (or otherwise) of his performance

[819]For the avoidance of doubt, for the reasons given in paragraph 64 of our second reserved judgment (at pages 23-24 above), the statement in paragraph 6.201 of the EVJD for Mr Pustula was irrelevant for the purposes of a stage 2 hearing. That paragraph was as follows. Case Numbers: 3304495/2018 & others 587 ‘In his annual review on 7 September 2013, the job holder’s Manager recorded that the job holder was a “great support for the Chill 2 Manager” in relation to his work on MUs.’ Paragraphs 6.202-6.204 of the EVJD for Mr Pustula: the absence of scrutiny

[820]What was said in paragraphs 6.202-6.204 of the EVJD for Mr Pustula about the absence of scrutiny of his work in the management of MUs was no different in effect from the “burden of accountability and responsibility” referred to in paragraphs 6.363- 6.377 of the EVJD for Mr Hornak to which we refer in paragraph 542 above. Paragraphs 6.205-6.263 of the EVJD for Mr Pustula; the disputes relating to the details of the task of managing MUs as done by Mr Pustula

[821]We agreed with the claimants’ submissions about the things which were the subject of dispute in the following paragraphs of the EVJD for Mr Pustula: 6.215, 6.218 (which, for the avoidance of doubt, we thought overstated the position; it was in our view sufficient for the IEs and us to know that Mr Pustula had to listen to tannoy announcements, but since, we assumed, that was part of the work of all comparators, and probably all claimants, we concluded that paragraph 6.218 added nothing material to what was in the two preceding paragraphs above it), 6.221, 6.224, 6.227, and 6.229 (in relation to which it appeared that the claimants’ submissions were advanced on the basis that the figures for the average weights of MUs were unreliable, but if the respondent’s figures in spreadsheets were to be relied on then the respondent’s proposed words were inaccurate and the correct figures were as stated by the claimants).

[822]As for the claimants’ submissions in regard to paragraph 6.230 of that EVJD, we accepted the proposition that saying that the task was “physically demanding given the weights involved” was evaluative only, but we concluded that if Mr Pustula did in fact push, pull, or otherwise cause about 300 MUs weighing on average 168kg to move then, even though that 168kg would be on wheels, that would require some effort. The impact of that requirement for the purposes of section 65(6) of the EqA 2010 was, however, in our view a matter for the IEs at this stage, and not us.

[823]We came to the same conclusion in regard to paragraph 6.238 of the EVJD for Mr Pustula. Assuming (which the claimants said should not be done, and which we did not do) that the figures given by the respondent for the weights of the things moved by the comparators were correct, what was said in paragraph 6.238 about the “overall weight [of MUs with 6 trays stacked on top] being ‘pushed through’ by” Mr Pustula “far exceed[ing] the weight of the MUs themselves” was meaningless for present purposes.

[824]We refer in paragraph 178 above to the documents at D9/554 (dated September 2011) and D9/611 (dated “2017-12”) stating the respondent’s policy and procedure for checking and putting away merchandising units. We refer in paragraph 17.13 Case Numbers: 3304495/2018 & others 588 above to D9/553 (dated September 2011) and D9/609 (dated “2017-12”) concerning “Picking Merchandising Units”. We refer in paragraph 17.18 above to D9/567 (dated November 2012) and D9/605 (dated “2017-12”), concerning “Assembling on Merchandising Units in Stockless Depots”. Plainly, the “Team Member” tasks in those documents were relevant here, but those documents were also helpful in that they stated the factual background to the disputed descriptions in paragraphs 6.239, 6.241 and 6.246 of the EVJD for Mr Pustula. So, for example, the following three bullet points in the “Picking merchandising units” box at D9/553/1 and D9/609/1 showed what was required by way of managing the space in which MUs were kept for picking. “• Merchandising units are placed neatly within store lane towards the front to help prevent them being moved to the wrong store lane or being misdirected• Only merchandising units with the earliest delivery date on the labels should be put in the store lanes

• Store lane moves are updated on the Denver system so that the sequence number on the merchandising unit label matches the store lane number”.

[825]The words of D9/554 for the same thing (this time in the box with the heading “Putting Merchandising Units in the Correct Area”) were different, and in fact less informative as far as we were concerned. In any event, we concluded that the words of D9/553/1 and D9/609/1 which we have set out in the preceding paragraph above were the best guide to what was required of Mr Pustula by way of managing the space where MUs were stored and picked at Hinckley.

[826]For the avoidance of doubt, we concluded that the reference in paragraph 6.246 of the EVJD for Mr Pustula to keeping “the Aisles and other areas between the storage locations ... tidy and free of any obstructions” was not a separate task but part of the obligation to clean as he went along, as stated in paragraph 6.400 of the EVJD for him.

[827]We concluded that the parties’ disputes in relation to the references to Danish trollies in paragraphs 6.242 and 6.244 of the EVJD for Mr Pustula did not need to be determined. That was because827.1 the number of “seasonal periods” that there were at Hinckley was not stated in paragraph 6.242,

827.2 the reference to paying “particular attention to other operatives” to avoid “damage to MHE or other equipment and/or injuries to those operatives”, as asserted in paragraph 6.244, was unlikely (even when read with paragraph 6.245, which the claimants objected to for the cogent reasons stated in their submissions in response) to help the IEs or us in deciding whether or not the Case Numbers: 3304495/2018 & others 589 work of Mr Pustula when moving Danish trollies differed materially from moving MUs, and

827.3 if and to the extent that there was any difference between moving MUs and moving Danish trollies, it is catered for by what we say in paragraphs 746- 748 above.

[828]The work of assisting loaders who were having difficulty finding for example an MU, stated in paragraphs 6.253-6.254 of the EVJD for Mr Pustula, was in our judgment an obvious incident of managing MUs. So was giving a loader a label for an MU which Mr Pustula had not had time to collect, as described in paragraph 6.256 of that EVJD. We therefore rejected the claimants’ submissions on those paragraphs. The frequency with which Mr Pustula was asked to help find a particular UOD was, we noted, stated in the agreed part of paragraph 6.255 (“2 to 3 times during the course of each night shift”.) Monitoring resource requirements in relation to managing MUs and working with other operatives on that task as and when required; paragraphs 6.257-6.263 of the EVJD for Mr Pustula

[829]In contrast, we agreed with almost all of the claimants’ submissions in response and in relation to paragraphs 6.257-6.263 of the EVJD for Mr Pustula about what was referred to there as “resource requirements”, i.e. about(1) the need for help from other operatives, and

(2) the manner in which Mr Pustula would work with other operatives who were assigned to work with him on managing MUs. We had the following two disagreements with what the claimants submitted.

829.1 We did not agree with the proposed replacement words for paragraph 6.258, because they did not cater for the asserted fact that Mr Pustula usually had someone to help him and that it was mostly “towards the end of the shift”. However, we found it difficult to see how the fact that Mr Pustula had assistance could in itself be relevant to what was his work for the purposes of section 65(6) of the EqA 2010. Presumably paragraph 6.258 should have been joined with paragraph 6.259, so that the content of paragraph 6.258 was simply a statement of the frequency with which Mr Pustula did what paragraph 6.259 described.

829.2 There was no justification for confining (in paragraph 6.260 of the EVJD) the frequency with which Mr Pustula supervised and/or gave guidance to newly employed operatives to “rarely”, although we accepted that there was no evidence before us about the frequency with which that occurred. What was relevant in our view was that Mr Pustula was required, as was Mr Jones for the reasons which we give in paragraph 528 above, to give assistance to newcomers. As we also say in that paragraph, however, we were not sure whether that requirement added to the demands of the job for the purposes Case Numbers: 3304495/2018 & others 590 of section 65(6) of the EqA 2010. We point out here in addition that the obligation to help newcomers applied also to the claimants. The work of “dekitting” as described in paragraphs 6.264-6.317 of the EVJD for Mr Pustula Did Mr Pustula open the door of a trailer and put down the dock leveller? Paragraphs 6.270-6.285 of the EVJD for him

[830]Mr Pustula said in an interview conducted by Mr Bryant on 15 June 2022, as recorded at D2/7/19, internal pages 74-75 (line 18 on page 74 to line 18 on page 75), that when dekitting,(1) he opened neither the bay door nor the trailer door and

(2) he did not put in place the dock leveller. That statement was not implemented in paragraphs 6.271-6.284 of the EVJD for Mr Pustula (because those paragraphs were written on the factual assumption, assertion, or basis that he did do those things) and in paragraph 69 of his first witness statement, Mr Pustula attested to the accuracy of those paragraphs. He concluded that paragraph with these words: “When I was asked about opening the Trailer doors during my conversation with the Claimants’ lawyers, it was unclear to me whether I was asked opening the Trailer doors or handling Dock Levellers. I did not want to say that I did not use a Dock Leveller”.

[831]He was cross-examined on paragraph 69 of his first witness statement. We did not accept his evidence in support of what was said in paragraphs 6.271-6.284 of his witness statement. That was because of the unequivocal statements made by him on 15 June 2022, when, without prompting or suggestion from any person acting on behalf the respondent, he stated what was in our judgment the truth.

[832]If we had concluded that Mr Pustula did indeed open the bay door and the trailer door, and then pressed the relevant buttons to get the dock leveller to move to its proper place, then we would have regarded those tasks as being sufficiently stated in the documents to which we refer in paragraphs 79, 142, 350-351 and 355-356 above. Trailer lighting: paragraphs 2.686-6.288 of the EVJD for Mr Pustula

[833]For the sake of convenience, we note here that we deal with the issue of lighting in trailers in fresh DCs in paragraphs 606-611 above. The issue of water ingress: paragraphs 6.294-6.295 of the EVJD for Mr Pustula

[834]We have in paragraphs 360-389 above set out, and in substance stated our conclusions in relation to, paragraphs 6.294-6.295 of the EVJD for Mr Pustula. We record here that Mr Pustula’s oral evidence provided strong support for what we say in paragraphs 360-389 above. That is because in his oral evidence, Mr Pustula emphasised the difficulties caused by water on a trailer. That was as recorded at Case Numbers: 3304495/2018 & others 591 lines 5-7 on page 177 of the transcript of day 27, where he said that it was “[s]ometimes ... really scary to get on the trailer.” Of course if it was dangerous to get onto the trailer then the respondent would not have required him to get onto it, or, if it did, then, we concluded, it could not have been regarded by us as part of his work to get onto the trailer, because it would have been unlawful for him to get onto the trailer and the respondent to require him to do so. Releasing strapping and nesting; paragraphs 6.299-6.305 of the EVJD for Mr Pustula

[835]The effort required to operate ratchet straps was the subject of a separate analysis in paragraphs 6.299-6.302 of the EVJD for Mr Pustula. That was because the operation of the ratchet straps was considered there in relation to the work of unloading and in the course of doing so releasing strapped cages.

[836]On 15 June 2022, in his interview with Mr Bryant asking questions, Mr Pustula said that he had no problems with undoing ratchet straps if he did it slowly. The full exchange was at the top of page 77 of the record of that interview, at D2/7/20, which we now set out. “Q. When you are going to remove cages from the trailers, I understand that there are straps, ratchet straps holding them; is that right? A. You have to undo them and hang them in the way that don’t interfere with if you are taking it out. Q. Did you have any problems undoing the straps? A. Not really, but you had to do everything slowly, don’t rush it. Q. For example, did you ever have to cut a strap because you couldn’t undo it? A. There were ratchets that were damaged but you would still be able to undo them.”

[837]By the time of closing submissions, these words were proposed as a factual assertion in paragraphs 6.301-6.302 of the EVJD for Mr Pustula. “Where the strap was folded within the ratchet mechanism, the job holder released the strap by pulling open the spring-loaded ratchet and forcing the twisted strap into the correct position at the same time. To do this, the job holder pulled the whole (tightened) strap towards him away from the Cages whilst at the same time pulling the ratchet handle forward with one hand and yanking the twisted strap sideways with the other hand at the same time. The job holder equated the effort required to be much greater than lifting a 20kg Tray above head height due to the multiple forces required to be used.”

[838]The word “yanking” suggested that some force was required as did the second paragraph’s description of the effort that was required. The first meaning of the word Case Numbers: 3304495/2018 & others 592 “yank” in the Shorter Oxford English Dictionary is to “Pull or jerk vigorously”, and the second one is to “Pull with a jerk”. That was inconsistent with what Mr Pustula first said about how to undo a ratchet strap when dekitting. That is because pulling or jerking vigorously, or even just jerking something, is the opposite of “do[ing] everything slowly”.

[839]Here again we concluded that Mr Pustula’s first answer was the correct one. That which we have set out in paragraph 836 above was therefore in our judgment what dekitting required when releasing the ratchet straps securing UODs in a trailer. Being wary of trapping fingers and toes; paragraph 6.304 of the EVJD for Mr Pustula

[840]We were not sure whether or not the claimants opposed the content of paragraph 6.304 of the EVJD for Mr Pustula, because in the second column of the part of the claimants’ submissions concerning the work of Mr Pustula dealing with that paragraph, where it was intended that the claimants would state whether or not the content was agreed, this was said: “NoYes”. In fact, the words of paragraph 6.304 (which were that “Whenever preparing Cages for removal from the Trailer, the job holder remained wary throughout to avoid trapping his fingers or toes in those Cages.”) were consistent with what was said in column 4 in the document at D2/3/14 (to which we refer first in paragraph 69 above), which was that in “push[ing cages in nests] into position in the trailer ready for MHE to be used to collect and move them to designated areas”, the dekitter had to be “wary of not trapping fingers or toes”. More on dekitting; paragraphs 6.306-6.317 of the EVJD for Mr Pustula

[841]Indeed, that document, at D2/3/14, was a straightforward and seemingly comprehensive statement of the work of a dekitter, including in a fresh DC, to which specific reference was made in the box at the bottom right hand corner of the document. That document was a slightly more informative version than the one which was first put before us at page 110 of the bundle for the respondent’s recast case, as we record in paragraph 69 above. The latter document was dated 18/09/13. The document at D2/3/14 was dated 10/04/18.

[842]However, in addition, the other documents referred to in paragraph 88 above relating to dekitting showed what the job of dekitting required. It was of some interest that we saw that in a proposed new paragraph of the EVJD for Mr Pustula, paragraph 6.316A, the respondent said that he was “advised to wear ear plugs when Dekitting due to the level of noise crated when transporting empty Cages”. Not only did (as we say in paragraph 89 above) the document at D2/3/14 state, but also the earlier document, at page 110 of the bundle accompanying the respondent’s recast case, stated, that it was “a mandatory legal requirement for hearing protection to be worn whilst carrying out internal dekit activities”. Given that statement, we failed to understand why it was said by the respondent (and agreed by the claimants) that a dekitter was only advised to wear ear plugs in that situation. Case Numbers: 3304495/2018 & others 593

[843]In fact, more by way of safety protection was required when dekitting. That was shown by what was said at the top of D9/379/5, which was this. “What safety precautions should be taken when unloading cages? Only pull off five cages at a time and make sure gloves, ear protection and safety shoes are worn.” Paragraph 6.307 of the EVJD for Mr Pustula; lining up the forks of the MHE used to remove cages or dollies when dekitting

[844]The words of the respondent for paragraph 6.307 of the EVJD for Mr Pustula by the time of closing submissions were in this form. “The job holder focussed and moved carefully to ensure to reverse the adapted Loading Truck correctly, so it lined up ideally first time with the Cages and Dollies being Dekitted. He did this to ensure the forks of the relevant MHE were both appropriately placed centrally and at the necessary depth under single and multiple empty Cages and Dollies.”

[845]The claimants opposed those words on the basis that “focussed” and “carefully” were “evaluative”. However, we agreed that it was necessary both to be focussed and to act carefully, but we also concluded that that necessity was implicit and obvious. We therefore concluded that it was for the IEs to give their opinion on, and us to assess, the demands of the work of lining up the forks of the MHE used to remove cages and dollies, envisaging that task using what we will call common sense and practical wisdom. Paragraphs 6.309 and 6.313 of the EVJD for Mr Pustula; was alertness required?

[846]By the time of closing submissions, the respondent maintained only the second of the two factual assertions which had originally been in paragraph 6.309 of the EVJD for Mr Pustula. That was that Mr Pustula “remained alert to the presence and movement of other loading and Assembly operatives, as well as other pedestrians working in the same areas as him.” The claimants said that “remained alert” was “evaluative”. However, at the top of column 5 of D2/3/14, it was said that the dekitter had to “[remain] vigilant for pedestrians / loaders / assemblers working in areas where dekit activity is taking place”. At the bottom of column 4 of the document at page 110 of the bundle attached to the respondent’s recast case there were words to the same effect, and the warning was repeated at the top of column 5 of that document, in the form of a warning that the dekitter had to “[remain] vigilant” for “other people in the vicinity” when “[driving] and [dropping] cages into the drop off area”. Thus, we rejected the claimants’ submission that the requirement to remain alert was “evaluative” and was therefore wrongly proposed as a statement of fact about the work of a dekitter. Case Numbers: 3304495/2018 & others 594

[847]Paragraph 6.313 of the EVJD for Mr Pustula was unnecessary when read against the background of what we say in the preceding paragraph above. Paragraph 6.309A of the EVJD for Mr Pustula; did the driver of a LLOP have to twist his body?

[848]The proposed new paragraph numbered 6.309A for the EVJD of Mr Pustula was unnecessary given the factor to which we refer in paragraph 220 above, which, as we say there, was applicable to the driving of a LLOP (which was, for the avoidance of doubt, what was referred to also by the respondent as a “Loading Truck”; that was stated so far as relevant at D2/1.1/25, which was page 24 of the updated EVJD for Mr Pustula). Paragraph 6.314 of the EVJD for Mr Pustula; was it part of the work of a dekitter to know why he was required to position nests of cages herringbone style?

[849]The parties agreed what was required by way of the storage of nested cages (“at an angle, herringbone style”) but they disagreed about the need for the dekitter to know why the respondent required them to be stored in that way. Just as a customer assistant benefited from knowing why something needed to be done a certain way, it was possible that it was part of the work of a dekitter to know why the cages had to be stored in a herringbone style. If it was not, then, we agreed, it was not a factual matter which had to be included in our factual determinations at this stage of the process (the stage 2 hearing).

[850]We could find no statement in any of the documents to which we refer in paragraph 88 above, which stated the requirements of dekitting, of the reason why nests of cages should be stored “at an angle, herringbone style”. We therefore agreed with the claimants’ submission on the second sentence of paragraph 6.314 of the EVJD for Mr Pustula, namely that it was an irrelevance for present purposes. If, however, it had been relevant, then we could not see how it could have added to the value of the work of a dekitter to know the reason why he was storing nests of cages “at an angle, herringbone style”. Paragraph 6.315 of the EVJD for Mr Pustula; what kinds of damage to UODs did a dekitter need to look out for?

[851]In contrast, the submissions of the claimants in response to paragraph 6.315 of the EVJD for Mr Pustula in its original form were shown by what was said at D9/402/3 to be wrong. The respondent had, however, by the time of closing submissions reduced the scope of paragraph 6.315 and it was agreed, with the respondent having accepted that a dekitter only needed to do something about a damaged UOD if he noticed it. We now record, however, that at D9/402/3, this was said, which(1) showed that a dekitter was required (the word used was “should”, but that was in our view a statement of a job requirement) to look out of damage to UODs, and

(2) was Case Numbers: 3304495/2018 & others 595 in our view determinative of what sort of damage to cages a dekitter needed to look out for: “As you unload the trailer you should check for any damaged cages. A damaged cage is one which has:

• wobbly/square wheels;

• missing wheels;

• broken doors;

• stray/broken metal.” The work of dealing with “Inside Pallets”; paragraphs 6.318-6.331 of the EVJD for Mr Pustula

[852]There was nothing more in paragraphs 6.318-6.331 of the EVJD for Mr Pustula than there was in one or both of the passages in the EVJDs for Mr Pratt and Mr Todd, to which we refer in paragraphs 699-704 and 790 above. There was, however, one difference in the response of the claimants. That related to the proposed new words of paragraph 6.330 of the EVJD for Mr Pustula. Those words were also in paragraph 6.494 of the EVJD for Mr Pratt and we have set them out in paragraph 702 above. For convenience we now repeat them. “A further task that the job holder’s Manager asked him to do while on Inside Pallets was to fill Trailers with Pallets using a Ride-On PPT. This would usually happen at least once every time the job holder was assigned to Inside Pallets. The job holder had no direct supervision nor did he use his AMC when completing this task.”

[853]The claimants said that Mr Pustula did not do that work. That was on the basis that Mr Bates accepted in cross-examination (in line 8 on page 87 of the transcript of day 27) that Mr Pustula did not do that work. We saw that that acceptance was for cogent reasons. We therefore concluded that the proposed new words of paragraph 6.330 of the EVJD for Mr Pustula were wrongly included in that paragraph, as they were inaccurate. Set up and standards; paragraphs 6.332-6.339 of the EVJD for Mr Pustula

[854]The only things about which the parties disagreed in relation to the work of Mr Pustula called by the respondent “set up and standards” were the statements of reasons for the things described as being done by Mr Pustula in paragraphs 6.338 and 6.339 of the EVJD for him. We agreed with the claimants here. The words stating those reasons added nothing material. That was because the tasks themselves in the words proposed by the claimants for those paragraphs said all that was required to be known by the IEs and us. The work of Mr Young Case Numbers: 3304495/2018 & others 596 Introduction and overview

[855]The work which Mr Young did (at Didcot DC, which was a fresh DC) consisted of855.1 using a forklift truck to do

(1) “pallet clearance and loading” and

(2) “other forklift truck duties”, and

855.2 assembly.

[856]The work of assembly was done (the parties agreed by reference to paragraph 3.16 of the EVJD for Mr Young) by Mr Young as (we inferred; the words which were agreed were “1 or 2 out of every 5 shifts”) a full shift once or twice a week. On other days, he (as he said as recorded on page 208 of the transcript of day 31) “might start off on assembly and then be taken off” to do “forklift truck pallets work”.

[857]In paragraphs 3.27 and 3.28 of the EVJD for Mr Young, it was said respectively that857.1 “During the Relevant Period, approximately 76% of the job holder’s work time was spent carrying out various FLT driver activities, including Pallet clearance, Pallet loading and other FLT duties.”

857.2 “During the Relevant Period, the job holder was deployed on Assembly for approximately 23% of his overall working time.”

[858]The claimants proposed instead the following words as recording the factual position accurately. “The job holder's two main activities over the Relevant Period were Assembly and FLT work. The proportion of his time spent on these varied materially over the Relevant Period as follows: Time period % Assembly / % FLT 18/2/12-31/12/12 21 / 78 1/1/13-31/12/13 37 / 61 1/1/14-31/12/14 24 / 73 1/1/15-31/12/15 17 / 82 1/1/16-31/12/16 10 / 90 1/1/17-31/12/17 23 / 76 1/1/18-31/8/18 24 / 75”.

[859]Those figures were based on the spreadsheet at D4/9.1. That was in the same format as the spreadsheet relating to Mr Pustula at D2/9.1 to which we refer in paragraphs 809, 813 and 816 above. As with the work of Mr Pustula, the charts at tab 3 of D4/9.1 were the most obviously helpful part of the spreadsheet for present purposes. Case Numbers: 3304495/2018 & others 597

[860]In fact, we found what Mr Young said in cross-examination was also helpful. As recorded on pages 209-210 of the transcript of day 31, Mr Young said that it “sound[ed] about right” that on average, during the whole of the relevant period,(1) in 75% of shifts, he did no assembly work,

(2) in 17% of his shifts, he did only assembly work, and

(3) only in 8% of his shifts did he do both assembly work and “pallets”, i.e. forklift truck work dealing with pallets.

[861]There was a slight complication of the situation in that some of the work which it was said was done by Mr Young as a forklift truck driver was done by him using an “Adapted Loading Truck”, which was not defined in the EVJD for him. However, it appeared from the content of paragraphs 6.15 and 6.18 of that EVJD that it was “a Loading Truck with rear facing forks”. That appeared to us to be what we understood to be a LLOP. We saw that in cross-examination, Mr Young himself called the truck which he used which was not a reach or counterbalance forklift truck as his “LLOP”. That was in lines 1-2 of page 41 of the transcript of day 32. Mr Bumpass also said that Mr Young “would use a LLOP to load a truck”. That was recorded in line 22 on page 42 of the transcript of day 31. There was a photograph of a “Loading Truck – Rear Facing Forks (Hinckley Fresh)” at D9/0.2/41. There was a photograph of an “Assembly Truck (Ambient)” at D9/0.2/4. They were either the same, or at least very similar. Both had rear-facing forks.

[862]Despite the relatively confined nature of the work done by Mr Young, the EVJD for him ran to 165 pages plus appendices. However, as with all of the other EVJDs before us, there was in the EVJD for Mr Young much repetition of the content of other EVJDs before us. By way of example, there was a section on “Accessing the Trailer” which included sections on “Opening Bay Doors”, “Operating the Dock Leveller” and “Opening Trailer Doors”. That was in paragraphs 6.99 - 6.105 of the EVJD. Many parts of the EVJD for Mr Young (which consisted of a series of statements about what he did) were agreed and, for the reasons stated in paragraphs 52.2 and 53-54 of our second reserved judgment (at page 21 above), we refer below only to the disputes which were maintained in relation to the EVJD the resolution of which in our view might affect the judgment by the IEs of the demands of the work. The tasks done by Mr Young using a forklift truck, including an adapted loading truck Introduction; the relevant training materials

[863]The work of a forklift truck driver was the subject of the training materials referred to in paragraphs 123-141 above.

[864]We record here that at D9/288/11-12 there was a statement of the pre-use checks required to be carried out on a reach forklift truck. That section was repeated, almost verbatim (it would have been verbatim if the bullet point symbols had not been stripped out, somehow) but without attribution, as the content of paragraph 4.19 of Case Numbers: 3304495/2018 & others 598 the EVJD for Mr Young, at pages G313.7/26-30. That was an illustration of the respondent doing something which the claimants also did (for example in paragraphs 366-380 of the EVJD for Mrs Worthington, at C6/1/69-74) which we found to be unhelpful. That was to put into a so-called job description the content of one or more training documents of the respondent, without attribution. That practice was in our view contrary to the interests of justice and should not be repeated. Here, the situation was exacerbated by the fact that the pre-use checks required to be carried out on a reach forklift truck were stated in some (but not all) respects in more helpful detail at D9/273/15-18, which would (or at least should) have been stated to the persons receiving the training evidenced in the passage set out in paragraph 4.19 of the EVJD for Mr Young, and that additional detail was not included in the EVJD for Mr Young. In addition, no reference was made in the submissions or oral evidence to any of the informative documents to which we refer in paragraph 133 above, which were(1) D9/273,

(2) D9/289, and

(3) D9/291. (D9/467 was just a simple checklist.) Paragraph 6.32 of the EVJD for Mr Young; pallet clearance

[865]While the content of the (short) paragraph 6.32 of the EVJD for Mr Young was agreed, we thought that it would have been better if it had been acknowledged that the task referred to in it of “Pallet clearance and loading inside ... the warehouse” was the job which was elsewhere called by the respondent “Inside Pallets”, and which was therefore done by several of the other comparators. Paragraph 6.46 of the EVJD for Mr Young; pre-use checks of his “adapted Loading Truck”, i.e. the LLOP which he used

[866]The parties disputed what were the checks referred to in paragraph 6.46 of the EVJD for Mr Young as “the required Pre-Operational Safety Checks on his adapted Loading Truck”. The claimants asserted that these would be set out on a hard copy checklist. The substance of the respondent’s final approach, as advanced in closing submissions, was to agree with that assertion, if only because that is what was said by Mr Young in cross-examination in the passage (pages 40-41 of the transcript of day 32) to part of which we refer in paragraph 861 above

[867]So, the checks will have been the same as for an assembler using a LLOP, but Mr Young did not record the checks in the same way as would an assembler (which would include him when he was doing the work of assembly, of course). That was a factual dispute which we could have ignored, as we could not see how its resolution could affect the demands and therefore the value of the work done by Mr Young. We refer to it here as it was the factual background to what we say in paragraphs 869- 870 below.

[868]In any event, if Mr Young (or any other comparator) was using an AMC when using a LLOP or any other kind of MHE except(1) a pump truck,

(2) a reach forklift truck, or

(3) a counterbalance forklift truck, then the pre-use checks were on the AMC and had to be completed before the comparator could start to use the MHE. That was clear Case Numbers: 3304495/2018 & others 599 from the documents to which we refer in paragraph 103 above, namely D9/463, D9/561 and D9/594. Indeed, there was more information in those documents that was relevant than was recorded in paragraphs 6.46-6.49A of the EVJD for Mr Young.

[869]In addition, as can be seen from what we say in paragraph 291 above, paragraph 6.47 of the EVJD for Mr Young was not a reliable statement of what was required of a person using a LLOP. That is for the following reasons. In paragraph 6.47 it was said that “[i]f the battery level charge indicator showed 2 or less bars of charge on the Loading Truck, the job holder [and here we use the original words, which were better than the revised ones] was required to replace the battery before starting his shift to minimise the risk of a flat battery subsequently disrupting his shift”.

[870]However, as shown by what was said on page 2 of the document to which we refer in paragraphs 286, 287, 288 and 291 above, namely D9/475, the user of a LLOP was required by the respondent to check before the start of the shift to see whether the battery charge indicator showed three bars or less, and not two, and that was done to ensure that the user’s LLOP did not run out of battery power (the word “should” in that document being quite clearly an instruction and not an exhortation): the risk of running out of battery power was not intended by the respondent merely to be minimised. Paragraphs 6.122-6.124 of the EVJD for Mr Young; did Mr Young have to load empty pallets onto a trailer using a manual pump truck?

[871]There was a photograph of a manual pump truck at D9/0.2/51. It looked like those which were used in stores (as shown at the top of page C7/0.1/26). It was said in paragraphs 6.122-6.124 of the EVJD for Mr Young that if he “experienced damp underfoot conditions in and around Bay door areas when loading empty Pallets when the inflatable air seals had not inflated tightly enough during periods of rain” then it would not be “safe to load Pallets with a Loading Truck” and that he would then use a manual pump truck to load the pallets.

[872]As with the situation which we discuss in paragraphs 361-389 above, we thought that if it was unsafe to load empty pallets with a powered truck then it would be unsafe to load them with a manual pump truck. That was because both were wheeled pieces of MHE, and because the fact that the use of a powered truck was unsafe would result from the fact that the floor was slippery. For the reasons we give in paragraphs 361- 389 above, if the floor was slippery then it would in our view be unsafe to load, using either form of MHE. While we do not say it in those paragraphs specifically, we now point out that in no place in the training materials or other documentary evidence before us (i.e. documentary evidence which did not consist of one or more factual assertions made or collated for the purposes of these claims) was there any statement or indication that the respondent required any of its employees to load, or unload, a trailer if its floor was wet. Rather, if the floor was wet then the respondent Case Numbers: 3304495/2018 & others 600 required the employee in question to deal with it by (it was in our judgment an inescapable conclusion, which we would characterise as an obvious one) drying it, or if it were not possible to do that or it was unreasonable to expect the employee to do that, by the relevant team (which was referred to by the respondent as a “hygiene” team) drying it.

[873]We saw, incidentally, that the original words of paragraph 6.123 of the EVJD (at D4/1/67) for Mr Young referred to him using “a PPT or Manual Pump Truck to transfer up to 26 stacks of empty Pallets (each stack weighing up to 234kg) and position them within the rear of the Trailer.” We were not sure what was meant by “a PPT” there. It was probably a “Pedestrian PPT” of the sort of which there was a photograph at D9/0.2/48. That was rather different from a manual pump truck of which there was a photograph at D9/0.2/51. That factor rather suggested that the evidence in paragraph 6.123 of the EVJD for Mr Young at D4/1/67 did not originate from Mr Young. That was because it was likely that if he had indeed loaded pallets into a wet trailer then he would have known what MHE he used to do so.

[874]The respondent’s submissions on this point were confused. Its final position stated in paragraph 6.123 of the EVJD for Mr Young at D4/1.1/67 was that he used “a Manual Pump Truck to transfer up to 26 stacks of empty Pallets (each stack weighing up to 234kg) and position them within the rear of the Trailer.” The claimants objected to that wording, proposing instead that it be concluded that Mr Young “used a Manual Pump Truck or, from [date] a PPT or to transfer up to 26 stacks of empty Pallets and position them within the rear of the Trailer”. The respondent’s submission in response was that “there was no date of change. The JH was using the PPT for assembly during all the Relevant Period, but occasionally also used a Manual Pump truck.”

[875]In the circumstances, we concluded that the respondent did not require Mr Young to do what was described in paragraph 6.123 of his EVJD, and that it was therefore not part of his work for the purposes of section 65(6) of the EqA 2010. Paragraph 6.136 of the EVJD for Mr Young; working in the yard

[876]We saw that what the claimants asserted in the words they proposed for paragraph 6.136 of the EVJD for Mr Young reflected what Mr Young said in oral evidence as recorded on pages 220-222 of the transcript of day 31 and on pages 87-88 of day 32. What the claimants proposed for paragraph 6.136 of the EVJD for Mr Young was this. “About twice a year, the job holder spent about 3 hours undertaking work in the Yard such as loading flatbed Trailers and using the Outside Pallet Storage area. If the job holder determined that the internal Pallet storage locations were full, he alerted the Manager to the fact that he was going to start using the Pallet storage areas outside the warehouse, in the Yard.” Case Numbers: 3304495/2018 & others 601

[877]By the time of closing submissions, the respondent’s proposed words for paragraph 6.136 of the EVJD for Mr Young described him spending “an average of 3 hours each week undertaking work in the Yard on tasks such as:• loading flatbed Trailers

• taking the LPG Gas canister deliveries and (around twice a year)

• using the Outside Pallet Storage area”.

[878]In paragraph 3.23 of the EVJD for Mr Young as it stood by the time of closing submissions it was said that he received deliveries of LPG gas canisters once a fortnight, although it was not said there how long that task took. The task of “Dealing with LPG Canister Deliveries” was dealt with in detail in paragraphs 6.411-6.421 of the EVJD for him, but there was also no statement in them of the amount of time that the task would typically take. The part of Mr Young’s first witness statement which was meant to give evidential effect to the contents of paragraphs 6.411-6.421 of the EVJD (paragraphs 160-166) did not say how much time those tasks took, although, as we record in paragraph 953 below, he did say in oral evidence that he received gas canister deliveries once a fortnight. In addition, in paragraph 85 of his first witness statement he said that he “would spend an average of three hours a week in the Yard on tasks such as loading flatbed Trailers, taking the LPG Gas canister deliveries and using the Outside Pallet Storage area.” Furthermore, the following sections of the EVJD for Mr Young (paragraphs 6.138-6.158) suggested that he spent a fair amount of time in the yard.

[879]In those circumstances, we accepted that the respondent’s proposed words for paragraph 6.136 of the EVJD for Mr Young were an accurate statement of the factual situation.

[880]We saw, however, that the tasks which were referred to in paragraphs 6.138-6.159 of that EVJD were stated only sketchily, so that it was possible that the fact that they collectively took up about 3 hours per week of Mr Young’s time would be of little assistance here. That is a matter which we leave it to the IEs to assess. Forklift truck work as described in paragraphs 6.164-6.187 of the EVJD for Mr Young

[881]Paragraphs 6.183-6.187 of the EVJD for Mr Young described what he did by way of the recovery and transportation of a fallen Pedestrian PPT battery. That description was in our view less informative than the content of D9/502, which was entitled “Know Your Stuff for Mechanical Handling Equipment – Uprighting a MHE Battery”. That document was helpful also for making it clear (by what was said on page 4) that if a forklift truck were to be used to “retrieve faulty Ride on and Pedestrian PPTs which had been abandoned at any location within the Aisles or elsewhere around the warehouse, as a result of its battery running flat or some other mechanical failure, which meant that they could not be moved” as asserted in paragraph 6.175 of the EVJD for Mr Young, then it would be a counterbalance truck. That was not stated in Case Numbers: 3304495/2018 & others 602 the section of the EVJD for Mr Young dealing with the moving of a faulty ride-on or pedestrian PPT, namely paragraphs 6.175-6.182 of the EVJD for Mr Young. Indeed, we saw no reference to that task in the training materials.

[882]That did not mean that we concluded that it was not part of Mr Young’s work to do the work described in paragraphs 6.175-6.182 of the EVJD for him. There was nothing to suggest that it was not part of his work, and common sense suggested that it would be part of the work of a specialist forklift truck driver. Indeed, we thought that it was plainly one of the most difficult aspects of the work of a forklift truck driver. As a result, we concluded that the respondent’s proposed words in paragraphs 6.175- 6.182 of the EVJD for Mr Young to which the claimants objected were in part apt. We say “in part” because we concluded that there was here, as elsewhere in the EVJDs of the comparators, some over-egging of the pudding, and we concluded that we should leave it to the IEs to assess the demands by looking at the description of the work in paragraphs 6.175-6.182 of the EVJD for Mr Young, taking with a metaphorical pinch of salt such words as “particular skill, judgment and care” as used in paragraph 6.178. The work of assembly as done by Mr Young; paragraphs 6.188-6.352 of the EVJD for Mr Young

[883]The work of assembly as done by Mr Young was of precisely the same sort as the work of assembly as done by the other fresh DC comparators. As a result, we say nothing more here about the work of Mr Young done as an assembler unless there was a material difference between the section of the EVJD for him concerning assembly from the equivalent sections of the EVJDs for the other fresh DC comparators. Paragraph 6.236 of the EVJD for Mr Young; moving between the chambers pulling a Pedestrian PPT

[884]There was one such difference in paragraph 6.236 of the EVJD for Mr Young (i.e. in the version at D4/1.1/85, which was given a date internally only of “2023” but was given the date of 14 April 2023 in the index to the bundle). There, this was said. “When travelling between the Chambers whilst deployed on Assembly (which he had to do an average of ten times during each shift), the job holder guided his Pedestrian PPT through a pedestrian walkway rather than through the Fast Action Roller Shutter Door used by ride on MHE.”

[885]In contrast, in paragraph 6.345 of the EVJD for Mr Pratt as it stood by the time of closing submissions, at D1/1.1/93 this was said (it was the final sentence of the paragraph and it was agreed by the time of closing submissions). “When travelling between the Chambers whilst deployed on Assembly, the job holder guided his Pedestrian PPT through the Fast Action Roller Shutter Door.” Case Numbers: 3304495/2018 & others 603

[886]However, paragraph 6.345 of the EVJD for Mr Pratt originally had this as its final sentence (at D1/1/94). “When travelling between the Chambers whilst deployed on Assembly (which he had to do multiple times during each shift), the job holder guided his Pedestrian PPT through a pedestrian walkway rather than through the Fast Action Roller Shutter Door used by ride on MHE.”

[887]So, in both the EVJD for Mr Pratt and the EVJD for Mr Young there were originally assertions that an assembler using a Pedestrian PPT, i.e. a pedestrian powered pallet truck, was able to use and did in fact use the pedestrian walkway rather than the roller shutter door. That proposition was then resiled from in relation to Mr Pratt, but not Mr Young. For the reasons given in paragraph 664 above, we agreed with that change of position.

[888]It did not help the credibility of the respondent’s assertions in the comparators’ EVJDs that the obviously false assertion in paragraph 6.345 of the EVJD for Mr Pratt and paragraph 6.236 of the EVJD for Mr Young had been made in the first place, and then agreed to by both Mr Pratt and Mr Young. In addition, Mr Bumpass, in paragraph 88 of his witness statement (which was dated 29 January 2023), said this. “Paragraph 6.236 of Les’ EVJD is correct as drafted. It is accurate to say that Les had to travel multiple times a day between the Chambers. I believe Les could travel between the Chambers an average of ten times per Assembly shift.”

[889]So, Mr Bumpass approved a paragraph of the EVJD for Mr Young which mirrored the original text of paragraph 6.345 of the EVJD for Mr Pratt, which the respondent had accepted was wrong. That undermined Mr Bumpass’s credibility. Paragraph 6.237 of the EVJD for Mr Young; moving between the chambers as a pedestrian

[890]Paragraph 6.237 of the EVJD for Mr Young was as follows. “The walkways between the temperature-controlled Chambers were separated by a row of large heavy plastic sheets suspended from height, which the job holder pushed back by hand to pass through. Those plastic sheets could fall back towards his face and, on one occasion in 2010, the job holder suffered a black eye and minor cuts to his face when a similar curtain hit him in the face whilst entering the main Pallet storage area by Bay 11.”

[891]Whether or not a plastic curtain fell on Mr Young’s face in 2010 was not obviously relevant. It was even less obviously relevant that the sheet had been “by Bay 11” when paragraph 6.237 of the EVJD for him related to the use of the passenger door between the chambers. But perhaps most importantly, there was a picture of the door Case Numbers: 3304495/2018 & others 604 between the chambers in the document to which we refer in paragraph 664 above, namely D1/3/12, and it was an ordinary door, with no plastic sheets in sight. There was (as far as we could see) no picture before us of a doorway between two fresh DC chambers with “large heavy plastic sheets suspended from height, which the job holder pushed back by hand to pass through”. It would have been odd if there had been such a picture given that a doorway with a conventional door in it was going to be a far better sealed pedestrian access point between fresh DC chambers than a doorway with “large heavy plastic sheets suspended from height, which the job holder pushed back by hand to pass through”. In addition, if there was no need for a pedestrian route to be through heavy curtains which might hit anyone using the route, then it would be odd for such curtains to be used.

[892]We saw that in paragraph 89 of his witness statement, Mr Bumpass said this. “Paragraph 6.237 of Les’ EVJD is correct. Plastic sheets between the Chambers could fall back towards Les’ face. In 2010 Les suffered a black eye and minor cuts to his face when a similar curtain hit him in the face whilst entering the main Pallet storage area by Bay 11. I am also aware that this has happened to other people too, albeit they were not given a black eye.”

[893]If the respondent knew of employees being hit by heavy plastic sheets when moving between chambers and did nothing about it then the respondent was probably breaching its duties under the Health and Safety at Work etc Act 1974. Curiously, the claimants proposed these words for paragraph 6.237 of the EVJD for Mr Young. “The walkways between the temperature-controlled Chambers were separated by a row of large heavy plastic sheets suspended from height, which the job holder had to push back by hand to pass through. There was a possibility of those plastic sheets making contact with the job holder. However, that never happened during the Relevant Period.”

[894]In those circumstances, if they had been opposed then we would have rejected the factual assertions made in paragraph 6.237 of the EVJD for Mr Young in their entirety. We were, however, in our view able to conclude, and did conclude, that in any event if there was no need for an employee to walk through a doorway with heavy plastic sheets instead of a conventional door, then it could not properly be found by us to be part of the work for the purposes of section 65(6) of the EqA 2010 of that employee to use that doorway. Only if the plastic sheets were replaced with a conventional door could it be part of the work of the employee for those purposes to use that doorway. Accordingly, we concluded that paragraph 6.237 of the EVJD for Mr Young did not describe anything to do with his work for the purposes of section 65(6) of the EqA 2010. Paragraph 6.238 of the EVJD for Mr Young; “manoeuvring the Pedestrian PPT forks carefully under the Pallet” Case Numbers: 3304495/2018 & others 605

[895]The claimants opposed the use of the word “carefully” in paragraph 6.238 of the EVJD for Mr Young on the basis that that was an “evaluative” term. We thought that it was descriptive rather than evaluative, and that in the context of the rest of that paragraph, it was (unless it was an obvious part of the work described in that paragraph) helpful. That is because we agreed that it would be necessary to be careful when inserting the forks of a Pedestrian PPT into the space below the “floor” (our word) of a pallet. Having said that, we thought that it was obvious that care would be required in doing that task. Paragraph 6.258 of the EVJD for Mr Young, concerning the manual breaking down of pallets

[896]We agreed with the claimants’ submissions on paragraph 6.258 of the EVJD for Mr Young relating to the detail of the paragraph. That detail was incorrect, given what was said in the preceding five paragraphs of the EVJD for Mr Young, with which that detail was markedly inconsistent. We therefore accepted the claimants’ proposed words for paragraph 6.258 of the EVJD for Mr Young describing the work of manually breaking down a pallet when “the whole volume of Stock on the Pallet was for a single store” such as “at Christmas when for example Pallets could contain 400 to 500 tins of Celebrations or Quality Street chocolates”. Paragraphs 6.260-6.264 of the EVJD for Mr Young; the need to pay attention when checking the content of a multi-product pallet

[897]Paragraph 6.261 of the EVJD for Mr Young was disputed because of its final sentence, which concerned in effect the need to pay attention when counting products on a pallet, but also stated the reasons for that need. In our view, the need was obvious, as were the reasons for it.

[898]While it could be said that even what we have just said was itself the obvious resolution of the dispute to which it related, in order to understand the background to the dispute, we had to read the whole of the passage of which it formed a part, i.e. paragraphs 6.260-6.264 of the EVJD for Mr Young. Having done that, we decided that it was necessary to say something about the content of those paragraphs, despite the fact that they were otherwise in substance, if not actually, agreed. That something was that we concluded that the only accurate way to describe the work of an assembler in the circumstances described in paragraphs 6.260-6.264 of the EVJD for Mr Young was either in conjunction with the content of the AMC guide for picking by line and any other relevant training materials, or simply by referring to the relevant parts of those documents.

[899]We saw that there was a helpful summary of the process which was described in paragraphs 6.260-6.264 of the EVJD for Mr Young in rows 23-25 on page 4 of D9/154, to which we first refer in paragraph 17.12 above. We saw too that on page 4 of D9/251, to which we refer first in paragraph 17.11 above, it was said that warehouse manager approval was required for abandoning a pallet if there was “a Case Numbers: 3304495/2018 & others 606 problem with the pallet for example, an unexpected product on the pallet or a problem with the integrity of the pallet itself.” As far as we could see, the relevant part of the AMC guide for picking by line was pages 3-12 to 3-22 and 3-36 of that guide.

[900]Those passages of the respondent’s own documents were in our view rather more informative than the description of the aspect of the work of an assembler which was the subject of paragraphs 6.260-6.264 of the EVJD for Mr Young. Those passages were also necessarily more authoritative than that description. This situation was therefore a very good illustration of the difficulties caused by a failure to describe the work of the comparators which required the use of AMCs at least primarily by reference to the manuals showing how those AMCs had to be used and any training materials which were helpful in that they showed in addition what was the context in which that work was done.

[901]We add that a failure to use those manuals and (where necessary) training materials as the primary way to show what process was required to be followed on the AMC meant that many words were used to described steps that were much better stated in part pictorially through illustrations of the contents of the AMC screens which would be shown as each step was taken in the process. Whether knowingly or not, that meant that there was a risk that aspects of the work of the comparators were stated less clearly than they were stated in the manuals and training materials. Moreover, stating the tasks in words rather than simply by reference to the contents of the manuals or training materials meant that there was a risk that the task would appear to be more complicated than it in fact was. In any event, there was no scope for deviation from the process stated in those manuals and training materials, since the process was computer-driven. Cage-stacking: paragraphs 6.275-6.286 of the EVJD for Mr Young

[902]The same observations applied to the failure by the respondent to describe (for example in paragraphs 6.275-6.286 of the EVJD for Mr Young) the work of stacking cages by reference at least primarily to the documents referred to in paragraphs 58- 66 above. “Paper Pick Assignments”: paragraphs 6.291-6.293 of the EVJD for Mr Young

[903]As we say in paragraph 818.3 above, we could not see why there was a need to take into account paper picking, since we saw no material difference between a paper picking assignment and a picking assignment done using an AMC. The work was in substance the same, as far as we could see. If the IEs disagree with us in this respect, then they must let us know, under rule 6(3) of the EV Rules. “Assembling Trays”: paragraphs 6.295-6.300A of the EVJD for Mr Young

[904]The tasks of(1) putting products which had been taken from pallets and put onto trays on dollies and

(2) adding trays to MUs, were the subject of paragraphs 6.295- Case Numbers: 3304495/2018 & others 607 6.300A of the EVJD for Mr Young. Those paragraphs referred to “page 32 of the AMC Guide” by saying at the end of two paragraphs: “See page 32 of the AMC Guide”. That had to be taken to be a reference to D4/2/32, which did not appear to us to be relevant to the subject-matter of putting trays on dollies or MUs.

[905]We concluded that the description of the tasks in paragraphs 6.295-6.300 of the EVJD for Mr Young was accurate so far as it went, and that to the extent that the AMC guide to picking by line added anything, then it was material. However, given what we say in the preceding paragraph above it can be seen that we did not have any steer about the relevant part of the guide. As usual, the claimants simply said that the guide was irrelevant as it did not describe what the job-holder did. For the reasons given in paragraphs 16 and 77 of our second reserved judgment (at pages 7-8 and 27-28 respectively above), we disagreed with that proposition. However, we searched the AMC guide to picking by line and we could find nothing in it which was material to this part of the work of a fresh DC assembler.

[906]Paragraph 6.300A of the EVJD for Mr Young was (as with all of the paragraphs of all of the EVJDs which claimed that it was part of the work of the job-holder in question to “ensure that [the task in question was done in such a way as to] avoid the hazards associated with it and the risks arising from those hazards”) mistaken in so far as it purported to be a statement of part of the work of the job-holder. That was because, for the reasons stated in paragraph 68 of our second reserved judgment (at page 25 above), paragraph 6.300A added nothing material in itself. The only material issue was what was the task and how it needed to be done. In determining how it needed to be done, we and the IEs had to take into account the obvious risks as well as those which were visible only to the trained eye, but those risks were relevant only in so far as they informed the manner in which the task had to be carried out. Here, the document at D8/9, which was the SSOW headed “Area: Warehouse”; “Activity: Stacking Trays Above Shoulder Height Onto Dollies” to which we refer in paragraphs 17.23 and 67 above, showed precisely what had to be done by an assembler who was taking trays from pallets and putting them onto dollies. “Assembling from Multi-Product Pallets”: paragraph 6.301 of the EVJD for Mr Young

[907]The work of assembling from multi-product pallets was described in paragraph 6.301 of the EVJD for Mr Young as being with exceptions “the same as for single-Product Pallets”. There was in the paragraph a cross-reference to “page 38 of the AMC Guide”, which was D4/2/38 (which in turn was page 3-36 of the guide to using an AMC when picking by line). We record here that we found the description of the work which was referred to on page D9/251/10 as “assembling pallets that have multiple products on them”, which set out on that page and the next one, i.e. D9/251/11, to be more informative than the content of paragraph 6.301 of the EVJD for Mr Young. No party referred us to D9/251 (or its duplicate, which was at D9/252) in closing submissions, so (as we say in paragraph 55 of our second reserved judgment, at pages 21-22 above) if a party believes that we are wrong in thinking that D9/251/10- 11 was an apt description of the subject-matter of paragraph 6.301 of that EVJD then Case Numbers: 3304495/2018 & others 608 they can ask for a reconsideration of this aspect of the matter, stating in precise terms why they are doing so. Paragraph 6.307 of the EVJD for Mr Young: using the “Closing Drop-Off Pallet” option on the AMC

[908]The cross-reference in paragraph 6.307 of the EVJD for Mr Young to “page 50 of the AMC Guide, i.e. we inferred, page D4/2/50, was accurate, and it did in fact help to show what was involved in the task described in that paragraph. Precisely how much it added to the assessment of the demands of the work of an assembler was not entirely clear to us, however. Those demands included following the instructions on the AMC, and that aspect of the work required the assembler to pay careful attention to the small screen on the AMC and to do what it instructed the assembler to do. If that was in itself sufficient to describe that aspect of the work of any of the comparators who used an AMC then, we concluded (at this point, that is to say having nearly finished going through the detail of almost all of the factual disputes maintained by the parties), it did not need to be said by us that a step was the result of an instruction on an AMC. Rather, what needed to be stated was the times when work was not done as instructed by an AMC, such as when using a printed list of instructions instead, or when simply doing a task which was not dealt with by AMCs. We say that not least because of the existence of the AMC guides (i.e. the complete guides, as sent to us on 2 May 2024) and the many photographs of what a comparator would see on an AMC’s screens in the training materials. By way of illustration, we refer here to D9/251, which, as we say in paragraph 17.11 above, was dated “01/12” and entitled “Know Your Stuff For Fresh Assembly – Paperless Assembly in Stockless Depots”. Restacking cages: paragraphs 6.308-6.316 of the EVJD for Mr Young

[909]As we say above (for example in paragraph 271), the work of restacking of cages was amply described and best seen in the documents to which we refer in paragraphs 58-66 above.

[910]Thus, paragraph 6.310 of the EVJD for Mr Young was relevant only if the fact that Mr Young (unusually) “referred the issue [of the need to restack a cage] to a Manager” was material. We doubted that it was, since it was not the norm, and the documents to which we refer in paragraphs 58-66 above showed what was required of an assembler where restacking was required. They also showed that (as can be seen from what we say in paragraph 65 above): “Allowances are built into picking time to spend for time re-arranging the cage stack where required [which] can often be needed as the types of products we pick are so diverse in size and shape.”

[911]Thus, references to the impact on the PI rate of the assembler in paragraphs 6.310 and 6.312 of the EVJD for Mr Young were inapt here on any view, i.e. they would Case Numbers: 3304495/2018 & others 609 have been inapt if the impact of PI rates on assemblers had (contrary to our conclusion on this issue stated in paragraphs 684-685 above) been relevant. “Unit Integrity / Damage”: paragraphs 6.317-6.322 of the EVJD for Mr Young

[912]We were bemused by the fact that the respondent asserted in paragraphs 6.317- 6.322 of the EVJD for Mr Young that an assembler had to be “alert for any visible damage to a Product or its packaging and/or potential contamination to the Products themselves” but (see for example paragraph 83.10 of Appendix 1 above at page 55 above, relating to the work of Mrs Worthington) opposed the proposition that the claimants had to have the respondent’s “WIBI” or “Would I Buy It?” policy in mind and apply it at all times.

[913]We concluded at this point that it was obvious that it was part of the work of an assembler as well as that of a customer assistant to be alert to the possibility of damage to the respondent’s products, especially (but not only) food products.

[914]We could see nothing in the rest of the disputed content of paragraphs 6.317-6.322 of the EVJD for Mr Young which illuminated in any way the work described in the preceding paragraph above. That was because the relevant parts of that passage consisted of a description of some of the consequences of a failure by an assembler to do what is stated in the preceding paragraph above, and those consequences were neither part of the work of the assembler nor otherwise material at this stage. “Closing Cages and Opening new UODs”: paragraphs 6.323-6.338A of the EVJD for Mr Young

[915]Paragraph 6.324 of the EVJD for Mr Young (with the original words, which were better than the slightly amended version since they referred to what was required rather than what Mr Young himself did) stated something which was obvious and was also just a statement of one result of a failure to take reasonable care. It was in these terms. “The job holder had to ensure that Cage doors were securely closed and strapped in order to avoid the risk of Stock falling out and being damaged during subsequent transit and/or injury to colleagues both within the warehouse and at stores.”

[916]In fact, the work in question consisted of closing the cage doors and engaging and tightening the strap around a cage, which was dealt with in the three lines of text of row 43 on page 6 of D9/154, which (as we say in paragraph 17.12 above) was dated “November 2015”, and stated the respondent’s policy and procedure for “Paperless Assembly in [a] Stockless Distribution Centre”. Those words (with original emphasis by the use of bold font) were as follows. “Close the door if a four-sided cage and securely attach the cage straps Case Numbers: 3304495/2018 & others 610 Note: Make sure to hold the side of the cage when doing the straps up on a two-sided cage.”

[917]In addition, the second and third pages of the 3-page document to which we refer in paragraph 17.22 above stated (in words and photographs) definitively and rather more clearly than paragraph 6.325 of the EVJD for Mr Young what was required by the respondent of an assembler when strapping a roll cage. The document was at D9/539, and was entitled “Safe Strapping of Roll Cages”.

[918]Further, given the content of D9/255/20-32, entitled “Know Your Stuff for Fresh Assembly – Opening and Closing Units of Delivery”, to which we refer in paragraphs 15 and 16 above and which must be taken into account by the IEs in determining what were the demands of the tasks of an assembler described in that document, we could see only one thing which arose from what was said in paragraphs 6.323- 6.338A of the EVJD for Mr Young which might need to be taken into account by the IEs and us. It arose from paragraph 6.336, which referred to the potential difficulties arising from moving dollies and MUs by 90 degrees. There was a document referred to in a number of places in the training materials relating to the comparators as “Know Your Stuff for Everyone – Bronze 3 – Manual Handling”, and that was likely to have been of assistance in describing how an assembler should move dollies and MUs. Unfortunately, that document was not in the bundle before us (or at least, if it was, we were unable to locate it). If we had been able to see what was in that document then we might have been able to conclude that it was a more informative and definitive description of what was involved in the work of moving dollies and MUs by 90 degrees. It was possible that that document was omitted because it stated the obvious, but we doubted that. However, the possibility of the wheels of a dolly or an MU initially being in such a position that a certain amount of force was required to get the dolly or the MU to start moving, was probably obvious to the IEs at least.

[919]For the avoidance of doubt, we record here that while it was said in paragraph 6.338 of the EVJD for Mr Young that “The process of closing and opening Cages or Dollies described above was required 30-35 times per Assembly shift, and was necessary to maximise use of space in the store Aisles location and avoid any obstructions in the Assembly and Marshalling Lanes.”, the underlined words in that sentence appeared to us to add nothing material for present purposes. If, however, the IEs find them helpful, then they can take them into account. “New Assignment”: paragraph 6.346 of the EVJD for Mr Young

[920]It was remarkable that the respondent thought it necessary to state (as it did in paragraph 6.346 of the EVJD for Mr Young, under the heading “New Assignment”) that “The job holder then pressed enter on his AMC to generate his next Assembly Assignment. See page 19 of the AMC Guide.” The effort required to do that was probably minimal, and it was obviously part of the work of an assembler, but in fact it was stated much more clearly and informatively on pages 2, 3 and 14 of D9/251. (We refer to D9/251 so far as relevant in paragraphs 17.11, 27, 627 and 908 above.) Case Numbers: 3304495/2018 & others 611 Paragraphs 6.350-6.352 of the EVJD for Mr Young

[921]Paragraphs 6.350 and 6.351 of the EVJD for Mr Young had to be read together to make sense as a statement of a material fact, assuming, that is, that what was stated there needed to be stated. Paragraph 6.351 was not agreed because at the end of it there was a reference to “page 68 of the AMC Guide”. We could therefore, given what we say in paragraph 77 of our second reserved judgment (at pages 27-28 above), simply have ignored the dispute. We mention it here, however, in order to guide the parties (subject to any observations that they or the IEs might make) on the kind of detail which might in the future be included in any document complying with the requirements of rule 4(1)(d) of the EV Rules.

[922]At D4/2/68 there was a scanned copy of page 4-1 of the guide to the use of an AMC in picking by line. The following passage on that page described what happened at the end of an assembler’s shift, and it showed that paragraphs 6.350 and 6.351 of the EVJD for Mr Young were a paraphrase of, or at least drawn from, the passage. It consisted of the only words in the second half of the page, with a picture showing what the screen would say in between the two parts. “If the assembler has not completed all of the picks in his current assignment, the assembler will still be notified of his end of shift, but will be told to either take his pallet to the goods-in area or to leave the pallet in the assembly layout at the store lane where they completed their last pick. The decisions on where to leave the pallet will be decided by the host and the decision will be relayed to the AMT. [End of Shift; picture showing the message on the screen.] The assembler will be requested to scan the location where he is leaving the pallet.”

[923]It seemed to us that all that the IEs and we might have needed to know was that an assembler was not required to finish an assignment by the end of his shift and had to deposit the pallet on which he was working at that time in such place as he was directed to by his AMC. However, even that was probably unnecessary detail. “Changing Batteries on MHE” etc; “Changing LPG Canisters in the Gas-Powered Forklift Truck”; and “Dealing with LPG Canister Deliveries”: paragraphs 6.355-6.421 of the EVJD for Mr Young Changing the battery on a Pedestrian Powered Pallet Truck; paragraphs 6.355-6.365 of the EVJD for Mr Young

[924]We refer in paragraph 97 above to the document showing definitively what was involved in changing the battery on a Pedestrian Powered Pallet Truck: D1/3/13. We Case Numbers: 3304495/2018 & others 612 ourselves saw an operative changing such a battery when we visited the Hinckley DC on 13 April 2023.

[925]The content of paragraph 6.355 of the EVJD for Mr Young (with the original words, which were better than the slightly amended version since they referred to what was required rather than what Mr Young himself did) was as follows. “The job holder had to continuously monitor the battery levels on his Pedestrian PPT throughout Assembly shifts, undertaking battery changes whenever the battery level indicator dropped to one bar. This was required between once and twice per Assembly shift subject to the condition of the batteries.”

[926]The claimants proposed this instead. “The job holder monitored the battery levels on his Pedestrian PPT throughout Assembly shifts, undertaking battery changes whenever the battery level indicator dropped to one bar. This was usually required only once per Assembly shift subject to the condition of the batteries.”

[927]However, they submitted this in support of that position. “The job holder confirmed in evidence that a battery would usually last to the end of his shift.”

[928]That was inconsistent with their proposed words for paragraph 6.355 of the EVJD for Mr Young, but it was consistent with(1) what, for the reason stated in the first sentence of paragraph 812 above, we would have expected, and

(2) Mr Young’s oral evidence since he said (as recorded in lines 5-6 on page 226 of the transcript of day 31) that “usually they’d [i.e. the battery on a Pedestrian Powered Pallet Truck would] last a full day”.

[929]So, if there was a need to change the battery on a Pedestrian PPT, then it had to be done in accordance with the process stated and described definitively in the documents referred to in paragraph 97 above, namely D1/3/13 and D9/470/4-6 (which was the second half of the document entitled “Know Your Stuff for Mechanical Handling Equipment – Battery Changing (Manual Roll On/Roll Off)”). In the light of those documents we saw no need to determine the dispute about the content of paragraph 6.359 of the EVJD for Mr Young, which was in fact only about the use by the respondent in that paragraph of the words “carefully” and “difficult”, which were opposed on the basis that they were “evaluative”. We came to the same conclusion (albeit that the opposed words were different) in relation to the content of paragraph 6.364 of the EVJD for Mr Young, i.e. the content of the documents at D1/3/13 and D9/470 was a sufficient statement of the task of changing the battery of a Pedestrian Powered Pallet Truck. Case Numbers: 3304495/2018 & others 613

[930]We record here that the following words on D9/470/1 were informative in showing that the respondent did not rely on the comparators to guess when the battery on their MHE might run out. “Each piece of MHE used in our distribution centres has a battery gauge which indicates the remaining power for that battery. Generally when this gauge reaches 1/8th of its total, the battery will need changing.”

[931]Also, we saw that at the top of the next page, D9/470/2, this was said. “You will find that your truck needs its battery changing when it is no longer able to raise or lower loads. Although it cannot raise or lower loads, the battery will have sufficient charge for the truck to be taken to the battery changing area in your distribution centre. Take your truck to a battery changing station or pod as soon as you suspect the battery is running down.” Changing the battery on a “Loading Truck”, i.e. a LLOP; paragraphs 6.366-6.381 of the EVJD for Mr Young

[932]Much of the content of paragraphs 6.366-6.381 of the EVJD for Mr Young was agreed. The only material dispute was about the first of those paragraphs, and we agreed with the claimants that their proposed words were apt, whereas those of the respondent were not. That was because we agreed with the claimants that the evidence given in cross-examination by Mr Young as recorded on pages 224-225 of the transcript of day 31 showed that he “changed the battery on his Loading Truck at most once during a shift” when he was deployed on pallet clearance and loading “but often he would not need to change it at all during a shift.”

[933]There was only one other dispute on the content of paragraphs 6.366-6.381 of the EVJD for Mr Young which we saw a need to mention here. It was a dispute in the same vein as those to which we refer in paragraph 929 above. In this case it was about the respondent’s proposed use of the words “particular care” and “to avoid risk of”, in paragraph 6.380. In paragraph 95 above we refer to the document which showed definitively how the task of changing a battery using a battery car was to be done. That was the SSOW at D4/3/10, with the title “Area: Battery Change”; “Activity: Battery Change (Battery Car)”. We saw that in column 5 the process which was the subject of paragraph 6.380 was described, and that it was so far as relevant to “[place] the charged battery ... into the truck using the magnetic arm”.

[934]When considering the parties’ positions in regard to this aspect of the work of Mr Young, we observed that paragraphs 6.369-6.381 of the EVJD for him described in great detail the process which was described succinctly in D4/3/10, and that paragraph 6.369 of the EVJD, read with the photograph to which it referred as “Photo G4” (which we were eventually able to locate at D9/0.2/5) and the document at D9/500 to which we refer further in detail in paragraphs 941-942 below, would probably have been sufficient for the purposes of the IEs. However, if it was not then Case Numbers: 3304495/2018 & others 614 it was open to the IEs to take into account the agreed detailed description in the words used in paragraphs 6-369-6.381 to the extent that it went beyond what was in those documents, especially at D9/500/6-8.

[935]What was clear to us was that935.1 the use of a battery car to change a battery involved the use of a “magnetic arm”,

935.2 the person changing the battery was required to operate some mechanical equipment, and

935.3 being able to do that obviously required training and then the application of some skill and, we thought, necessarily some care.

[936]We now return to the dispute maintained in relation to the words of paragraph 6.380 of the EVJD for Mr Young. Those which were proposed by the claimants retained some key information, putting it in a single sentence, which was at the end of the claimants’ proposed words and was this. “The tolerance on either side of the Battery Housing unit was around 10mm.”

[937]That factor showed in our judgment the need for care, and the degree of the care required, when aligning a battery with the housing unit into which it was to be placed. However, we thought that the picture and explanation at the bottom of page 6 of D9/500 was a rather better illustration of the degree of care required. Changing forklift truck batteries; paragraphs 6.382-6.393 of the EVJD for Mr Young

[938]There was at least one material dispute in paragraphs 6.382-6.393 of the EVJD for Mr Young, which concerned changing forklift truck batteries, and that was in the first of those paragraphs, which concerned the frequency with which the need to carry out the task arose. However, the words used by the parties were not very far apart, and possibly the difference between the words was not material. For the avoidance of doubt, however, we agreed with the claimants that the words “Usually once, possibly twice every full FLT shift” described accurately the oral evidence of Mr Young (as recorded on pages 222-224 of the transcript of day 31) about the frequency with which a forklift truck battery had to be changed (as opposed to “At least once, possibly twice on every shift”).

[939]We saw that the SSOW at D4/3/10 referred to forklift truck batteries, indicating therefore that the battery car was used to change the batteries of forklift trucks as well as those of a LLOP. Case Numbers: 3304495/2018 & others 615

[940]Given that counterbalance forklift trucks were powered by gas, the forklift trucks to which paragraphs 6.382-6.393 of the EVJD for Mr Young referred must have been reach forklift trucks.

[941]In fact, we saw that the document at D9/500, entitled “Know Your Stuff for Mechanical Handling Equipment – Automated Battery Change Cart Operation” showed (on page 2) that battery change carts differed from DC to DC. That was because of this passage at the top of page 2 of that document. “There are different types of battery change cart within the Distribution centres, these are single level and multi tier systems. Some sites have more than one battery change cart and there are also two different models of cart, the power logic cart and the BHS cart. Both manufacturers produce single Tier and double Tier systems. The control panel is different on both carts and the functionality of the carts are also different. The big difference in operation of the two carts is that the battery rollers are powered on the BHS cart and they are not powered on the Powerlogic cart.”

[942]There were helpful photographs throughout that document. Incidentally, those on page 4 confirmed that the kind of forklift truck which had batteries was a reach truck. They also confirmed that the process of changing a battery on a reach truck was the same as for a LLOP or a “Rider Powered Pallet Truck”.

[943]Why was there, therefore, we asked ourselves, a separate section in the EVJD for Mr Young on the changing of the battery of a reach truck? We found that answer in the photographs at D9/0.1/16, D9/0.1/17 and D9/0.1/39, which, when compared with the pictures of LLOP batteries (of which there were, we thought, photographs at D9/0.2/5-14, for example) showed that the battery of a forklift truck was rather bigger than that of a LLOP and therefore required different handling. Having said that, the process of changing the battery was, for the reasons stated in the preceding paragraph and paragraph 939 above, the same as using a battery car to change the battery of a LLOP.

[944]The parties did not dispute the respondent’s proposed words for the description in paragraphs 6.384-6.390 of the process of changing a battery on a reach forklift truck except that the claimants opposed the use of the word “carefully” in paragraphs 6.386 and 6.387. We thought that the exercise of some skill and care would obviously be required to do the things described in those paragraphs. What Mr Young had to do in relation to battery acid spillage; paragraphs 6.394-6.396 of the EVJD for him

[945]The parties disputed the content of paragraph 6.394 of the EVJD for Mr Young which concerned being aware of the process to follow if there was battery acid spillage because, as it was said by the claimants, he “never did this”, i.e. follow that process, because he never needed to do so because he himself did not, in the course of his Case Numbers: 3304495/2018 & others 616 work, come across a battery acid spillage which had not already been reported by someone else in relation to a toppled battery so that he had gone with a forklift truck to pick up the battery.

[946]That was in our view mistaken. Here, the respondent was right in principle in saying, as it did in paragraph 6.394, this: “The job holder was also required to be aware of and, where necessary, follow a specific procedure in the event of any acid spillage during a battery change, whether that was caused by damage to or leakage from the metal frame of the battery or where a battery tilted or fell during the change process.”

[947]Neither party referred us to D9/208, to which we refer in paragraph 98 above. Nor did they refer us to D9/504, to which we refer in paragraph 101 above. The respondent did, however, refer us in closing submissions to the SSOW at D9/641 (with the title “Area: Warehouse/Yard”; “Activity: Battery Spillage”), to which we refer in paragraph 100 above. That SSOW stated what steps needed to be taken, and how they were to be taken, in the event of a fallen battery.

[948]We concluded that all that needed to be known by Mr Young and any other comparator about the risks arising from the possible spillage of battery acid were stated so well at D9/208/3, D9/641 and D9/504 that there was no need to do more here than refer to those pages in that regard.

[949]If and to the extent that it was necessary to take into account the frequency with which Mr Young himself actually informed a manager of spilled battery acid, which was the subject of paragraph 6.395 of the EVJD for Mr Young, where it was said that he did that “roughly 2 to 3 times a year during the Relevant Period”, we saw that Mr Young’s evidence given in cross-examination, as recorded on pages 73-75 of the transcript of day 32, did not support the proposition that he himself came across battery acid spillage except when he was called to use a forklift truck to pick up a battery which had fallen over in the process of a battery change.

[950]We therefore concluded that the claimants’ submission that the evidence before us showed that Mr Young never did what was described in paragraph 6.395 of the EVJD for him, was correct. On that (apparently sound) basis, this was another instance of the approval by one of the respondent’s witnesses of a part of a document in which an incorrect (that is to say, unfounded) factual assertion was made. Paragraphs 6.398-6.410 of the EVJD for Mr Young: “Changing LPG Canisters in the Gas- Powered Forklift Truck”

[951]There was in paragraph 6.398 of the EVJD for Mr Young another apparently unfounded factual assertion, which was also revealed by what he said in crossexamination. That was that he changed the gas canister on the counterbalance forklift truck in the yard about once a week. In cross-examination, as recorded on Case Numbers: 3304495/2018 & others 617 pages 227-228 of the transcript of day 31, Mr Young said that he changed the canister no more than twice a year in the yard. We, through EJ Hyams, put that issue to Mr Young after that cross-examination to check what we understood to be the situation from that cross-examination, and at pages 1-5 of the transcript of day 32 there was a record of what was said. Mr Young then unambiguously confirmed that he changed the canister on the counterbalance forklift truck no more than twice a year. We wondered whether even that evidence was correct, given what we say in paragraphs 876-880 above.

[952]Most of the content of the material parts of paragraphs 6.399-6.410 of the EVJD for Mr Young was agreed. The disputed content was in paragraphs 6.400 and 6.408, and the disputes related to the risks arising from leakage of gas. Those risks were to our minds obvious, but in fact they were stated in columns 2 and 6 of the SSOW at D4/3/9, from which, we thought, paragraphs 6.399-6.410 must have been drawn. (We say “must have been drawn” because neither party referred in closing submissions to that document in connection with paragraphs 6.399-6.410, although, we saw, the respondent did refer to that document in its submissions in support of the content of paragraph 10.33 of the EVJD for Mr Young, which was in substance a repeat of the content of the proposed amended paragraph 6.399 of that EVJD.) That document, i.e. D4/3/9, said, and showed by way of very helpful pictures, all that was required for the purpose of understanding the demands of the work of changing a gas canister on a forklift truck. This was therefore a good example of a situation in which a party had put into words the content of a document which contained rather more information than the words used by the party, and then failed to acknowledge(1) that the words were drawn from that document and

(2) that the document itself was rather more informative than the words. “Dealing with LPG Canister Deliveries”: paragraphs 6.411-6.421 of the EVJD for Mr Young

[953]It was clear from Mr Young’s evidence, as recorded at pages 187-191 of the transcript of day 31, which we accepted, that he received deliveries of gas canisters for the counterbalance forklift truck(s) of the DC at which he worked (Didcot) once a fortnight. The claimants objected to the content of paragraph 6.411 of the EVJD for Mr Young on the basis that saying that he “undertook the task on behalf of the DC” of (and these next words were agreed) “receiving and storing deliveries of full LPG Gas canisters and the collection of those that were empty” was “Analysis / evaluation / comment. Exaggeration.”

[954]We suspected that neither we nor the IEs were likely in any way to be influenced by the inclusion of the opposed words, which in our judgment were descriptive rather than evaluative, and factually accurate if only Mr Young tended to do the work of receiving deliveries of full gas canisters and returning the empty ones. (We saw that he said in cross-examination, at line 6 of page 191, that it was “usually” 12 of each: “12 full ones in, 12 empty ones out”, and that that was not opposed.) In any event, whether or not he was the only person who tended to do that work, he did it, and that was the only relevant factor at this stage. Case Numbers: 3304495/2018 & others 618

[955]We saw that the final sentence of paragraph 6.412 of the EVJD for Mr Young was opposed on the basis that it was “Analysis / evaluation / comment. Exaggeration.” In that sentence it was said that Mr Young “ensured that he remained alert” to “announcements” on the “DC tannoy system when the LPG delivery arrived”. Even if he was not the only person who dealt with the delivery and return of counterbalance forklift truck gas canisters, given that he was one of the persons who did that, we concluded that(1) it was part of his job to listen out for such announcements, and

(2) the substance of the final sentence of paragraph 6.412 was apt.

[956]The disputes maintained about paragraphs 6.418-6.421 of the EVJD for Mr Young were all about words which described or were about peripheral matters. Respectively, they were about the following words in quotation marks:956.1 the fact that “each filled canister cost approximately £25”,

956.2 signing of the copy of the delivery/receipt provided by the driver and taking it to the Goods In Office was done “to enable the relevant records to be updated”;

956.3 recording the number of filled canisters which Mr Young had counted in the cage in the yard was done “so that Tesco’s finance team could order sufficient canisters to ensure ample reserves were available at all times”, and

956.4 “The job holder exercised focus and concentration when handling both empty and filled LPG canisters and in particular, whilst transferring them to and from the security Cage to the tail lift of the delivery (and collection) vehicle and when ensuring that filled canisters were stored neatly in order to remain separated from future emptied canisters”.

[957]The latter words, i.e. in paragraph 956.4 above, were in our view indubitably unnecessary in that they added nothing to the description of the work in paragraphs 6.414-6.416 of the EVJD for Mr Young and the description by him of that work as recorded on pages 187-191 of the transcript of day 31 (to which we refer in paragraph 953 above).

[958]As for the three other sets of words set out in paragraph 956 above, our conclusions were, respectively:958.1 the cost of a full canister did not seem to us to be material here, but if the IEs disagree then of course they can take it into account in assessing the value of the work within the meaning of section 65(6) of the EqA 2010; and

958.2 the words opposed by the claimants in paragraphs 6.419 and 6.420 of the EVJD for Mr Young, which we have set out in paragraphs 956.2 and 956.3 above, Case Numbers: 3304495/2018 & others 619958.2.1 added nothing material in that they were saying no more than what was either obvious or implicit in the words preceding them, but

958.2.2 were inoffensive and potentially helpful, with the result that there was no good reason for the IEs and us ignoring them. Section 7 of the EVJD for Mr Young: “Metrics”

[959]We have stated above (principally in paragraphs 329 and 733) our view that the “metrics” on which the respondent placed much reliance were for the most part at least of dubious relevance. It was in our judgment disproportionate to go through the disputed content of part 7 of the EVJD for Mr Young and determine those disputes, not least because we did not know at this stage to what extent the IEs would think that the disputed factual assertions were material to their task of assessing the value of the work of Mr Young. Thus, in the same way that we say it above in relation to other parts of the EVJDs before us and the IEs, and in paragraph 55 of our second reserved judgment (at pages 21-22 above), we state here that if the IEs believe any dispute in relation to part 7 of the EVJD for Mr Young to be about something material, then they can ask us under rule 6(3) of the EV Rules to determine that dispute. Part 8 of the EVJD for Mr Young, concerning “Performance and Accountability”, part 9, concerning “Physical Conditions Inside the Warehouse” and part 10, concerning “Risks and Hazards”

[960]For the avoidance of doubt, we say no more here about the final three sections of the EVJD for Mr Young on the similar basis that what we say above or in our judgment of 12 July 2023 meant that it was disproportionate to address any of the many disputes in sections 8-10 of the EVJD for Mr Young unless the IEs see in them something which the IEs regard as being relevant to their task in these proceedings. Case Numbers: 3304495/2018 & others 1 EMPLOYMENT TRIBUNALS Claimants Respondent Ms K Element & others v Tesco Stores Limited Heard at: Watford, via Cloud Video Platform Without the parties present on: 6-9, 14-17, 20, 23, 30 and 31 January 2025; 4- 6, and 10-12 February 2025; 24-28 and 31 March 2025; 1-4, 15-17, 22-25, and 28-30 April 2025; 1-2, 6-9, 12-16 and 19-23 May 2025. Before: Employment Judge Hyams Members: Mr R Clifton Ms M Harris UNANIMOUS JUDGMENT ON RECONSIDERATION Introduction: this judgment and its 14 appendices 1 This document is the third judgment which we have issued after and in relation to the evidence before us and the submissions made to us at the stage two hearing which we conducted in March to May of 2023. In this judgment and in the 14 appendices to it, we use the abbreviations which we used in those two preceding judgments. There is much internal cross-reference in this judgment and its 14 appendices. In this judgment, if we refer to a paragraph as being “above” or “below” without more, then in the case of this judgment it is a reference to a paragraph in this judgment, and in the case of an appendix it is a reference to a paragraph in that appendix. In both cases, for the sake of simplicity, we have not given a page number for the crossreference; that is because where the paragraph is only several paragraphs above, it would have interfered with the flow of the narrative unduly to state on which page or pages it appears and because in the case of any difficulty, reference can be made to the short index which follows immediately below this paragraph. Any other reference to a paragraph “above” or “below” is to a paragraph in another part of this document, which we refer to below in an overall way (that is to say including its 14 appendices) as “our judgment on reconsideration”, and has a page number reference. So, for example, a reference in appendix 2 below to paragraph 23 of appendix 1 below is in the form of a reference to “paragraph 23 of appendix 1 on page [ ] above”. Case Numbers: 3304495/2018 & others 2 Index This judgment Paragraph number(s) Topic Page(s) 2-3 The relevant procedural background 4 4-37 What happened next, up to and including 14 January 2025 4-20 38-52 The parties’ use of the EVJDs and related matters 20-25 53-56 The approach which we have taken in the 14 appendices 25-27 57 Introduction to our conclusions on the applications for reconsideration 27 58-263 Our conclusions on the respondent’s application for reconsideration 27-72 264-327 Our conclusions on the Leigh Day claimants’ application for reconsideration 72-86 328-333 Our conclusions on the Harcus claimants’ application for reconsideration 86-87 334 Our direction to the IEs, our reasons for giving it now, and a direction in relation to any application for reconsideration which might be made in relation to this, our judgment on reconsideration 87-88 The appendices to this judgment Sample claimants’ work Appendix 1 The work of Mrs Worthington (principally as a dairy replenisher in a large store but also providing checkout cover) and the conditions in which she did it 89-100 Appendix 2 The work of Ms Williams (as a customer assistant in an Express store, working mainly on the checkouts and in replenishing) and the conditions in which she did it 101-129 Appendix 3 The work of Ms Cannon (principally as an F&F customer assistant in a large store) and the conditions in which she did it 130-151 Case Numbers: 3304495/2018 & others 3 Appendix 4 The work of Ms Thompson (principally as a replenisher of non-food goods in a large store) and the conditions in which she did it 152-162 Appendix 5 The work of Ms Oz (principally as a replenisher of non-food goods in a large store) and the conditions in which she did it 163-175 Appendix 6 The work of Ms Garrod (as a customer assistant in an Express store, doing almost the full range of work done in such a store, including baking) and the conditions in which she did it 176-202 Comparators’ work (with the main area of work covered by the appendix in question underlined) Ambient DC comparators Appendix 7 The work of Mr Jones (assembly) and the conditions in which he did it 203-222 Appendix 8 The work of Mr Hornak (principally assembly and loading) and the conditions in which he did it 223-241 Appendix 9 The work of Mr Macko (principally assembly and loading) and the conditions in which he did it 242 Appendix 10 The work of Mr Davis (principally assembly, loading, unloading and marshalling) and the conditions in which she did it 243-245 Fresh DC comparators Appendix 11 The work of Mr Pratt (principally assembly and loading) and the conditions in which he did it 246-272 Appendix 12 The work of Mr Todd (principally goods in/tipping, goods: in checking, goods in: topping, and rechecking and grid walking) and the conditions in which he did it 273-290 Appendix 13 The work of Mr Pustula (principally assembly and management of MUs) and the conditions in which he did it 291-297 Case Numbers: 3304495/2018 & others 4 Appendix 14 The work of Mr Young (principally assembly and fork lift truck operation) and the conditions in which he did it 298-307 The relevant procedural background 2 Our first judgment was dated 12 July 2023 and was sent to the parties on that day. We refer to it below, i.e. in this judgment on reconsideration (“this judgment”) and wherever necessary in the 14 appendices to it (to each of which we refer simply as an appendix with a number, such as “appendix 1”) as our first reserved judgment. In it, we stated that we had concluded that the parties had approached the evidence on a legally erroneous basis, and we gave our reasons why that was so. We said in that judgment that we were intending to direct the parties to re-present their cases to us, or to recast their cases. After a hearing on 20 July 2023, at which that course of action was opposed, we agreed with the Leigh Day claimants and the respondent that we would direct those claimants and the respondent to recast their cases in one respect only each at that stage: the Leigh Day claimants would recast their case on the task of replenishment as carried out by one sample claimant, Mrs Worthington, and the respondent would carry out a recasting of its case in respect of loading as done by Mr Hornak. Those claimants and the respondent would then give an estimate of the likely time it would take to do the same job for the whole of the rest of the work of the employees about whose work they had adduced evidence at the stage two hearing, and the likely cost of doing that job. 3 In the document in which we recorded the orders following on from the hearing of 20 July 2023 and our reasons for them, we made it clear that what we were looking for was a complete recasting of the cases of the parties, stating the work of for example loading by reference(1) to the training materials showing how the respondent trained its staff to do the work of loading in an ambient DC, and then, if and in so far as those training materials did not state the whole of the work,

(2) the evidence showing how Mr Hornak did that work. As far as we were concerned, what was necessary (applying not only our own judgment of what was the proper approach, arrived at after much careful consideration, but also (1) the approach taken by Lavender J in Avery and (2) the analysis of Underhill P in Prest v Mouchel) was for the parties to state the work by reference to the respondent’s requirements of employees to do the work in question, so that the particular manner in which an employee did it was to be ignored if it was either the result of particular competence, or incompetence, or if it was not approved by the respondent. What happened next, up to and including 14 January 2025 4 What we got was (as we say in paragraph 35 on page 15 of our judgment dated 4 July 2024 which was sent to the parties on 5 July 2024; that was our second reserved judgment, and we refer to it below as such) was not a recast case but an amended case for each party on the task in question. In those circumstances, we concluded that there was no alternative to us, ourselves, carrying out the analysis Case Numbers: 3304495/2018 & others 5 which in our view was required by the interests of justice. In the course of carrying out that analysis we came to the clear conclusion that we could not, consistently with the interests of justice, limit our examination of the parties’ cases on the facts (which was all that we were considering at the stage 2 hearing) to what the parties had put before us as disputes for determination on the facts of 14 employees, and (2) it was necessary (applying what is now rule 41 of the Employment Tribunals Rules of Procedure 2024) to look at all of the evidence before us in order to (a) take a broader view and (b) give the parties a clear steer on how to advance their cases evidentially in regard to other sample claimants, or better still, on how to assess and agree the work of the rest of the 50,000 or so claimants and any further comparators. We add that at the time of the stage 2 hearing of March to May 2023, it was being said by the respondent that we would need to have two more stage 2 hearings before the question of value could be considered at a final hearing within the meaning of what we will call here for the sake of simplicity the equal value rules. We were, however, necessarily dependent at the start of our deliberations on what the parties had put before us, and what they had given us was, as we say in paragraph 49 on page 20 of our second reserved judgment, (1) a series of factual contentions about the work with (2) submissions by both parties on those contentions. Those factual contentions and submissions on them were made via what the parties called equal value job descriptions (“EVJDs”), which had then been used as vehicles for (1) the recording of the parties’ cases on the factual contentions in the form of what the parties called records of dispute, and (2) closing submissions. We return in paragraph 38 below to the manner in which the parties had advanced their cases, using as their startingpoints the EVJDs. 5 Because of the course which we took as described in our second reserved judgment, we could see that it was essential to permit the parties to apply for reconsideration of anything which we said in our factual determinations in that judgment which they thought we had arrived at for example either without taking into account a relevant factor (for example in the form of training materials which showed that we had made a mistake in arriving at a particular conclusion), or by taking into account an irrelevant factor. In addition, given that we had not given the parties an opportunity to make submissions to us on particular factual aspects, there was a risk that we had misunderstood something in arriving at the conclusions which we stated on the facts in the eight appendices to the body of the second reserved judgment (which was in total 619 pages long). Therefore, in paragraph 55 on pages 21-22 of our second reserved judgment, we said this. “Finally, we add something which is of critical importance from the point of view of the doing of justice. That is that we were in the circumstances forced by the interests of justice to do a job which in our view should have been done by the parties, but without the parties having an opportunity to address us on the things which we ourselves found by our own research. That is not the norm, and we would have avoided it if we could have done so. If any relevant party (i.e. the Leigh Day claimants, the Harcus claimants or the respondent) is of the view that we have made a material error in our understanding of the documentary or oral evidence before us, or their contentions in relation to it, then that party can apply for a reconsideration under rule 71 of the Employment Tribunals Rules of Case Numbers: 3304495/2018 & others 6 Procedure 2013 of any finding of ours which is materially affected by such putative misunderstanding. We have also borne it in mind that the IEs can apply to us for in effect clarification of any of our findings, using the route provided for by rule 6(3) of the EV Rules. Having said those things, we do not encourage either route being used, if only because these proceedings have already taken up much more judicial time than in our view they should have done, and because there is a need to act proportionately and otherwise in accordance with the overriding objective stated in rule 2 of the Employment Tribunals Rules of Procedure 2013. Nevertheless, especially given the length and complexity of the appendices (which resulted from the length and complexity of the EVJDs and the parties’ disputes about the content of those EVJDs), if any of the parties or the IEs seek clarification of any aspect of the appendices (including what appears to be an omission or a textual error which requires correction) then we will, through EJ Hyams, be willing (if the parties request it) to provide such clarification without the party or the IE having to use either of those formal routes or, as the case may be, correct the text and issue a certificate of correction.” 6 No party asked for clarification informally. Until 14 January 2025, the IEs said nothing to us about the matters which we had determined in our second reserved judgment. We return in paragraph 15 below to what the IEs said then. 7 The parties indicated that they intended to make applications for reconsideration and asked for an extension of time to do so. The respondent on 18 July 2024 asked for time to be extended “sine die”, on this basis. “A sine die extension would allow the parties the appropriate time to consider and reflect upon the detail of the Stage 2 Judgment. We confirm that the Respondent does not currently consider that it will be in a position to apply for reconsideration by the previously mentioned date of 16 August 2024. The Respondent does, however, anticipate that it will wish to apply for reconsideration of certain aspects of the Stage 2 Judgment once it has taken the time to work through each of the Tribunal’s factual findings.” 8 We gave the parties an extension of time only to 18 October 2024. In doing so, Employment Judge (“EJ”) Hyams said this in an email to the parties on 23 July 2024. ‘My colleagues and I are of the view that it would be right to limit the time for any application for reconsideration at this stage. That is for the following

[1]It would be necessary for it to be within the interests of justice within the meaning of rule 70 of the Employment Tribunals Rules of Procedure 2013 to carry out any reconsideration.

[2]I would need to decide, under rule 72(1) of those rules, whether there was “no reasonable prospect of the original decision being varied or revoked”. Only if I considered that there was not no reasonable prospect of the Case Numbers: 3304495/2018 & others 7 original decision being varied or revoked could the application for reconsideration be pursued.

[3]There would then need to be a hearing before the full tribunal at which the relevant matters were reconsidered. Technically, there is a possibility of our judgment as a whole being revoked, but we rather doubt that that would occur, and in any event it appears that the parties realistically accept that there is scope only for a reconsideration of any relevant factual finding.

[4]Here, the IEs might simply conclude that a factual finding of ours does not affect their assessment of the demands of the work of the relevant employee.

[5]Technically, it would be possible for a factual finding that we have made already to be reconsidered at the final hearing, on an application made during that hearing on the basis that as the factual matter is discussed at that hearing, something becomes apparent which was not previously apparent and which justifies an application for reconsideration.

[6]We have already concluded that many of the factual issues put before us were about things which, even if true, were unlikely to affect the assessment by the IEs of the demands of the work of the relevant employees for the purposes of section 65(6) of the EqA 2010.

[7]The real concern that the tribunal has had at, and in relation to, the Stage 2 hearing, has been the overall approach of the parties to the issue of what were the demands of the relevant employees’ work for those purposes. Any minor factual errors on our part are (assuming that we are right in our conclusions on the issues of principle) highly unlikely to affect the claims before us. That is not least because the parties can now reasonably be expected (despite the possibility of an appeal succeeding in relation to our conclusions on that overall approach, which for this purpose we believe we should ignore) to co-operate by(1) looking individually and together at the training materials which we have concluded are the primary and in many cases the determinative evidence of what was the work of the relevant employees for the purposes of section 65(6) of the EqA 2010 and then

(2) agreeing, in the light of our judgments (of 12 July 2023 and 4 July 2024, including for the avoidance of doubt the appendices to the latter) as much as is reasonably possible about whatever else, factually, might reasonably (in the light of our judgments) be thought to affect the IEs’ assessment of the demands of the work in question. In those circumstances, I am of the view that the tribunal should limit the time for the making of any application for reconsideration, and that an indefinite extension of time (which is what is meant by extending time sine die) is unlikely to be in the interests of justice. That is not least because it would be possible to make an application at a later date for the reconsideration of any part of our Case Numbers: 3304495/2018 & others 8 second reserved judgment, although whether it would be in the interests of justice for the finding then to be reviewed would have to be decided in relation to among other things the timing of the application. I have consulted my colleagues on this, and they are in fact in agreement with me. I therefore now propose to say that time is extended for making an application under rule 71 of the Employment Tribunals Rules of Procedure 2013 to 4pm on Friday 18 October 2024.’

[9]An order was then made by EJ Hyams to that effect. On 3 October 2024, he said this in a further email to the parties. ‘I have been reflecting on the extent to which the parties might reasonably ask for reconsideration. There is a recent authority on the extent to which a tribunal can lawfully reconsider a decision which is helpful in that regard. It is Ebury Partners UK Ltd v Acton Davis

[2023] EAT 40

[2023] IRLR 486

. In paragraph 24 of his judgment in that case, HHJ Shanks said this. “The employment tribunal can therefore only reconsider a decision if it is necessary to do so ‘in the interests of justice.’ A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a ‘second bite of the cherry’ and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT.” The extent to which we, the tribunal, said in paragraph 55 of our second reserved judgment that we would be willing to consider an application for reconsideration was limited. It was stated as follows. “If any relevant party (i.e. the Leigh Day claimants, the Harcus claimants or the respondent) is of the view that we have made a material error in our understanding of the documentary or oral evidence before us, or their contentions in relation to it, then that party can apply for a reconsideration under rule 71 of the Employment Tribunals Rules of Procedure 2013 of any finding of ours which is materially affected by such putative misunderstanding.” So, in order to justify an application for reconsideration of any finding of fact stated in any of the eight appendices to the body of the second reserved judgment in line with that indication, a party will have to be able to put in its Case Numbers: 3304495/2018 & others 9 application something which is sufficient to justify the assertion that it might be able to satisfy us, the tribunal, that we have “have made a material error in our understanding of the documentary or oral evidence before us, or their contentions in relation to it” and that that error had a material effect on that finding of fact. I add that, reminding myself of rule 72(1) of the Employment Tribunals Rules of Procedure 2013, the application must, in order to be permitted to proceed, relate to “the original decision”, and I must not conclude “that there is no reasonable prospect of the original decision being varied or revoked”. ... In the interests of justice, I now urge the parties to consider carefully whether they need to make any application for reconsideration, i.e. at all. What we said in paragraph 55 of our second reserved judgment was not an invitation to argue factual points afresh. The documents on which we have made our findings of fact are referred to in our second reserved judgment, and they speak for themselves. The oral evidence was recorded, and the transcriptions of that evidence speak for themselves. I therefore ask myself (without, of course, having seen what the parties might say in support of any application for reconsideration) what more can now be said by a party unless(1) there is some documentary evidence in existence which was not before the tribunal at the stage 2 hearing and which, if it had been before the tribunal, realistically might have resulted in us coming to a different conclusion on the particular factual issue to which it relates, or

(2) there was some documentary evidence before the tribunal to which we did not expressly refer and which, it is now contended, if taken into account would have led us to come to a different conclusion on the factual issue to which it relates. I add that we may already have seen and taken fully into account documents of the latter sort, but of course the parties will not know that at this stage.’

[10]The respondent (in an 88-page document) made a number of applications for reconsideration of factual determinations in our second reserved judgment, some of which it appeared to us at first sight were no more than an apparent attempt to press an argument that we had already rejected. The respondent did, however, helpfully put before us some relevant training materials which had not been in the bundle for the stage 2 hearing which took place between March and May 2023. In addition, there were some obviously potentially good submissions to the effect that we had in coming to some factual conclusions misunderstood the evidence before us, or otherwise erred.

[11]Both sets of claimants also made applications for reconsideration. Both of them were rather shorter than the respondent’s application. Both also raised some apparently good points. Some of the points raised in the Leigh Day claimants’ application were, however, no more at first sight than an attempt to re-argue something with which we had already dealt, at least by implication if not expressly. Case Numbers: 3304495/2018 & others 10

[12]One aspect of the Harcus claimants’ application for reconsideration related to what we had done in a number of places in the appendices to our second reserved judgment, which was essentially to say that we doubted that the outcome of a resolution by us of a dispute about a factual assertion would affect the assessment by the IEs of the value of the work of the employee to whose work for the purposes of section 65(6) of the Equality Act 2010 (“EqA 2010”) the dispute related, but that if the IEs found it to be about something that was relevant, then they could take into account our conclusion on the disputed matter. The precise manner in which the Harcus claimants put their application for reconsideration was as follows (the words were in paragraph 37 of the application for reconsideration). “Some of those paragraphs [in the eight appendices to our second reserved judgment], taken in isolation, might be argued to mean that the Tribunal has deliberately not made a determination about the relevance of a particular fact and has, instead, delegated that task to the IEs, or that the Tribunal is inviting the IEs to overrule the Tribunal unilaterally, abrogating the responsibility on the Tribunal to make that determination. The Harcus Claimants understand other paragraphs to be saying clearly either:(i) that the Tribunal has determined that a fact is relevant but that the materiality (i.e. the significance, or the difference which that fact will make to the assessment of value) is a matter upon which the IEs should opine in their reports (either expressly or impliedly); and/or

(ii) that the IEs may apply to the Tribunal to make further or ‘amended’ determinations in relation to the relevance of particular facts in the event that the IEs consider that this would assist them.”

[13]On 21 October 2024, EJ Hyams came to the view (and communicated it by email to the parties) that there was a reasonable prospect of one or more aspects of our second reserved judgment (i.e. one or more parts of one of more of the eight appendices to that judgment) being varied or revoked and that therefore we would be reconsidering the factual findings in our second reserved judgment. The parties and EJ Hyams then agreed that that reconsideration would take place on the papers unless we concluded during our reconsideration that we needed to give the parties an opportunity to be heard. All parties were given, and took up, an opportunity to respond to the other parties’ applications for reconsideration.

[14]We were unable to start to consider the parties’ applications for reconsideration until 6 January 2025. In the course of considering those applications, we found that in some places in the appendices to the body of our second reserved judgment, we had made statements about the content of an EVJD without making it clear how that statement was to be understood, and without focusing ourselves on the question whether the thing described in the EVJD was to be regarded as unnecessary in the light of some part of the training materials, or as a necessary statement of what the work in question was. We therefore realised that in some respects our findings of fact were incomplete. We had also, it was clear, made several mistaken cross-references, which would need to be corrected. In addition, we found that we had in some respects misunderstood the evidence before us. Case Numbers: 3304495/2018 & others 11

[15]We had nearly finished our initial deliberations on the parties’ applications for reconsideration when, on 14 January 2025, we were sent a document enclosed in an email by the IEs. The document started in the following manner. “1.0 Introduction 1.1 The scope and nature of the final documentation containing information pertinent to the IE’s task has been the subject of considerable debate. In a Note to Employment Judge Hyams on 13 March 2024 (copied to all parties), the IEs wrote; In other large cases upon which we have worked, the Stage 2 findings are incorporated into final Equal Value Job Descriptions by the parties. These are then exchanged and amended where agreed between the parties, and final versions are sent to the IEs in order for them to prepare their report on the question of equal value. We had anticipated that this exercise would take several weeks to complete in this case. If the raw material we are to use is to consist of the parties’ original job descriptions and an additional, separate document containing the Tribunal’s findings, we are concerned that this will require us to interpret those findings and make value judgements as to their specific relevance to the facts provided in the JDs. This might raise the possibility of extending the period for queries and possible disputes following our submission, adding to, rather than truncating the process. It may also mean that we make potentially frequent and/or lengthy applications to the Tribunal for clarification.”

[16]We had issued our second reserved judgment on the basis that we understood that the IEs would be able and willing to ignore factual findings, or agreed factual statements, if they thought that those things would be irrelevant. We had come to that understanding via what the IEs had said, as shown in red font at H28/2. There, the IEs had responded to something which the Leigh Day claimants had said they understood from a meeting with the IEs on 29 September 2022. The passage was this (and we have underlined what the IEs said which was originally in red font; we have also replaced “PoP” with “Point of principle”). “Mutuality / consistency 1. Point of Principle. It is acknowledged between the parties and endorsed by the IE that there is a need for mutuality between the JDs in respect of the inclusion of certain topics. So, for example, if something is deemed important enough to be included in a Comparator EVJD then the Claimant EVJDs will also include the equivalent information (even if the Claimants’ primary position is that that information is irrelevant). This is particularly relevant for topics such as absence management, accidents and hazards and performance management. Case Numbers: 3304495/2018 & others 12 Agree and the IEs will decide if this information is relevant to the EV assessment.”

[17]There was one other part of that document which was helpful: on page 5 of H28, there was this passage (in which we have replaced “G” with what it stood for, which was “Guidance”; words which were originally in red font, i.e. the IEs’ words, are again underlined). ‘Working conditions 17. Guidance. The IE indicated that there should be a section in the EVJDs on working conditions and that it should be limited to the facts of the physical nature of the working environment. Where a subjective adjective is used (e.g. “noisy”), additional narrative facts should be provided for context (e.g. “JH needs to shout as it is noisy”). Also, to include the provision and requirement of PPE such as ear defenders.

[18]“Guidance. The IE indicated that general statistics on accidents and injuries would be more relevant than the individual JH’s record of accidents.” 18 In fact, both parties focused on what had actually happened to both the sample claimants and the comparators, rather than what were the risks to them from working in the places where they worked, as indicated by such statistical evidence as was available. However, the claimants had also put some relevant statistics before us. The respondent in addition submitted that the performance management regime which it operated at its DCs was a relevant condition in which the comparators’ work was done. Our conclusions on those aspects of the parties’ cases are stated in our second reserved judgment.

[19]There was one further part of the document at H28 which was relevant, although we did not see its relevance until we received the IEs’ communication to us of 14 January 2025. That part was the following three paragraphs, under the heading “Factor Analysis” (with the IEs’ word, which was in red font in the original, “agree”, which was the only text inserted by the IEs, underlined by us). ‘Factor Analysis11. Guidance. The IE indicated that: i. it would be helpful for the parties to group relevant facts under the draft factor headings; ii. this ‘grouping’ (or ‘factor analysis’) should take the form of a small section of quoted text from the task section, followed by a cross reference back to the relevant text in the narrative section of the EVJD; agree Case Numbers: 3304495/2018 & others 13

12. At what point the parties should provide this ‘grouping’ (or ‘factor analysis’) is yet to be agreed. One option is that it should be done after all of the relevant facts have agreed or determined by the Tribunal – which is likely to mean after the Stage 2 hearing judgment. The other option is that it is done prior to all of the relevant facts having been agreed, in which case the parties will have to agree to form of wording to make clear to the Employment Tribunal that this ‘grouping’ (or ‘factor analysis’) forms no part of the Stage 2 Hearing.

13. Point of principle. The factor analysis under the draft factor headings does not amount to “facts relating to the question” of equal value and so is not a matter for the Stage 2 Hearing. It will not be considered at the RTMs [i.e. round table meetings].’

[20]We pause to record that on 26 September 2024, the IEs wrote to us in the following terms. “The Independent Experts are concerned that the quantity of papers we have received may make undertaking our assessments very unwieldy and time consuming. We will have to ensure that we take account of all the evidence that we have received. Normally we would receive a single job description per job holder, either agreed without a dispute at the Stage 2 or incorporating the findings of fact from the Stage 2 judgement. The Independent Experts need to run a number of trial assessments, focusing on three or four job factors in relation to three or four jobs. The two sources of information for this will be the ‘original’ EVJDs and the findings of fact embodied in the judgement of 4 July 2024. As none of these documents contain factor by factor breakdowns, this proposed trial phase will require a considerable degree of analysis and cross-referencing of data.”

[21]Returning to what the IEs said in their communication to us of 14 January 2025, on pages 7 and 8, the IEs said this. “3.3 Isolating pertinent facts in relation to certain factors3.3.1 When considering such factors as ‘knowledge’, ‘physical demands’ or ‘responsibility for assets’, the IEs were generally able to identify EVJD items that shone a light on these relatively empirical factors.

3.3.2 When considering factors that were less empirical in nature such as ‘problem solving’, emotional demands’, and ‘mental demands’, this became more difficult as the IEs did not have the benefit of the parties’ focused commentary on those aspects of jobs’ tasks and duties that illuminated these factors. Case Numbers: 3304495/2018 & others 14

3.3.3 As is common practice in all Equal Pay cases, the IEs sent the parties, in March 2021, a copy of the format for job descriptions. This included a section with a number of factor headings which would provide a focus for the parties to provide detailed notes and references to tasks, duties or responsibilities that would provide information directly relating to those factors.

3.3.4 This information is not included in the original EVJDs of some claimants, referred to in the judgement. However, it is included in judgements of other claimants, where later versions of the EVJDs are referred to, and all comparators (although this information does not conform to the recommended format as advised in the IEs’ note from 2021). This information will assist the IEs and similar information needs to be included in all EVJDs. 3.4 Understanding and applying the decisions made in the Judgement appendices.

3.4.1 The judgement contains a large amount of reasoning which the IEs do not need to refer to in their report. The reason why the Tribunal arrived at their decisions is not relevant to the Stage 3 Hearing.

3.4.2 The Rules of Procedure state that; (b) the independent expert shall prepare his report on the question on the basis only of the facts relating to the question.

3.4.3 We have, regrettably, found that isolating the facts determined in the Judgement has not always been easy. As an example, in the case of Carole Worthington, the Judgement reads; Para 217 Given that Mr Evans (who gave evidence, it will be recalled, for the respondent) said, in paragraph 59 of his witness statement, that “in practice we did not enforce this”, we thought that the factual dispute was wrongly maintained by the respondent. If and to the extent that the IEs regard it as relevant that the respondent stated the requirement but did not in practice enforce it, then they can of course take that factor into account. This seems to be asking us to rule on a dispute?

3.4.4 In order for the IEs to assess each job, they will need to start with the version of the EVJD used by the tribunal and refer to only the decisions in the judgement (not the reasoning for those decisions) along with any other documents that have been referenced by the Tribunal, such as training materials. These references cover many different documents amounting to several thousand pages.” Case Numbers: 3304495/2018 & others 15

[22]At the bottom of page 9 of their document, the IEs said this. “3.5 Comparator judgements The IEs accept that much of the information is repeated for each job, that is the nature of assessing multiple jobs. However, the IEs are required to report whether the work of each individually named claimant is equal to the work of each individually named comparator. The IEs are concerned that relying on alternative JD to assess a different specific job is another area where significant errors could easily occur.”

[23]We could not understand that as a matter of principle, given our understanding of the way in which section 65(6) of the EqA 2010 has to be applied. That understanding was that, applying23.1 what Lavender J said in Avery, as set out in paragraph 21 of our first reserved judgment, of 12 July 2023, and

23.2 what we considered to be an indication of great importance of Parliament’s intention in regard to section 65(6) of the EqA 2010, which was that section 65(2) of that Act has the effect that even work which it is claimed was like work need only be broadly similar (and not in fact the same) to be capable of being “like work” within the meaning of section 65(1)(a) of that Act, and that when considering whether work is such “like work”, “such differences as there are between their work are not of practical importance in relation to the terms of their work”, the value of the work of, say, 1000 loaders could not lawfully be found to vary in line with the extent to which individual loaders did it well or otherwise.

[24]The IEs then, at the top of the final page (page 10) of the document, said under the heading “Possible difficulties at Stage Three”: “The Stage Three hearing will focus on the IEs’ report and those of any partisan experts. Reports that depend upon more than one central EVJD per job holder will take a very long time to compile, will be prone to errors in referencing and will be potentially confusing in content and layout. These difficulties will be compounded at the Stage Three hearing, where navigating between documents under cross examination will be technically complex and, again, potentially highly confusing for all witnesses and the Tribunal.”

[25]We also could not understand that. We did not expect there to be a need to “focus upon more than one central EVJD per job holder”. As for “navigating between documents under cross examination”, that was not a problem for us, and would not in our view be either “technically complex” or “potentially highly confusing for all witnesses and the Tribunal.” Case Numbers: 3304495/2018 & others 16

[26]The IEs concluded: “4.1 If directed to work with what we have, the IEs will be able to produce a report. It is likely, however that it will;4.1.1 Contain many caveats concerning the proper attribution of facts found at the Stage Two hearing to the original EVJDs

4.1.2 Contain highly complex strings of references, sub-references and sub-sub-references.

4.1.3 Take a very considerable time to produce. 4.2 The IEs note that the Rules of Procedure state that; (3) At any stage of the proceedings the independent expert may make an application to the Tribunal for some or all of the facts relating to the question to be amended, supplemented or omitted. 4.3 We suggest that all of these difficulties can be resolved if the Tribunal reconsiders its position regarding the presentation of facts and now directs the Parties to produce final, definitive EVJDs, incorporating the facts found at Stage Two including the Factor related section to limit the additional documentation used. We cannot see the need for references to Stage 2 witness statements or transcripts of the hearing to be included. 4.4 Please note that the IEs are not asking the Tribunal to reconsider its judgement. Our concerns purely relate to the format and presentation of documents and the resolution of anomalies.”

[27]We were baffled by the assertion that there might be, or need to be, “attribution of facts found at the Stage Two hearing to the original EVJDs”.

[28]We were puzzled by the suggestion that the job which we were being asked to do included ordering the parties to “produce final, definitive EVJDs, incorporating the facts found at Stage Two including the Factor related section to limit the additional documentation used” (our underlining). We had no idea what that “Factor related section” was.

[29]We then found one in what appeared to be the latest version of the EVJD for Ms Williams, which was at H3. That document was in total 205 pages long, although on some pages there was only one paragraph and the final page was blank. On page 134 there appeared to be the start of the “Factor related section”. The factorial analysis ended on page 202, with the heading “Factor 17 – Responsibility for Stock”). In order to illustrate what the “Factor related section” contained, we now set out the complete content of page 134. Case Numbers: 3304495/2018 & others 17 “ANALYSIS

[30]Factor 1 – Knowledge Required and Used in the Job General 30.1. JH requires knowledge of the relevant Tesco policies, legal requirements, products, store and product layout, services, equipment and staff handbook including those that relate to the following tasks that make up JH’s role: 30.2. TASK A – CHECKOUT o Checkout preparation [2.2] o Maintaining cleanliness of the checkout [2.3] o Consumables [2.4] o Replenishment of scratchcards [2.5] o Replenishment of cigarettes [2.6] o Customer Service on Checkout [3] including:• Mystery shopper [3.2]

• Challenging, Aggressive and Inappropriate Customer Behaviour [3.4]

• Complaints [3.5]

• Suspending transactions [3.6]

• ASC [3.7]

• Damaged items [3.8]

• Price enquiries [3.9]

• Queues [3.10]

• Lost property [3.12] o Scanning [4] including:

• Soft keys [4.2]

• Voiding transactions [4.3]

• Not on file items [4.4]

• Scanning heavy products [4.5]

• Multiple products [4.6]

• Tagged items [4.7]” 30 We thought that there was a real risk that there would be some double-counting arising from that factorial analysis. Sure enough, a quick check showed that there were references to “Not on file” items also on pages 141 and 168. In addition, if the training required to gain that knowledge were taken into account, then that would almost certainly involve double-counting. Case Numbers: 3304495/2018 & others 18

[31]Moreover, we found the idea of there being a need to know (as a part of the job of being a checkout operator) that there was a “mystery shopper”, or that there were “soft keys”, was at least dubious. That was for the following reasons.31.1 The fact that there was a mystery shopper would have added to the pressure on Ms Williams (or any other checkout operator). If she did not know about the mystery shopper then she was in blissful ignorance. In any event, she did not need to know about the possibility of serving a mystery shopper in order to do her job.

31.2 Similarly, Ms Williams did not need to know about soft keys as such: she simply needed to know how to operate a till, and if there were soft keys then she needed to know how and when to use them. Their use was part of the role of a checkout operator, and we thought that the precise form of the keys on the till was not something which was capable of being separated out from the requirement for knowledge of how to use the till and the need to pay attention when using it.

[32]We had already said something to the same effect in paragraph 17 on page 8 of our second reserved judgment about the work of a comparator, namely: “Having said that, the precise commands to follow and which button needed to be pressed next on the AMCs were (and, we thought, always would be) unlikely to need to be determined by an employment tribunal for the purposes of enabling independent experts of the sort who are appointed by the tribunal from the list of ACAS-appointed experts in equal value hearings, to do their job.”

[33]We were not attracted by the proposition that we should direct the parties to(1) in effect repopulate the EVJDs, which we had found to include irrelevant things and to have been unhelpfully repetitive, and

(2) supply to the IEs revised sections such as the one of which we have set out the first page in paragraph 29 above. We also could not see why it was now being said by the IEs (in paragraph 4.3 of the passage set out in paragraph 26 above) that we should “limit the additional documentation used”, given that in the transcript of the hearing of 20 July 2023, there was this passage (from line 22 on page 108 to line 24 on page 109). “JUDGE HYAMS The other thing I was going to say was that if you have a statement that the task is to be done in a certain way by reference to this – to a document such as this, could it not be done by reference? Would it be necessary to – or would it be necessary to cut and paste, for example, these tick box, or these tick tasks, as it were, on that cage? Would you want them to be cut and pasted or would it be possible to be said that the job should be done in the way shown in the middle column on page whatever it is, 8 of document – Case Numbers: 3304495/2018 & others 19 MS SPENCE: I’d actually suggest, sir, that these are included as an appendix. JUDGE HYAMS: Yes. MS SPENCE: Because they will apply to a lot of jobs. JUDGE HYAMS: That’s what I thought. MS SPENCE: So if they’re done as an appendix and they’re the parts of the training material, then we can refer to it as the appendix and the job descriptions can refer to it as the appendix. JUDGE HYAMS: Yes. MS SPENCE: Rather than putting it in exactly the same in every single job description. JUDGE HYAMS: That makes the document simpler. MS SPENCE: Yes. JUDGE HYAMS: And what you’re saying is you would like them to be incorporated by reference rather than incorporated in text form. MS SPENCE: Yes.”

[34]While Mr Jones then prompted Ms Spence to say that she was talking about incorporating only relevant pages, and not whole documents, we found what Ms Spence had said there about incorporating, in a statement of a person’s work, training documents in an appendix to be completely sensible.

[35]There was a separate reason for thinking that what the IEs were now asking us to do was going to be rather problematic. That was that any attempt by the parties to distil into a series of EVJDs our findings of fact about the work of the relevant employees for the purposes of section 65(6) of the EqA 2010, including what was in the training materials which we had concluded showed (or at least showed most clearly) elements of the work, was in our view likely to be a rather time-consuming exercise. That was because it(1) was likely to give rise to numerous factual disputes about the words used, and

(2) was likely therefore to lead to us having to make further determinations about the words to be included in the EVJDs. In addition, we thought that it was critically important that we and the IEs had as concise a statement of the work of the relevant employees as was possible, and we had found the EVJDs to be rather the opposite of such a statement. As a result, we concluded that giving a direction of the sort sought by the IEs on 14 January 2025 was likely to (1) cause the parties to incur much further cost, (2) lead to significant further delays, and

(3) cause Case Numbers: 3304495/2018 & others 20 there to be a need for more tribunal hearing (as opposed to deliberation) time (and therefore costs for the parties) to be incurred. That was because there would almost certainly be a need to resolve disputes arising from a party purporting to incorporate in the EVJDs our findings of fact, including what was in the training materials that we had incorporated by reference.

[36]There was a further factor which caused us to be concerned about what the IEs were now saying: that they were now suggesting that we were leaving it to them to determine whether or not something was relevant and that that was wrong of us. Yet, as we record in paragraph 16 above, the IEs had said in terms that they would decide whether something before them was relevant and ignore anything that they found to be irrelevant.

[37]However, consistently with what the IEs were now saying about the need for us to make positive findings on relevance, the main part of the Harcus claimants’ application for reconsideration related to the places in the eight appendices to the body of our second reserved judgment where we had said that we doubted that something was relevant but that we could not say, without knowing how the IEs were going to carry out their analysis of the work, whether or not it was relevant. The Harcus claimants were, in their application for reconsideration, now saying that we should decide whether or not those things were relevant. The parties’ use of the EVJDs

[38]That led us to remind ourselves that the EVJDs had been used as the basis for the parties’ cases on the facts, i.e. factual assertions the accuracy (or truth) and relevance of which it was for us to decide. We reflected on the fact that assertions of those kinds would normally be advanced via pleadings and submissions. The evidence to support what was said in those pleadings and submissions would be in witness statements which did not refer expressly to the pleadings. Here, much of the witness statement evidence consisted of statements directly linked to, and intended to support, what was said in the EVJDs.

[39]The EVJDs had then been used as the vehicles for the so-called records of dispute, in which a huge number of disputes about the words used in the EVJDs were set out. Those records of dispute had then, as we say in paragraph 50 on page 20 of our second reserved judgment, been used as the vehicle for the parties’ submissions. In many cases, the submissions were about the relevance of the claimed fact. Otherwise, the submissions were about the accuracy of the precise words used or proposed to be used in the EVJD in question.

[40]We then reflected on the approach which was now being taken by the IEs and the parties, including the Harcus claimants in asking us to decide now whether or not any possibly relevant fact was indeed relevant, or was in our judgment irrelevant. We realised that the parties and the IEs had proceeded by thinking that if they put something into an EVJD then it would have to be taken into account by us and the IEs unless we specifically decided that it was irrelevant. In addition, the parties had all worked on the basis that if there was a dispute maintained in relation to something Case Numbers: 3304495/2018 & others 21 which they had put into an EVJD then we would have to resolve that dispute. That was expressly the respondent’s position, as stated in paragraph 120 of its main opening skeleton argument, which we set out in paragraph 32 of our reserved judgment of 12 July 2023. For convenience, paragraph 120 was in these terms. “It is important to note that Stage 2 hearings are not like regular Tribunal cases where all facts do not necessarily have to be found as many will be background to the central issues in dispute. In Stage 2 hearings, every point of fact in dispute which is relevant to evaluation requires determination for the purposes of the job description, and in this case, there are thousands of them (although the parties will continue working to narrow disputes up to and during the hearing).”

[41]No authority was given either for the proposition that “Stage 2 hearings are not like regular Tribunal cases where all facts do not necessarily have to be found” or for the proposition that “every point of fact in dispute which is relevant to evaluation requires determination for the purposes of the job description”. If that were correct, then the issues for determination would be determined by the parties and not the tribunal, which did not seem to us to be correct. It may be that the respondent recognised that that could not be correct because in that passage it recognised that only a “point of fact” which was “in dispute” which was “relevant to evaluation” (our emphasis) needed to be determined.

[42]Relevance is always a matter of law, in the sense that it is for the court or tribunal to decide what is relevant: it is not something which the parties can decide, although what they say about relevance will usually be of great importance. In addition, only material facts need to be found by the court or tribunal. In saying that, we bore it in mind that the concepts of relevance and materiality overlap (the fourth Concise Oxford English Dictionary definition of “materiality” being said to be applicable now chiefly in a legal setting and being “The quality of being relevant or significant”).

[43]In any event, we had been presented with disputes about factual assertions on the basis that we had to determine all of those disputes, expressly. Our answer to that was to do what we described in paragraphs 52-54 of our second reserved judgment, and to conclude in the manner about which the Harcus claimants complained that some disputes were about factual matters which might be relevant to the IEs’ assessment but that if they did not find them relevant then they could ignore them. We had also said nothing about the things which the parties had agreed about the work of the sample claimants and their comparators unless we had concluded that what they had agreed to have been done was not something which it was part of the work of the employee in question to do for the purposes of section 65(6) of the EqA 2010. By doing that, we were, as far as we were concerned, permitting the experts to take into account those agreed things on which we had expressed no adverse view.

[44]We therefore again reflected on what was our task at the stage 2 hearing. We had concluded (and on reconsideration we came to the same view) that our task was to decide what was the work of the sample claimants and their comparators and in what relevant conditions it was done. We had ourselves had no clear picture of what that Case Numbers: 3304495/2018 & others 22 work was from the EVJDs which were produced by the parties, even at the end of closing submissions, possibly because the EVJDs were not designed to give such a picture. In addition, focusing on disputes about discrete elements of the work had led to a fragmented and sometimes repetitive picture of the work of each sample claimant and comparator. We had, in the course of coming to the conclusions on the facts which we had stated in the appendices to our second reserved judgment, gained a much clearer picture of the work of the sample claimants and their comparators than we had been able to gain from all of the material and submissions before us at the end of the stage 2 hearing of March to May 2023.

[45]We then reminded ourselves that 6(1) of the Employment Tribunals (Equal Value) Rules of Procedure 2013 provides that ‘At a stage 2 equal value hearing the Tribunal must – (a) make a determination of facts on which the parties cannot agree which relate to the question and must require the independent expert to prepare the report on the basis of facts which have (at any stage of the proceedings) either been agreed between the parties or determined by the Tribunal (referred to as “the facts relating to the question”)’.

[46]We concluded that those words were not (at least expressly) a statement that a tribunal has to require one or more IEs to prepare a report on the basis of all of the facts which have been agreed by the parties, no matter how improbable some of those “facts” appear to the tribunal to be, and even if some of those “facts” are about things which the tribunal, applying its understanding of the law (which may differ from that of the parties: we return to this issue in the next paragraph below), concludes do not “relate to the question”. We concluded too that it was not a statement that the tribunal must require the IEs to prepare a report on the basis of all of the contents of an EVJD (no matter how it was written). Rule 6(1) in our view required a tribunal to(1) come to conclusions about the work of one or more claimants and one or more comparators within the meaning of section 65(6) of the EqA 2010, then

(2) state in one way or another in sufficiently clear terms (a) what it had decided was the work of the claimant(s) and comparator(s), and (b) the relevant conditions in which that work was done, and then

(3) require the IEs to prepare their report on the basis of that statement of that work and those conditions. In regard to the extent to which rule 6(1) required a tribunal to take into account an agreed fact that for example defied what an employment tribunal saw as being the reality, we saw that the employment tribunal determining the equal value claim of Mrs A Ahmed & Others v (1) Sainsbury’s Supermarkets Limited and (2) Diamond DCO Two Limited, in voluntary liquidation (formerly Lloyds Pharmacy Limited) (Multiple Case Numbers 8614 & 10291) (“the Sainsbury’s case”) in paragraph 33 of its judgment approved on 28 February 2025 and sent to the parties on 3 March 2025 (it was stated to have been sent on 3rd February 2025, but plainly that was a mistake), on page 8 of 548, said that it had “on a handful of occasions altered wording the parties have agreed, but only” in three situations, the final one of which was “where what we have changed struck us as particularly problematic”. While, obviously, that approach was not binding, we found it helpful to see that another tribunal determining a comparable set of claims had arrived at the same conclusion as we had in this respect. Case Numbers: 3304495/2018 & others 23

[47]We also thought that rule 6(1) of the of the Employment Tribunals (Equal Value) Rules of Procedure 2013 had to be read as requiring a tribunal to determine only the facts which it finds to be relevant. That conclusion was fully supported by what was said in paragraph PI[986] of Harvey on Industrial Relations and Employment Law (“Harvey”), which was that “what is of central importance in giving reasons is to provide a clear account of the tribunal’s process of reasoning on the principal points of fact and law”. What was said in paragraph PI[987] of Harvey and what was said by the Employment Appeal Tribunal (Choudhury P presiding) in paragraphs 52 and 53 of its judgment in Citybank NA v Kirk 2022] IRLR 925 fortified us in coming to that view. As for what is relevant, that can be decided lawfully only by applying the right legal test. If a court or tribunal is presented with an agreed statement of the law, that does not mean that the court or tribunal must accept that the law is as so stated. While that is obviously correct as a matter of principle, there is recent clear authority for the proposition: Williams v General Dental Council

[2023] EWCA Civ 481

[2023] ICR 1149

[48]We found it to be of further assistance that the tribunal’s understanding in the Sainsbury’s case about the extent to which all factual disputes put before the tribunal in an equal value claim have to be decided, was comparable to our understanding in that regard. In paragraphs 40-42 of its judgment, on page 11 of 548, the Sainsbury’s tribunal said this. “40. If all the many small differences the parties have asked us to resolve matter, in the sense that they will affect the outcome of stage 3:40.1 the Lead Claimants’ job descriptions and the experts’ reports produced on the back of them will apply only to the Lead Claimants themselves and they will not be Lead Claimants in any meaningful sense;

40.2 every Claimant will potentially require their own stage 2 hearing, expert’s report, and stage 3 hearing. 41. We are firmly of the view that this is not the true position. If it were the true position, it would be impossible to find anyone suitable to be a Lead Claimant because no Claimant would ever be sufficiently representative of the others in her job role; and in practice equal pay litigation of this kind would never conclude, because there would need to be thousands of stage 2 hearings, experts’ reports, and stage 3 hearings. 42. It must follow that the parties have been arguing about, and asking us to adjudicate upon, things that don’t matter. That is a very unsatisfactory state of affairs”.

[49]We were fortified in our view that the EVJDs were an unhelpful vehicle for the determination of the facts of the claimants’ and their comparators’ work and the Case Numbers: 3304495/2018 & others 24 relevant conditions in which it was done by the following two paragraphs a little further on in the judgment of tribunal in the Sainbury’s case. ‘44. The independent experts indicated that they would like the job descriptions to include a section on “Demands”. Presumably this was because they thought it would help them when they came to prepare their reports. The draft job descriptions for both Lead Claimants and Comparators were prepared on that basis. A great deal of work was evidently carried out drafting the Demands sections of the job descriptions and debating and trying to agree them. Taking the draft job description of LD (Sales Assistant Lead Claimant) as an example, it has three sections: Section 1 – Introduction and Overview; Section 2 – Tasks; Section 3 – Demands. The Demands section took up 50 out of 94 pages of her draft job description. It has the following main headings: Knowledge and Understanding; Responsibility for Company Resources; Responsibility for Customer Services; Physical Skill; Cognitive Skill; Communication Skill; Mental Effort; Physical Effort; Environmental Demands. Those headings are understood to reflect the independent experts’ provisional proposed ‘factor plan’. 45. As it happens, we have come to agree with Sainsbury’s that, with the benefit of hindsight, it would – from the Tribunal’s point of view at least – perhaps have been better had the Demands sections of the job descriptions not been there. The reason we say this is that there being Demands sections seems to have encouraged the Claimants in particular to an extent to draft those sections with a view not to neutrally describing the tasks job holders did but to suggesting that (in the Claimants’ case) the tasks the Lead Claimants did were demanding. It has also led to the Lead Claimants’ job descriptions being unnecessarily long and repetitive, with essentially the same information often being contained once in section 2 and multiple times in section 3, with (using the Claimants’ proposed wording) a slightly different emphasis each time. However, when Sainsbury’s got around to making its suggestion that the Demands sections should be done away with, what might once have been a reasonable and legitimate concern to raise had become unhelpful and unconstructive.’

[50]That mirrored our experience of the EVJDs here, although the structure of the EVJDs was different, and we had not been asked to determine the “Factor Related Section” part of each one to which we refer in paragraph 29 above.

[51]We could summarise what had happened in this way. If our understanding of what was required in a claim that a claimant’s work was equal in value to that of a relevant comparator within the meaning of section 65(6) of the EqA 2010 was correct, namely that the work had to be determined by reference to what the employer in fact (i.e. as a matter of fact, as found by us) required of the employees, and not simply what they actually did, then the parties’ representatives had asked the parties the wrong question. If you ask the wrong question then you are likely to get the wrong answer. Case Numbers: 3304495/2018 & others 25 That was what had happened here in some respects, but only some: in some respects the work of the claimants and their comparators was (as was likely to be the case where the claimant was employed by a small employer) determinable only by reference to what the parties said about the work which was actually done. So, in some respects, the evidence before us was entirely apt. However, in some respects, the evidence had been adduced without taking into account the extensive documentation showing how the respondent (as a matter of fact, as found by us) required the work to be done. In other respects the text of some of that documentation had been either incorporated or (worse) paraphrased, without making it clear that that had happened.

[52]We reminded ourselves that the task of an IE is to assess the demands of the work of a claimant and a comparator by analysing that work as it has been found by the tribunal to be, but in any event we concluded that we were going to be helped much more by an analysis (whether carried out by the IEs or us) of the demands of the work as found by us (including where relevant by reference to what was said in the EVJDs about the work) in as coherent and succinct a manner as we could achieve, than by an analysis carried out by reference to the EVJDs before us as a whole (i.e. even as completed by the parties in accordance with a direction of the sort that the IEs wanted us to give). We also could see that if we now stated the work of each of the sample claimants and their comparators in as comprehensive and coherent a manner as we could devise without taking a disproportionate amount of time to do so, namely by stating the tasks which they were given to do, without(1) unnecessary repetition, which would be possible if we stated the work involved in the carrying out of a particular task once only, and

(2) irrelevancies of the sort which we had concluded there were in the EVJDs, then the parties would have a series of templates showing how they should approach the work of the rest of the claimants and their comparators, i.e. not using the EVJD templates which had led to inordinately lengthy EVJDs with much repetition and much irrelevant material. That, we hoped, would at least minimise the scope for factual disputes in relation to the work of the rest of the many thousands of claimants in this case. The appendices to this judgment

[53]For all of the above reasons, we decided that we should finish the job of stating precisely what was the work of each sample claimant and each comparator, and to determine questions of relevance as much as possible: we were in some cases still able to conclude only that a particular fact was not irrelevant and that it would be open to the parties to make submissions at the final hearing about the relevance or otherwise of that fact, or alternatively its weight. A good example is our finding stated in paragraph 147 below. In any event, we concluded that we should state the work of each sample claimant and comparator by reference to the tasks which they were required as part of their work for the purposes of section 65(6) of the EqA 2010 to do for the respondent, and to do so employee by employee, and as far as possible without repeating conclusions on the tasks made previously. That is what we have done in the appendices to this judgment, including where appropriate by incorporating parts of the EVJD for the employee in question. In the course of doing so, we have considered the relevance of each factual assertion made in, or in relation Case Numbers: 3304495/2018 & others 26 to, each EVJD, including those factual assertions which were agreed (and which were implicitly accepted by the opposing party to be relevant), and we have reconsidered our factual conclusions in our second reserved judgment. We have in stating the work of each relevant employee taken into account the things which the parties have said to us in their applications for reconsideration (and their responses to the other parties’ applications for reconsideration). We have also in several cases in effect added to a statement made in another (preceding) appendix to this document of what was required for a particular task (such as operating a checkout). We have done that because the task in question was stated in an individualised fashion in these proceedings and we have had to make our findings of fact by reference to the work of those individuals. What we say about the tasks done by the sample claimants and their comparators is therefore to be read cumulatively.

[54]Having again found it particularly helpful to see what each task involved by looking at the relevant training materials showing how (as found by us on the facts) the respondent intended the task to be done, we concluded that we should incorporate those materials by reference. We add that we have sought to avoid repetition, but that avoiding repetition was impossible where we have incorporated training materials and then for the sake of completeness and the avoidance of doubt incorporated parts of the EVJD in question which cover some of the same ground as is covered in those materials. For the avoidance of doubt, if we have not referred to a specific part of the EVJD, then we have not regarded it as stating a material part of the work of the employee to whose work the part in question relates. That may have been because we concluded that it was about something which was irrelevant, or it may have been because it was inconsistent with one or more of our findings of fact. Similarly, if we have not determined a dispute in relation to a part of an EVJD, then (assuming that we have not erred by omitting to take into account something relevant, a possibility for which we make provision in paragraph 334 below) it is either because we accepted the other party’s opposition to that part on the facts or because we concluded that the dispute was about something that was irrelevant. While (as must be clear from what we say in all three of our judgments arising from the stage 2 hearing which we conduced in March to May 2023, including this one) we disagreed with the proposition that the IEs or we were obliged to take into account everything that was agreed by the parties, and while we ourselves found much that was agreed to be a less clear and coherent statement of the work than the documentary evidence relating to that work before us, we concluded that the IEs might doubt that they could take into account something which was agreed if we did not specifically endorse it. As a result, we now make it clear that if they see something which is agreed and to which we have made no reference in any of our three judgments, then they can take it into account, and we will assess the weight of the agreed thing (subject to submissions and any clarificatory evidence at the final hearing) when we see it in their report to us. Accordingly, what we have done is to incorporate specifically those parts of the EVJDs which we found to be relevant and accurate, but we have not precluded the IEs from taking into account something agreed which we have not ourselves found to be material at this stage.

[55]We found when we looked back at our determinations of factual disputes in the eight appendices to the body of our second reserved judgment that the reasons which we Case Numbers: 3304495/2018 & others 27 had given for those determinations were helpful as a statement in some cases of the work in question itself, and that we both could reasonably, and should, incorporate those determinations by reference in our statements of the work of the employee in question in the relevant appendix below.

[56]We apologise to the IEs for what will appear to them to be a less than ideal approach. We have taken it because there was in our view in the circumstances no alternative to referring by cross-reference to something which stated a material fact (especially where the fact had to be understood in its factual context) or not only explained it in helpful words but also illustrated it with highly informative photographs. In addition, on reconsideration, we found that(1) the training videos of which the respondent had reminded us as part of its recast case relating to loading as done by Mr Pratt, which were D9/186, D9/192, D9/511, D9/512, D9/525, D9/538, and D9/652,

(2) the video at D9/187 to which the respondent drew our attention in its application for reconsideration, and

(3) the video at D9/535, were very helpful evidence of a number of aspects of the work in a DC to which no words of description could get close, let alone replace. Having realised the evidential weight of those videos, we searched the hearing bundle for further videos and we found several further training videos relating to the work of the comparators to which we were not referred but which were very helpful evidence about what was involved in the work of a comparator. We refer to those videos in appendices 7-14 below. We also found several very helpful videos relating to the work of the claimants, including C7/707 and C7/711, both of which concerned store security, and C7/668, entitled “Working Safely”, and we refer to them where relevant below. We emphasise that we do not expect what we have done in the 14 appendices below to be repeated in the event of a need for one or more further stage 2 hearings. Rather, we are expecting (and if necessary we will direct) that the work of any further sample claimants and comparators is stated by taking the approach which we have taken in the 14 appendices below, but in a way which avoids as much as possible the kind of repetition which we have had to adopt because of the manner in which the parties’ evidence and cases were put before us. The direction would be of the sort described by us in paragraph 3 above. Our conclusions on the reconsideration applications

[57]Before we state the work of each sample claimant and comparator in the manner stated in paragraphs 53-55 above, we now formally state our conclusions on the applications for reconsideration. As we say in paragraph 53 above, all of those conclusions are taken into account in the appendices to this judgment, but they needed to be set out in sequence here. We take the respondent’s application first. The respondent’s application for reconsideration

Introduction

[58]The respondent stated its application as a series of numbered submissions but with the numbering restarting under each subject-heading. We now respond to those submissions in turn. For the sake of simplicity and brevity (not least because in appendices 1-14 below we have stated what we intend to be comprehensive findings Case Numbers: 3304495/2018 & others 28 of fact in regard to the work of the sample claimants and their comparators), in some places we do not rehearse the submission beyond stating the words used by the respondent to summarise it; we merely respond to it. Unless we state otherwise, we concluded that we should reject the submission and not vary our factual findings. The work of Mrs Worthington Submission 1: Security related incidents

[59]What Mrs Worthington experienced by way of “security related incidents” was irrelevant. The relevant factual issue was what were the risks arising from working on the shop floor, and we came to the same conclusion as that of the IEs (see paragraph 17 above) in that regard, which was that statistics were relevant, and that individual experiences were not material facts on which the assessment of demands could sensibly be made. Submission 2: Frequency and duration of visits to the chiller cabinets

[60]The issue here, applying our understanding of section 65(6) of the EqA 2010, was what was in fact required by the respondent of a dairy replenisher, and whether what Mrs Worthington did was typical of such a replenisher. For the avoidance of doubt, our failure to make findings of fact on “(a) the frequency with which the JH visited the chiller for the purposes of storing or retrieving a cage and when sorting backstock; and (b) the duration of each of those visits” was deliberate. That was on the basis that the work of a dairy replenisher would, we could see as a matter of common sense, involve going into the dairy chiller from time to time every shift, and the idea that we could decide whether it would normally take for example five minutes rather than six was in our view wholly unrealistic. That kind of detail was also in our view not going to be relevant to a determination of the demands of the work of a dairy replenisher. In any event, the time spent by a dairy replenisher in a store’s chiller was going to be only as long as it took to do what was necessary in order to complete the task of either retrieving cages or sorting backstock, neither of which could be said always to take the same amount of time on each occasion when it was done: the time spent on carrying out both tasks would vary according to the circumstances. Submission 3: Placing of cages

[61]Our conclusions in paragraphs 38 and 39 of appendix 1 on page 93 below are sufficient to resolve any reasonable doubt about the requirements of the respondent of replenishers in relation to the placing of cages on the shop floor when replenishing. Submission 4: Determining reductions

[62]This submission was an attempt to re-argue a point which we had already determined, with no justification for seeking to re-open our determination of the point. The work of Siobhan Williams Case Numbers: 3304495/2018 & others 29 Submission 1: EVJD versions

[63]We were ourselves not sure whether the final version of the EVJD that we considered in relation to the work of Ms Williams, which (as we say in paragraph 29 above) was at H3, was the final version (referred to by the respondent in this submission as “V4”). However, for the avoidance of doubt, all of our determinations for all of the sample claimants and the comparators were made by reference to what the parties said in their closing submissions by reference to the work as stated in the EVJD in question. So, if something was said in such a submission showing that words had been agreed, or that new words were proposed by the party making the submission (or the other party, to which the submissions responded), then we regarded those words as the then-current wording (or proposed wording) of the EVJD in question. We should say, however, that sometimes the parties’ understanding of what had been agreed differed, and all we could do was work with what was in the parties’ closing submissions. All references to words in EVJDs below are therefore unless otherwise stated to the words set out in one way or another in the parties’ closing submissions. Where we have seen a need to be specific about from which document we have drawn words which we understood to have been proposed at the time of closing submissions by one party or the other, we have stated from where we have drawn those words. If nothing else, the difficulty of focusing on what was in the so-called “EVJDs” showed how difficult it could on occasion be to understand what was being asserted in this stage 2 hearing about the alleged facts. We emphasise here that the IEs must read all of our references to the EVJDs in the light of what we say in this paragraph. Janice Cannon: Appendices 3 and 4 Submission 1: Frequency of replenishing running rails

[64]We were unable to see how the precise frequency with which Ms Cannon “replenished ... running rails of hanging items that were in the F&F Warehouse” could affect the determination of the demands of her work for the purposes of section 65(6). Hence our failure to determine the dispute about such frequency. Submission 2: Store deliveries

[65]The respondent has read what we set out in paragraph 65 on page 170 of our second reserved judgment as stating something directly relevant to what Ms Cannon did. We were not stating precisely the work that Ms Cannon in that paragraph. The passage was helpful in showing that when she collected stock from the holding area, it would have come directly from the lorry which had delivered it. In any event, since the document from which we set out the quotation was directed at the reader, a reference to what “colleagues” did was plainly not a reference to what the reader did. Submissions 3-5 Case Numbers: 3304495/2018 & others 30

[66]These submissions relate to what we said in the appendix in which we did not make findings of fact about the work of Ms Cannon but in which we stated why we stopped trying to fit our findings of fact into the EVJDs before us: appendix 3 on pages 153- 180 of our second reserved judgment.

[67]In any event, the content of the respondent’s reconsideration application submissions 3-5 in relation to the work of Ms Cannon gave us no cause to think that what we had said in the paragraphs of appendix 3 on pages 153-180 of our second reserved judgment to which those submissions referred, was in any way flawed. Submission 6: Timing of deliveries and impact on work

[68]This submission was in reality part of submission 8. Submission 7: Random searches

[69]We accepted that we wrongly said in paragraph 25 on page 186 of our second reserved judgment that the respondent accepted that Ms Cannon “was subjected to random searches of her clothing”. However, C7/147/10-11, to which we referred in paragraph 212 on page 82 of our second reserved judgment, showed what was required and in substance it was a search of clothing. Page 10 of C7/147 was in any event applicable and determinative. Submission 8: Interruption by customers

[70]This submission related to what we said in paragraph 42 on pages 190-191 of our second reserved judgment. It appeared that the respondent had failed to read it as part of the passage consisting of paragraphs 41-47 on pages 190-194 of that judgment. Submission 8 ended with the following single-sentence paragraph (90). “For the reasons above, the Tribunal is invited to find that the JH could be interrupted only during times when the store was open and she was working on the shop floor.”

[71]That was obvious and did not need to be the subject of an explicit finding of fact. The work of Ms Thompson Submission 1: Frequency of assisting with replenishment of health and beauty

[72]This submission (which was the only one relating to the work of Ms Thompson) was based on a mis-reading or a misunderstanding of the passage of Ms Thompson’s evidence which we set out in paragraph 134 on pages 284-285 of our second reserved judgment. The work of Ms Garrod Submission 1: Closing submissions and EVJDs Case Numbers: 3304495/2018 & others 31

[73]We answer this submission in paragraph 63 above. Submission 2: Frequency of putting delivery paperwork behind the tills

[74]For the avoidance of doubt, we saw the frequency with which Ms Garrod put paperwork behind the tills as not being likely to affect the assessment by the IEs (or us) of the demands of the work of Ms Garrod for the purposes of section 65(6) of the EqA 2010. In our view what was relevant was as stated, in our view sufficiently, in paragraph 71 on page 338 of our second reserved judgment. Submission 3: Details in relation to replenishment of horticulture stock

[75]In paragraph 113 on page 17 of its document stating its reasons for seeking reconsideration of our second reserved judgment, the respondent wrote this: “The Tribunal has not determined which flowers and plants were sold at each of Danbury and Broomfield Road.”

[76]Indeed we did not. That was in our judgment a detail which was not material. On reconsideration we came to the same view. Submission 4: Frequencies of tasks related to Assisted Service Checkouts (“ASCs”)

[77]We could not see how the frequency with which Ms Garrod “carried out tasks related to ASCs” (which tasks we described in detail in paragraphs 173-176 on page 365 of our second reserved judgment) was relevant. It was clearly agreed (and therefore did not need to be the subject of a determination by us) that “there were no ASCs at Danbury”, so there was no need for us to (as we were now being invited by paragraph 119 on page 17 of the respondent’s application for reconsideration) “make a finding that the JH never carried out tasks relating to ASCs whilst at Danbury”. Submission 5: Time spent in the freezer and chiller

[78]In paragraph 126(a) on page 18 of its application for reconsideration, the respondent invited us to “make [a finding] that ... the period of time during which the JH worked in the chiller was limited to the Broomfield Six Months”. That was not so according to what Mr Diment said in paragraph 342 of his first witness statement, where he said this. “When not during the Broomfield Six Months, Roxy spent around an hour once every three weeks replenishing fresh stock because, by the time she had finished her Set Routine and completed frozen replenishment, the fresh replenishment was mostly finished and so it was more likely that Roxy moved straight onto grocery replenishment for the remainder of her shift.” Case Numbers: 3304495/2018 & others 32

[79]In paragraph 126(b) on page 18 of that application, the respondent invited us to make a finding that “PPE was provided for work in the freezer”. We were of the view that the position was clear from C7/217/1, where this was said: “Always wear your protective clothing in accordance with your training: - high-visibility vest or jacket if assisting with a delivery; - safety shoes if also taking off cages from the tail lift; - freezer jackets and gloves in the freezer.”

[80]We did not refer to that document in our second reserved judgment, but we did not understand it to be disputed that Ms Garrod was provided with PPE, although she may not have used it. In any event, we concluded that it was available to her, or if it was not then it should have been and the demands on her of going into the freezer are to be assessed in the light of the facts that(1) she was not required to go into the freezer without PPE, and

(2) such PPE was in fact provided for her use. For the avoidance of doubt, we have made findings of fact in relation to the wearing by Ms Garrod (and any other customer assistant employed by the respondent whose work involved going into a freezer) of freezer gloves in paragraphs 70 and 162 of appendix 6 on pages 186 and 201 respectively below. Comparators Submission 1: AMC voice guidance

[81]This submission started (in paragraph 127 on page 19 of the respondent’s application for reconsideration): “At paragraph 9, page 387, appendix 8 of the Judgment, the Tribunal made reference to D9/265 and D9/257 on AMC voice guidance but omitted to make any findings of fact in relation to how the AMC voice guidance worked.”

[82]This reminded us of the detail into which the parties (and in particular the respondent) had demanded that we went in our determinations in relation to the manner in which the AMC operated. That in turn reignited our doubt about the need to make specific findings of fact about the manner in which the AMC voice guidance operated. So did the fact that there were detailed manuals stating how the AMCs worked (complete copies of which were, however, only sent to us at our request as stated in paragraph 77 on pages 27-28 of our second reserved judgment), and that in them reference was made to voice commands.

[83]There was, however, a further reason for doubting that submission 1 on page 19 of the respondent’s application for reconsideration was valid. That was that the substance of, or we should say the factual assertions in, paragraphs 6.341-6.344 of the EVJD for Mr Pratt which related to the operation of the AMC voice guidance, were agreed by the parties. (There were disputes about those paragraphs, but they did not relate to the manner in which it was said by the respondent that the AMC voice guidance worked.) For all of those reasons, we could not see why we needed to do more than record that voice guidance was available and how it operated in Case Numbers: 3304495/2018 & others 33 general terms, which was what we had done, tying that finding of fact to the documents showing when it was introduced and how it operated in general terms (namely D9/265 and D9/257).

[84]Nevertheless, this was submitted in paragraph 132 on page 19 of the application for reconsideration: “The matter in issue is significant as it is likely to impact value as the requirement to listen to alpha numeric voice prompts may be relevant to a factor and, in particular, the requirement for concentration.”

[85]In our view, that was simply wrong. That was because the user of an AMC could choose to use the voice guidance, and if the guidance could not be heard then the user could read what was on the screen. There was therefore no requirement to use the voice guidance, and difficulty would be caused to the AMC user only if the user could not read. It was not suggested, nor could it reasonably be suggested, to us, that the AMCs were problematic because they communicated information and instructions via a screen, the user of which had to be able to read. Submission 2: Assembly: use of Pedestrian PPTs

[86]In paragraph 136 on page 20 of the respondent’s application for reconsideration, this was said in relation to what we had said in paragraph 13 on page 388 of our second reserved judgment and paragraph 571.1 on page 526 of that judgment. ‘When undertaking assembly, the comparators in Fresh DCs used Pedestrian PPTs. The comparators walked alongside the truck, they did not drive in the sense of sit on it. Training document “Know Your Stuff” Manual Handling Equipment: Pedestrian Powered Pallet Truck Training Pack, 20/02/2013 at D9/465/5 provides that “[F]or most tasks you will operate the truck by walking along side of it with forks trailing” (referenced at paragraph 114, page 421, appendix 8 of the Judgment).’

[87]Here, we agreed that we had made a mistake, which we took into account when stating the work of assembly in a fresh DC, as we do below in paragraphs 1 and 92 of appendix 11 below, on pages 246 and 262-263 below respectively. Submission 3: Comparator training documents

[88]The respondent put before us 13 documents which had not been in the bundle, and invited us to take them into account. (They were at pages 3-129 and 136-139 of the bundle of documents enclosed with the respondent’s application for reconsideration.) We found all but the final one of them to be relevant and helpful, and concluded (contrary to what the Harcus claimants submitted in paragraph 15 on page 4 of their response to the respondent’s application for reconsideration) that we should indeed take them into account. We have done that in the appendices below. We therefore say no more about them here except to say that for the reasons stated in paragraph Case Numbers: 3304495/2018 & others 34 262 below, the final document (at pages 136-139) added nothing to what we already had before us. Submission 4: Risk assessment document for assembly in Fresh DCs

[89]Similarly, this was submitted on page 23 of the respondent’s application for reconsideration. “143. The Tribunal is invited to reconsider paragraphs 108 to 110 [on pages 419-420 of our second reserved judgment] in respect of comparators undertaking assembly in fresh DCs on the basis that there is an equivalent, relevant document for assembly in Fresh DCs (TSC24642) which was disclosed but not included in the bundle of document. Document TSC24642 is a Manual Handling Risk Assessment for Fresh DCs – MHRA Ref. no. WA-06-Ver 2, “Assembling green trays from pallet to dolly”. Given that the Tribunal considered the content of D9/189, the Manual Handling Risk assessment document for ambient DCs to be relevant, the Respondent submits that it follows that Document TSC24642 is also relevant. It contains a description of the requirements of the activity of assembly, postural hazards and average weights. 144. It is submitted that this document should be shared with the IEs since the parties were not aware of the emphasis the Tribunal was to place on such documents until the promulgation of the Tribunal’s judgment dated 12 July 2023. The matter in issue is significant as it may impact value.”

[90]The document with the disclosure number TSC24642 was at pages 130-135 of the bundle of documents put before us by the respondent in support of its application for reconsideration (to which, unless otherwise stated, we refer below as “the bundle”). It was indeed highly informative and we agreed that it should be put before the IEs and taken into account by us. It was not only informative about the risks, but also a useful description by way of an overview of the work of assembly in a fresh DC, given that it said on its first page, as the “Operation description”: “Fresh Assembly is the process of lifting items of stock from pallets, carrying them a short distance and then stacking them into roll cages or onto dollies or merchandising units. An Assembler travels between roll cage store lanes by foot and uses mechanical handling equipment (a Powered Pedestrian Picking Truck – PPPT) to transport the pallet of product they are assembling from. Assembling green trays on dollies involves lifting trays, one at a time, carrying them a short distance and then stacking them onto a dolly, which is a plastic moulded wheeled base unit of delivery (UOD).”

[91]We emphasise that that was very much an oversimplification of the task of assembly in a fresh DC, given, among other things, that there was a need to follow the instructions on an AMC and to concentrate whenever the assembler did so, but nevertheless it was a helpful overview. A far more helpful overview was the training Case Numbers: 3304495/2018 & others 35 video at D9/181 entitled “PBL Assembly”. If we had been referred by either party to that video then we would not have made the mistake which we correct in paragraphs 86 and 87 above. Another very helpful video showing how assembly in a fresh DC had to be carried out safely was D9/513.

[92]In addition, the document at pages 130-135 of the bundle referred to the range of weights of products moved, including the maximum weight of a tray, all of which were stated in a document which was not created for the purposes of these proceedings and which (as we say in paragraph 110 on page 420 of our second reserved judgment) were therefore most likely to be reliable evidence about such things. We therefore took into account those weights in our determinations in paragraphs 56 and 102.15 of appendix 11 below (at pages 254-255 and 267 respectively below) of the work of a loader and of an assembler in a fresh DC. Submission 5: Strapping cages on LLOPs and changes over time

[93]This submission related to what we said in paragraph 211 on pages 441-442 of our second reserved judgment, which was that we could not see why the parties were disputing the content of paragraph 3.3 of the EVJD for Mr Jones because we could not see how the resolution of the dispute could affect the assessment of the demands of the work in question. The submission was to the effect that we had failed to take into account the factors referred to in paragraph 149 on page 24 of the respondent’s application for reconsideration, which were as follows: “(a) there were particular considerations for the comparators when mounting slim line cages onto LLOPs (see the SSOW for PBS Assembly (Slim Line Cage DCs) at D5/3/5); (b) red-based slim line cages were unstable and were liable to topple due to their narrower size and wheel design; and (c) stacking products into cages was more difficult when assembling into redbased slim line cages, given these cages were narrower. This meant that the practical difficulties of having to stack units of different shapes, sizes and weights were exacerbated.”

[94]We accepted that those factors were relevant least to some extent, and that we had therefore failed to take account of a relevant factor. Helpfully, by way of a resolution of the difficulty, we were invited to accept the following words proposed by the claimants, which the respondent was prepared to agree to. “To undertake Assembly, the job holder used an Assembly Truck (a LLOP with rear-facing forks) (Photo G3) measuring 3.6m in length and on which up to a maximum of 3 ‘standard’ and up to 5 Slim Line Cages (from 2014 to 2017) and up to 4 Slim Line Cages (from 2017) could be transported.”

[95]We accepted that invitation, and therefore we accepted those words to describe the different sized cages used over the relevant period. In fact, paragraph 3.3 of the Case Numbers: 3304495/2018 & others 36 EVJD for Mr Jones was either best seen as a summary or a statement made out of context and better seen in context. That context was what was described in paragraphs 6.52 to 6.54 of the EVJD for Mr Jones. We state our findings of fact on those paragraphs and related matters in paragraphs 42 and 43 of appendix 7 on pages 211-212 below. Submission 6: Positioning cages next to an Assembly Truck

[96]This submission related to our finding that the content of paragraphs 6.65 and 6.66 of the EVJD for Mr Jones was “not an accurate statement of the way in which the respondent wanted its assemblers to work”.

[97]This submission was about the same thing to which submission 7 related, to which, for convenience, we now turn. Submission 7: Mounting cages on LLOP forks

[98]This submission concerned our finding stated in paragraph 224 on pages 444-445 of our second reserved judgment that an assembler was not required as part of his work to tilt a cage backwards and manoeuvre it onto the forks of a loading truck by hand. The submission was that we had failed to take into account a relevant part of the training materials. Our attention was drawn in that regard to what was shown 2 minutes and 19 seconds into (i.e. after the start of) the training video at D9/187. That was “a warehouse operative ... manually placing cages on LLOP forks and tilting it with their foot exactly as described in the EVJD and the witness evidence”.

[99]We looked at that part of that video. We accepted that it showed that we were wrong in thinking that there was no need to manoeuvre cages onto the forks of a LLOP. There was such a need. Indeed, the need was made clear by the fact that the cages only just fitted onto the forks. That in itself was understandable, since it would make them more stable than if they could in practice move laterally when on the move. We incorporate this finding on reconsideration in paragraph 44 of appendix 7 on page 212 below.

[100]Arriving at that finding made us reconsider our conclusions stated in paragraphs 283- 303 on pages 458-464 of our second reserved judgment (even though the respondent had not asked us to reconsider those conclusions). In doing so, we could see that if an LLOP was in real danger of running out of battery power mid-round and the driver of it had as a result to take it to the battery bay, then the insertion of the forks of a replacement LLOP (or the same one with a fully-charged battery) might knock the wheels of a cage and that that might make it less easy to pick the cage back up on the forks. However, we could still not see how it could have been either necessary or safe to tilt the cage in order to get it onto the forks: rather, the only thing which might need to be done would be to nudge the wheels back into place. In any event, our conclusion that the assembler’s work involved paying attention to the battery charge indicator on the LLOP and that it was not part of the work of an Case Numbers: 3304495/2018 & others 37 assembler for the purposes of section 65(6) of the EqA 2010 to permit the charge to run so low that the LLOP needed to have its battery changed mid-round, was unaffected. It was also in our view, on reconsideration, still plainly right. Submission 8: Investigating unavailable stock

[101]This submission related to what we said in paragraph 259 on page 453 of our second reserved judgment, which concerned paragraphs 6.140 and 6.165 of the EVJD for Mr Jones. We concluded in paragraph 259 that those paragraphs of the EVJD were about the need to count stock accurately. Submission 8 was stated in paragraph 169 on page 27 of the respondent’s application for reconsideration, and was this. “Paragraph 6.165 of Mr Jones’ EVJD concerned the requirement for comparators to investigate unavailable stock carefully before selecting P1 on the AMC which would deploy a FLT driver to replenish the pallet. That paragraph was not about counting available stock.”

[102]Reference was not made there to the documents at pages 14-29 of the bundle where, at pages 18 and 19 there were clear instructions on what the assembler had to do if stock was unavailable. Those instructions covered the situation, but that was unsurprising. In any event, we were of the view that the key thing was to count stock accurately and do what was required on the AMC. We have taken this issue into account when determining in appendix 7 below the work of an assembler in an ambient DC, which we did by reference to the work of Mr Jones. The relevant part of the work was stated in row 36 on D9/620/6. Our findings in that regard are stated in paragraphs 22, 56 and 57 of appendix 7 on pages 207 and 215 respectively below. Submission 9: Weights of units and cages handled by comparators

[103]This submission related to what we said in paragraph 272 on page 456 of our second reserved judgment, which was that the weights of fully-laden cages were irrelevant “given that the cages were carried around on the forks of a LLOP, and were not pushed around by an assembler”. In paragraphs 177-179 of the respondent’s application for reconsideration, this was said. “177. The physical demands which arose from this work are relevant. Indeed, the Tribunal made findings in relation to the average weight of units of product in paragraph 110, page 420, appendix 8 of the Judgment: 6.5 kg and < 1kg to 25 kg.178. However, the comparators’ work was not simply to pick up and transfer individual units but to pick up and transfer multiple such units repeatedly over a period of time. In order to assess the demands of their work, the IEs need to know approximately how many such units the comparators handled and the overall weights involved. Moreover, the weight of a fullyladen cage is relevant not only because it illustrates the demands involved in assembling such a cage but also because the comparators sometimes had to manoeuvre such cages in any event. Case Numbers: 3304495/2018 & others 38

179. For this reason, the facts set out in paragraphs 6.212-4 and 6.229 of Mr Jones’s EVJD and the equivalent paragraphs in other comparators’ EVJD were relevant to an assessment of the demands of their work.”

[104]We agreed, but only in relation to the movement of products, and even then we were dubious about the value of findings about specific weights. We were still, on reconsideration, unable to see circumstances in which an assembler would need to manouevre cages. That is for the reasons stated in response to submission 10, to which we turn immediately below. Submission 10: Manual manoeuvring of cages in loading bays

[105]Submission 10 was most pertinently stated in paragraph 191 on page 30 of the respondent’s application for reconsideration, which was in these terms. ‘That assemblers had to manually handle cages in loading bays on occasion was evidenced by:(i) Mr Pilley at paragraph 199 of his witness statement: “Operatives carefully removed the forks of their Assembly Trucks from beneath the Cages. Operatives may also have had to manually push and manoeuvre them into safe position in the Bay” (E4/13/33); and

(ii) Mr Evans at paragraph 269 of his witness statement: “In some cases, Ernie had to manually push, and manoeuvre those Cages into a safe position within the Bay or Bays, ready for Loading” (E4/5/36).’

[106]Six minutes 17 seconds into the video at D9/187 showing how assembly was done in an ambient DC, there was a section about dropping the cages off at the loading bay. That showed the assembler backing her LLOP into a lined lane on the bay, lowering the forks and driving off, with there being no need to move the cages, and with them being lowered without any friction or resistance straight to the floor. That rather undermined the respondent’s witness statement evidence relied on by the respondent in the paragraph that we have just quoted. In those circumstances, we had great difficulty seeing on what proper basis we could change our original conclusion in this regard. The witness statement evidence of the respondent did not say when it might be necessary to “manually push, and manoeuvre those Cages into a safe position within the Bay or Bays, ready for Loading”, and we could not envisage any circumstances in which that might be so. The problem here from the point of view of fairness was that the respondent’s witnesses were not cross-examined on this. As a result, we will, if the respondent requests it and subject to submissions made by the claimants in response, be willing to reconsider this aspect of the matter if the respondent puts before us further witness statement evidence stating in what circumstances it might be necessary to move cages which have been dropped off by an assembler at the loading bay. In the meantime, we did not vary our original conclusion in this regard. Submission 11: Exercising judgement when dropping off multi-store order cages Case Numbers: 3304495/2018 & others 39

[107]This submission was to the effect that we had failed to take into account in arriving at the conclusion stated in paragraph 278 on page 457 of our second reserved judgement that when dropping off cages of a multi-store delivery (that is to say, after completing a round of assembly where the cages were going to different stores), it was necessary to exercise judgment in doing so. That submission was supported by reference to the fact that this was said in column 6 of D5/3/11 (and D9/193): “When dropping off multi-store order cages, the yellow line markings on the LLOP forks (see picture below) should be used by the Assembler to help judge how far back to withdraw the forks before raising them and thereby only relifting the cages that need to be taken to a different bay without clipping the lowered cages that have been dropped off.”

[108]What we said in paragraph 278 was not inconsistent with that. We thought that we had in fact said enough there to make it clear that we accepted that there was a need to take that passage into account. For convenience, we point out that our conclusion was that “The need to withdraw fully and carefully the forks of a LLOP from under the cages which it had been carrying and were now deposited, was obvious. It was in any event stated in the SSOWs at D5/3/5, D5/3/11 and D9/193.” Submission 12: Manually detaching straps from cages

[109]The nub of submission 12, which related to our conclusion stated in paragraph 279 on page 457 of our second reserved judgment, was that (as it was said in paragraph 206 on page 31 of the respondent’s application for reconsideration) we should “confirm that when assembling using back-based dolly sized slim line cages, the comparator manually detached the straps from the third and fourth cages”. That was based in part on the fact that the Leigh Day claimants had, in row 1388 of their written closing submissions, agreed that “The job holder manually detached the straps from the third and fourth Cages.”

[110]We found to be more helpful the submission in paragraph 204 on page 31 of the respondent’s application for reconsideration, which was that while we had relied on D9/193, which was dated 13/8/15, “In 2015, the LLOP carried five red-based slim line cages, and so, when the SSOW referred to the fourth and fifth cages, it was referring to the penultimate and ultimate cages on the LLOP. From circa 2017 there were only four dolly sized cages on the LLOP, and so the penultimate and ultimate cages were the third and fourth cages.”

[111]The Leigh Day claimants’ response to this submission was in paragraph 29 of their response to the respondent’s application for reconsideration, and it was that the Leigh Day claimants were “neutral” on the issue, and had “no objection” to the wording “The job holder manually detached the straps from the third and fourth Cages.” Case Numbers: 3304495/2018 & others 40

[112]In those circumstances, we concluded that we should have decided as an additional matter of fact that if an assembler had four dolly sized cages on the forks of his LLOP then he was required to detach manually the straps from the final two cages. Submission 13: Working conditions - temperatures

[113]We accepted that we should, in determining the working conditions of both the sample claimants and their comparators, take into account the fact that they had to work in either hot or cold conditions, and that DCs tended to be cold inside if the weather was cold outside, and hot inside if the weather was hot outside. We also accepted that, as it was said in paragraph 212(b) on page 33 of the respondent’s application for reconsideration, “in the summer, the hot conditions were worsened by having to work in the rear of enclosed trailers, as the materials they were made of (metal (and canvas on curtain sided trailers)) radiated heat, causing excessively high temperatures in hot weather and offering no insulation against cold and freezing outside temperatures in the winter”.

[114]Those factors are taken into account in the appendices below relating to the ambient DC comparators. That is done by what we say in paragraph 38 of appendix 7 on pages 210-211 below. Submission 14: Clarifications in relation to ambient loading when the floor was wet

[115]We saw no reason to change what we had decided in paragraphs 364-397 on pages 477-486 of our second reserved judgment. Submission 14 on pages 33-34 of the respondent’s application for reconsideration was no more than an attempt to re-argue its case on the question whether it was part of the work of a loader to load UODs in the wet. We have in any event addressed this issue very carefully (again) in a number of places in the appendices below:(1) paragraphs 21 and 22 of appendix 8 on pages 226-227 below,

(2) paragraphs 36, 78 and 119 of appendix 11 on pages 250, 258 and 270 respectively below,

(3) paragraphs 2 and 28 of appendix 12 on pages 273 and 278 respectively below, and

(4) paragraph 10 of appendix 14 on page 300 below. Submission 15: The application of mental maths

[116]In paragraph 222 on page 34 of the respondent’s application for reconsideration, in support of the proposition that we had erred in concluding (in paragraph 460 on page 501 of our second reserved judgment) that there was no need for the use by a loader of “mental mathematics”, this was said. ‘There was no evidence before the Tribunal that the Respondent’s computer system planned how the particular UODs were to be laid out in the trailers. Indeed, it is accepted by the Tribunal at paragraph 432, page 494, appendix 8 of the Judgment that “there was a need to plan the positioning of UODs on the Case Numbers: 3304495/2018 & others 41 trailer onto which they were to be loaded.” Further, in paragraph 460, page 501, appendix 8 of the Judgment, the Tribunal say the comparators had to “work out what went where” and in paragraph 468.1 that “there was a need to think about the order in which to place the UODs which the loader’s AMC told him had to be put on a trailer.”’

[117]We concluded on reflection that this submission was in part justified in that there was a need to use what was best described as “mental arithmetic” in planning the load (and as can be seen, we accepted there to be a need for such planning) rather than “mental mathematics” (which in our view was in danger of overstating the position; it struck us on reconsideration that the respondent itself had used the term “mental arithmetic” in paragraph 6.120 of the EVJD for Pratt in relation to planning the load). We have accordingly allowed for that in paragraph 41 of appendix 8 on page 230 below. Having said that, we should say that we had not thought that we had said that we had decided that the respondent’s computer system “planned how the particular UODs were to be laid out in the trailers”. We also thought that it was clear by implication if nothing else from the fact that we concluded that the loader would have to “work out what went where”, that we had accepted that the respondent’s computer system did not state where UODs should be placed on trailers. Submission 16: Loading a 12 or 13 metre trailer

[118]We could not accept that what we said in paragraphs 432-439 on pages 494-496 of our second reserved judgment about “load planning” was in any way wrong or lacking. Submission 17: Instructions in relation to multi-store loading

[119]We have already (in paragraph 117 above) made it clear that we did not decide, and we did not think that we had given good reason to think that we had decided, that, as stated in paragraph 237 on page 36 of the respondent’s reconsideration application, “loaders were told the order to load individual UODs via instructions provided by their AMC”. Submission 18: Stacking (assembly versus loading)

[120]We did not see any justification for changing what we said in paragraph 485 on page 507 of our second reserved judgment, which related to what was required of a loader when restacking a cage. However, on reconsideration, we have specifically determined whether paragraphs 6.184-6.187 and 6.192 and 6.194 of the EVJD for Mr Hornak are applicable. (Paragraph 6.193 of that EVJD was agreed by the parties not to be applicable.) We have done that in paragraphs 28 and 45 of appendix 8 on pages 228 and 231 respectively below. Submission 19: Breaking down of pallets in ambient DCs

[121]We were invited here to reconsider what we said in paragraph 487 on page 507 of our second reserved judgment about the breaking down of pallets by a loader (in this Case Numbers: 3304495/2018 & others 42 instance Mr Hornak) in an ambient DC as described in paragraphs 6.200-6.202 of the EVJD for Mr Hornak. In that paragraph, we referred back to what we had said about what the respondent called “breakdown packs” which, it was submitted to us, involved doing something different from the breaking down of a pallet by a loader in the circumstances described in paragraphs 6.200-6.202 of the EVJD for Mr Hornak.

[122]We had not made any determination in relation to the preceding paragraphs of the EVJD for Mr Hornak, i.e. paragraphs 6.196-6.199, but the submission made to us (in paragraph 249 on page 38 of the respondent’s application for reconsideration) was that we should122.1 “confirm that the agreed wording in paragraphs 6.196 to 6.199 of Mr Hornak’s EVJD has not been overruled”,

122.2 “clarify [our] determination of the dispute regarding paragraph 6.201 of Mr Hornak’s EVJD”, which was about how frequently there was a need for a loader to break down a pallet, and

122.3 “make a determination in respect of paragraphs 6.200 and 6.202 of Mr Hornak’s EVJD.”

[123]In the latter regard, the respondent said that it was prepared to “accept the Claimants’ version of” those paragraphs, namely as follows: “The job holder removed the shrink wrapping around the Pallet using a Safety Knife (Photo G40) before lifting and moving each of the individual Units by hand into the correct empty Cages, ensuring that all Units were stacked safely and securely within the Cages (see paragraph 6.437). The job holder then attached each of the UOD Labels onto the correct Cages ready for loading.” “When breaking down, the job holder lifted and moved individual Units to move them from the Pallet into multiple Cages. Depending on the weight and size of the Units, each Pallet could take between 15 and 60 minutes to Breakdown.”

[124]On reconsideration, we accepted that we might have misunderstood the position to which we referred in paragraph 487 on page 507 of our second reserved judgment. However, as we said in paragraph 491 on page 508 of that judgment, we were “obliged to conclude that [breaking down pallets as part of the loading process] was part of the loading process”. Accordingly, as must have been clear, we did not therefore “overrule” paragraphs 6.196-6.199 of the EVJD for Mr Hornak. In any event, for the reasons which we have stated principally in paragraphs 40-48 above, our task was not to decide whether or not to “overrule” anything in any EVJD. Rather, it was to decide what was the work of the sample claimants and their comparators and the relevant conditions in which it was done, and, as we say in paragraph 38 above, the EVJDs that we had before us had been used in effect as pleadings about(a) facts, and

(b) their relevance. As a result, there was no question of it being necessary to “overrule” them. Rather, it was necessary for us to decide (1) where there was a disputed part in them, whether what was asserted in the EVJD was correct as a Case Numbers: 3304495/2018 & others 43 matter of fact and relevant, and (2) if something was stated in one of them to have been agreed, whether it was relevant and therefore a fact which the IEs and we could take into account in assessing the demands and therefore the value of the work of the jobholder in question.

[125]As it happens, on reconsideration we decided that we should have stated a conclusion on the proposition that the work of a loader involved breaking down a pallet approximately 1-3 times per shift. The claimants said that that was not a reliable statistic given what Mr Macko had said on day 22, which was at pages 84-88 of the transcript for that day. At the end of that passage (in which Mr Macko was cross-examined by Mr Jones KC), Mr Macko said this (in lines 10-13 on page 88): “I don’t know if I can be more specific because there was a whole week when I would not receive a load that needed a breakdown, but other times when I received a load like that, I would do the breakdown.”

[126]That rather suggested that the frequency was much less than 1-3 times per shift. It might be once a week on average, but it might not occur even that frequently. However, we concluded that the best estimate was once a week and that that conclusion should be applied in relation to the work of loading. We have recorded that conclusion in paragraph 29 of appendix 8 on page 229 below. Submission 20: Handling UODs in ambient DCs

[127]Submission 20 concerned what we said in paragraph 501 on page 510 of our second reserved judgment about paragraph 6.218 of the EVJD for Mr Hornak. In paragraphs 252-253 on page 48 of the respondent’s application for reconsideration, this was said. “252. When removing UODs from the bay for loading, the comparator chooses appropriate UODs from those assembled in the bay as necessary to ensure that load layout and weight distribution in the trailer are safe and to maximise trailer capacity. They might therefore need to be moved and positioned by hand. In any event, UODs are not neatly aligned when deposited. 253. Accordingly, loaders do not simply pick lines of UODs up with the loading truck forks. The selected UODs are positioned by hand by loaders before the forks of the loading truck are inserted beneath them.”

[128]We accepted that submission, both because on reconsideration it made sense to us and because of the part of the video at D9/525 from 7 minutes 30 seconds in (i.e. after the start of the video) to 7 minutes 47 seconds in showed that it was right. We therefore have incorporated paragraph 6.218 in our statement of Mr Hornak’s work (as stated in paragraph 53 of appendix 8 on page 232 below). Submission 21: Responsibility for swapping UODs Case Numbers: 3304495/2018 & others 44

[129]We did not, however, see any need to vary our decision on what was required of a loader who thought that a UOD should be put on another load. In our view what we said in paragraph 520 on page 515 of our second reserved judgment was entirely apt. It was always possible for a loader to suggest the swapping of a UOD, but it was in our judgment not a requirement of the respondent that he considered whether to do that. We record that conclusion in paragraph 104 of appendix 8 on page 240 below. Submission 22: Multi-store deliveries

[130]Paragraph 6.314 of the EVJD for Mr Hornak was in these terms. “Convenience Store deliveries were predominantly loaded onto 10 metre Trailers, although 8 metre Trailers may also have been used. The AMC identified for the job holder the order in which the deliveries were to be made, as this was something the job holder took into account (subject to weight distribution issues) when loading those Trailers (see paragraphs 6.172 to 6.175).”

[131]Because we had made extensive findings of fact in paragraphs 475-478 on pages 504-506 of our second reserved judgment about what was in paragraphs 6.172- 6.175 of the EVJD for Mr Hornak, to which paragraph 6.314 referred back, we saw no need to make any findings of fact about the very much shorter paragraph 6.314 which h was in reality a repeat of what was in paragraphs 6.172-6.175. We stated that in paragraph 533 on page 518 of our second reserved judgment. On reconsideration, we were of the same view. There was in paragraph 6.314 of the EVJD in addition to the factual material in paragraphs 6.172-6.175 of the EVJD only a reference to the size of the trailers loaded. However, that was, we originally thought, incapable of affecting the value of the work done by a loader. The respondent in submission 22 repeated its submissions made in paragraphs 236-241 of its application for reconsideration (probably meaning instead to refer to paragraphs 232-237), which related to what we had said in paragraphs 475 and 476 on pages 504-505 of our second reserved judgment. Those repeated submissions were submission 17, to which we respond in paragraph 119 on page 40 above, and they were to the effect that the AMC did not require that UODs were loaded in a specific order. The respondent then said (in paragraph 264 on page 40 of its application for reconsideration) that the “matter in issue is significant as it may affect value”, and in paragraph 265 (on the same page) invited us to accept its wording for paragraph 6.314.

[132]On reconsideration, we considered whether it was relevant that, as stated in paragraph 6.314 of the EVJD for Mr Hornak, “Convenience Store deliveries were predominantly loaded onto 10 metre Trailers, although 8 metre Trailers may also have been used”? We still could not see that it was. Submissions 17 and 22 were otherwise simple attempts to re-argue the respondent’s case. We therefore rejected submission 22. Submission 23: Loading UODs onto the lower deck Case Numbers: 3304495/2018 & others 45

[133]Submission 23 was an invitation to us to “clarify the finding [in paragraph 536 on pages 518-519 of our second reserved judgment] regarding the agreed part of paragraph 6.348 regarding loading UODs from the hydraulic lift into the lower deck”. The submission concluded with what was said in paragraph 269 on page 40 of the application for reconsideration, which was as follows. “Given the agreement between the parties that the Pedestrian Pallet Truck was only used to load Pallets onto the lower deck, the Tribunal is invited to confirm that it is not overruling the agreed part of paragraph 6.348 of the EVJD for Mr Hornak.”

[134]We could see no justification for the request to clarify what we had said in paragraph 536 on pages 518-519 of our second reserved judgment, which in our view was both clear and apt. However, on reconsideration, we have in paragraph 111 of appendix 8 on page 241 below made a finding on paragraph 6.348 of the EVJD for Mr Hornak. Submission 24: Requirement to remain alert while using an Assembly Truck

[135]Submission 24 was based on the proposition that we had failed to “record a factual finding on the dispute between the parties in respect of paragraph 6.42 of Mr Jones’ EVJD and the identical paragraphs in the EVJDs of other comparators”. That was said in paragraph 270 on page 41 of the respondent’s application for reconsideration.

[136]Paragraph 6.42 of the EVJD for Mr Jones was in these terms. “Whilst using his Assembly Truck the job holder at all times remained alert to any visual signs or smells which may have indicated faults arising from damage to its functioning, whether internal to its operation or arising from detritus from the floor being caught in moving parts e.g., burning smells.”

[137]That was opposed by the claimants on this basis: “Factual dispute, exaggerated; also evaluation/analysis.”

[138]In referring to the work of an assembler who was using what the respondent called an Assembly Truck (which was in fact a LLOP: see what we said in paragraph 209 on page 441 of our second reserved judgment), we referred (in paragraph 117 on page 422 of our second reserved judgment) to D9/476. That document stated in full the requirements of a user of the LLOP, which included at D9/476/4 the pre-use checks which needed to be carried out. In order to illustrate why we initially concluded that paragraph 6.42 said nothing material, we now set out the relevant passage on D9/476/4: “Before using MHE you should check for and ask yourself the following questions: Case Numbers: 3304495/2018 & others 46• Overall condition - Is there any serious damage? Are any of the internal workings exposed? Turn the key. Is the tiller arm/jet pilot steering wheel, control handle and all its controls working properly?

• Battery condition - Open the hood. Are the batteries connected properly? Is it securely clamped? Is there sufficient charge shown on the battery gauge?

• Hydraulics - Look around the equipment. Are there any spillages underneath. Test the forks by raising and lowering them.

• Horn - Make sure this is audible - test by giving two short blasts.

• Load Lifting Forks - Are there any cracks? Are the forks properly aligned?

• Wheels - Inspect the fixed wheels for damage, for example, chunks missing or debris embedded in them. Move the equipment slightly forwards and backwards to ensure the drive wheel, supporting wheels and fork wheels are all moving smoothly.

• Brakes - Move and release the forward and reverse controllers to see if the equipment comes to a controlled stop in both directions.”

[139]It was in our view obvious from that passage, if not the result of common sense, that the user of a LLOP would have to remain alert to the possibility of damage arising in the course of using the LLOP. In any event, we did not originally see a need to come to a specific conclusion on the need to remain alert to that possibility. As a result, we had come to the conclusion that we did not need to make a specific finding on what was in paragraph 6.42 of the EVJD for Mr Jones. Did we need to go further and make such a finding? If the issue was the risk of damage caused to property or persons by the use of a damaged LLOP, or the risk of financial loss being caused to the respondent by failing to notice that the LLOP’s components were about to be damaged, then that was itself covered by the consideration that the driver of a LLOP was responsible for the use of the LLOP. On that basis, there was no need to incorporate paragraph 6.42 in our findings of fact about the work of an assembler in an ambient DC such as Mr Jones, and there was a need to avoid the possibility of double-counting. We do, however, look further at the potential impact of paragraph 6.42 of the EVJD for Mr Jones (which was in the same terms as paragraph 6.29 of the EVJDs for Mr Hornak, Mr Macko and Mr Davis) in paragraph 15 of appendix 7, on page 206 below.

[140]In addition, we concluded that we should make a firm decision that the value of the MHE used by the comparators was relevant, and accordingly for example in paragraph 18 of appendix 7 on page 206 below, we refer to the value of a LLOP. We also concluded that it was implicit that a LLOP could be damaged by a failure to carry out the required pre-use checks and that such a failure might lead to damage to other things (including stock) or persons (i.e. colleagues), so that we did not need to say that expressly in the appendices below on the basis that those things were so obvious that they would necessarily be taken into account by us and the IEs when Case Numbers: 3304495/2018 & others 47 assessing the demands of the work of the comparators. For the avoidance of doubt, however, we now state that those factors are relevant to the work of all of the comparators who used MHE (which we understood to be all of them, although the MHE used and the proportion of the comparator’s time spent using it differed).

[141]We turn now to the submissions of the respondent made in its application for reconsideration in relation to our conclusions concerning the work of individual comparators. Mr Pratt Submission 1: Loading work during the Relevant Period

[142]The respondent’s submission here was that we had not “resolved the disputes regarding paragraphs 3.2-3.4 of Mr Pratt’s EVJD”. Since those paragraphs consisted of a potted history of Mr Pratt’s employment before and during the relevant period, we did not find it to be either necessary or helpful to address the disputes about those paragraphs.

[143]We saw that in paragraph 278 on page 41 of the respondent’s application for consideration, in support of submission 1 in relation to the work of Mr Pratt, this was said. “Submissions were made about the JH’s deployment over the Relevant Period in paragraphs 13-17 of the closing submissions for the JH.”

[144]As an aside, we understood that submissions were not made “for the JH” but for the respondent in support of its contentions relating to the work of “the JH”, i.e. Mr Pratt.

[145]In any event, what we now see we did not do is address expressly the question whether or not the document at G94.5 (as with other references to documents with only one page, we do not refer here to the page number of that document) was an accurate statement of the work of Mr Pratt as done over the relevant period. However, that was because we understood the content of the document to be agreed because it was used by the claimants in preparing the chart at D1/7.1 to which the respondent referred in paragraph 282 on page 42 of its application for reconsideration.

[146]For the avoidance of doubt, for the reasons stated in paragraph 332 below, we found the documents at G94.1-G94.8 to be helpful statements made by the respondent of the working patterns over the relevant period of the comparators which the claimants accepted, and we therefore incorporate those documents in the relevant appendices below.

[147]We did in fact have some difficulty seeing to what extent the parties disagreed about the actual deployment of Mr Pratt in 2012-2014. We now record that we accepted the evidence of the respondent about him not being in fact deployed on loading before August 2013, and that he could, at least theoretically, have been so deployed during Case Numbers: 3304495/2018 & others 48 that period. (We record that formally via paragraph 2 of appendix 11 on page 246 below.) The relevance, or alternatively the weight, of that fact in assessing the demands of his work for the purposes of section 65(6) of the EqA 2010 is another question. Submission 2: Dealing with a mix of UOD types

[148]To the neutral observer, the proposition that we needed to make a decision about the content of paragraph 6.101 of the EVJD for Mr Pratt might well have been surprising. The words of that paragraph as proposed by the respondent by the time of closing submissions were these. “Loads were rarely comprised solely of Cages; instead, most loads included at least Cages and Dollies. With large store loads, there would usually be at least one MU and during seasonal periods such as Christmas, Easter, Halloween, Mother’s Day and Valentine’s Day, most loads would also include Danish Trollies and pallets. Each of those different types of UODs were of different shapes and sizes and could vary significantly in weight.”

[149]The Harcus claimants submitted that those words were an exaggeration. They proposed that those words were either deleted on the basis that they were unnecessary given the content of paragraph 6.100 of the EVJD for Mr Pratt as proposed by the claimants (“99% of the UODs loaded by the job holder were cages and dollies. There was also the occasional MU for large stores, and very occasional Danish trolley and/or pallet during seasonal periods such as Christmas, Easter and Valentine’s Day.”), or that the respondent’s proposed words for paragraph 6.101 were replaced with the following words. “Different types of UOD were different sizes and could vary in weight, but the vast majority were what the Respondent categorises as ‘light’.”

[150]As we say in paragraph 12 of appendix 8 on pages 224-225 below in relation to the work of Mr Hornak, we understood the IEs to be concerned not with the typical weight of a UOD but its maximum weight. In any event, as far as we are concerned, the maximum weight of a UOD will be a relevant factor in assessing the demands of the work of the claimants and their comparators. In paragraph 6.123 of the EVJD for Mr Pratt, this was said. ‘Individual Cages could each weigh up to (or on rare occasions, more than) 500kg, e.g., a full Cage of butter or fats contained multiple Units each weighing 25kg. Each delivery included a mix of “light” (defined by Tesco as up to 223kg) and “medium” (up to 399kg), as well as “heavy” Cages.’

[151]That paragraph was opposed in its entirety by the Harcus claimants on the basis that it was an exaggeration and that there was a lack of reliable evidence to support it. We did not in our second reserved judgment determine that dispute because we did not see a need to do so. In the course of considering submission 2 in relation to Mr Pratt’s work, we could now see that we needed to make a finding at least about the Case Numbers: 3304495/2018 & others 49 maximum weight of a cage. We also concluded that we and the IEs needed to know whether the weights of UODs in a fresh DC were typically lower than those in an ambient DC, if only by way of comparison and for the purpose of understanding the factual background properly.

[152]The Harcus claimants relied in objecting to the content of paragraph 6.123 of the EVJD for Mr Pratt on what Mr Bates said as recorded on pages 182-183 of the transcript of day 26. In that passage, Mr Bates acknowledged that if the figures quoted to him there (which included that the average weight of a UOD at Hinckley was 149kg) were accurate, then it was ‘extremely unlikely that there would be a large number of what Tesco would define as “heavy cages” being sent out by ... Hinckley’.

[153]On 4 July 2023, the respondent wrote to us the letter at G382. In paragraph 5 on page 9 of that letter, reference was made to the document at G351.2 and it was said that the average weight of a UOD at Hinckley DC was 149kg.

[154]We saw that at D9/218 there was a “Health and Safety Risk Assessment” for “Goods Out: Dekit & Loading”. It appeared to relate to an ambient DC, but we thought that the following words in the fourth column of row 6 on page 2 had to be applicable generally: “The maximum load in a roll cage is set at 500kg (375kg for dolly sized cages). Grocery/GMEC cages have UOD labels affixed to them by the Assembler categorising the cage as light, medium or heavy. The warehouse management system calculates the weight and cubic dimensions of each case assembled to ensure it is neither too heavy nor that products cannot fit in the cage.”

[155]Given those factors, we concluded that paragraph 6.10 1 of the EVJD for Mr Pratt was too general to be of any real use to the IEs or us, but that it had some value as a general statement. What was more important was what was in paragraph 6.123 of the EVJD for Pratt, read with what we say in the preceding four paragraphs above. At this stage, we concluded that it was the maximum weight of a UOD which was of most evidential weight and that we could come to a reliable conclusion in that regard. As for the average weight, we were unable on the evidence before us to come to a reliable conclusion, but in any event we doubted the relevance of the average weight. What we say here is the basis for our conclusion on the average weight of a tray stated in paragraph 56 of appendix 11 on page 254 below. Submission 3: Loading responsibilities

[156]In paragraph 291 on page 43 of the respondent’s application for reconsideration, the respondent observed (accurately) that we had “omitted to make a determination on the disputes identified at paragraph 6.99 of the JH’s EVJD.” That omission was deliberate. The dispute maintained in relation paragraph 6.99 was one of the disputes to which paragraph 54 on page 21 of our second reserved judgment applied. In any event, we have in appendix 11 below stated our conclusions on the work of loading in a fresh DC (as done by Mr Pratt) and in paragraph 51 of that appendix on page 253 below we state expressly that we accept as a statement of a Case Numbers: 3304495/2018 & others 50 relevant fact what the claimants proposed for paragraph 6.99 of the EVJD for Mr Pratt. Submission 4: Requirement to lift trays at or above head height

[157]Submission 4 was not based on any new evidence. It amounted to an argument based on what we had decided in relation to two of the sample claimants. It ignored what we said in paragraph 99 on pages 275-276 of our second reserved judgment about Ms Thompson’s work.

[158]In fact, we thought that we had resolved the dispute by referring to D8/9 in paragraph 67 on page 404 of our second reserved judgment. That document showed to what height a tray might need to be put on a dolly, which was plainly above head-height for the person pictured in that one-page document.

[159]In any event, we had difficulty understanding why submission 4 was made. In paragraph 308 on page 45 of the respondent’s application for reconsideration, we were “invited to find that the Respondent’s description of what the JH had to do when handling trays and when condensing and checking stacks of trays in paragraphs 6.224 and 6.225 of Mr Pratt’s EVJD, including the frequencies provided for in those paragraphs, should form part of the agreed facts.”

[160]The Harcus claimants did not dispute the frequency of “around 5 times on each loading shift”. They did object to the use of the word “multiple” in this sentence. “When condensing, the job holder lifted multiple Trays between Dollies around 5 times on each loading shift, of which one or two were placed at or above head height.”

[161]The Harcus claimants also proposed some slightly different words for the frequency at which trays were placed at or above head height. What they proposed as alternative wording was this. “When condensing, the job holder lifted Trays between Dollies around 5 times on each loading shift, but he did not usually place any at or above head height.”

[162]On reconsideration, we concluded that what we said in paragraph 582 on page 528 of our second reserved judgment, where we resolved this particular dispute by accepting those words (which we did in the light of D8/9, which applied via paragraph 67 on page 404 of our second reserved judgment), was (still) correct. Submission 4 in relation to Mr Pratt’s work was in our view as a result of our express resolution of the dispute (via paragraph 582 on page 528 of our second reserved judgment) no more than an attempt to re-argue a point for no good reason. We came to the same conclusion on a number of the rest of the submissions made in the respondent’s application for reconsideration, and for the sake of brevity, where that is so, we have below merely said that and not stated such detailed reasons for that conclusion. We Case Numbers: 3304495/2018 & others 51 have in any event in all of our appendices below considered carefully what needed to be included as part of our new statements of the work of the sample claimants and their comparators, and in the course of doing so we have revisited what was said in the EVJDs and the disputes maintained in relation to them. What we say in paragraph 47 of appendix 11 on page 252 below relates to the dispute maintained in submission 4. Submission 5: Detail in relation to loading combinations of different UODs

[163]This submission was an attempt to re-argue a point for what was in our judgment no good reason. We have in fact incorporated paragraph 6.117 of the EVJD for Mr Pratt via paragraph 56 of appendix 11 on page 252 below, but only on the basis that it must be read with what we say in paragraphs 584 and 585 on page 529 of our second reserved judgment. Submission 6: Using MHE when transferring UODs to a loading bay

[164]This submission was an attempt to re-argue a point for what was in our judgment no good reason. We have confirmed the position in regard to paragraphs 6.162 and 6.163 of the EVJD for Mr Pratt in paragraph 44 of appendix 11 on pages 251-252 below. Submission 7: Taking care and acting safely

[165]The first part of this submission (stated in paragraphs 322-323 on page 47 of the respondent’s application for reconsideration; it was that we had “omitted to make a determination on the facts contained in paragraphs 6.171-6.175 of Mr Pratt’s EVJD, relating to the dimensions of a Danish Trolley and its precariousness”) was to an extent inapt, given that we had specifically referred in paragraph 599 on page 533 of our second reserved judgment to the fact that “driving around the Danish Trollies and flower buckets referred to in paragraphs 6.171-6.175 of the EVJD for [Mr Pratt] might have required even more skill and care than normal”. The only thing which we would now change in that sequence is to substitute the word “would” for “might”.

[166]The second part of the submission (stated in paragraph 327 on page 47 of the respondent’s application for reconsideration) was an invitation to “Clarify, for the avoidance of doubt, that paragraphs 746 to 748, pages 568 to 569, appendix 8 of the Judgment (in relation to Mr Todd) also apply to Mr Pratt”. Plainly, since we were focusing on the tasks done by the comparators, if we said something about a matter which was raised in relation to only one sample claimant or comparator but it was relevant to the doing of that task by another sample claimant or comparator, then that thing had to be taken into account as part of the work of both of them unless there was good reason to conclude otherwise. What we said in paragraphs 746-748 on pages 568-569 of our second reserved judgment obviously applied generally: the work of moving Danish trollies was not going to differ according to where it was done or by whom. As indicated in paragraph 52 above, for the sake of convenience and simplicity, we have in the appendices below stated in only one place the demands of a particular task wherever possible (which it would not be for example where the Case Numbers: 3304495/2018 & others 52 manner in which a task had to be carried out in an Express store differed from the manner in which it had to be carried out in a larger store). What we say in paragraphs 45 and 117 of appendix 11 on pages 252 and 270 respectively below states our specific conclusions on paragraphs 6.171-6.175 of the EVJD for Mr Pratt. Submission 8: Loading slim line cages

[167]It is said in paragraph 328 on page 48 of the respondent’s application for reconsideration that it appeared that in saying what we did in paragraph 601 on page 533 of our second reserved judgment, we had “not ... appreciated the difference between work in ambient and fresh DCs”. On reconsideration, we could see that there was a difference between assembling in an ambient DC with slim line cages on the forks of a LLOP and loading (in any DC) such cages. On reconsideration, we accepted that what we said at the end of paragraph 601 on page 533 of our second reserved judgment about mitigating the risk of a slim line cage toppling was not apt. We state our reconsidered conclusion on the subject-matter of submission 8 in paragraph 57 of appendix 11 on page 255 below. Submission 9: What happened if the truck started slipping

[168]Complaint is made under this heading that we should have made a finding on the factual assertions in paragraph 6.181 of the EVJD for Mr Pratt and the equivalent paragraphs in the EVJDs of Mr Hornak, Mr Macko and Mr Davis. In paragraph 339 on page 49 of the respondent’s application for reconsideration, this was said. “In particular, [the tribunal] is invited to make an express finding in relation to these paragraphs on the basis that they refer to a secondary assessment of the conditions of the trailer floor and/or the dock leveller; an assessment these comparators are required to continue doing as their load progresses.”

[169]We could see that the circumstances referred to in paragraph 6.181 were not precisely the same as those referred to in paragraph 6.78 of the EVJD (to which we referred back in paragraph 602 on page 534 of our second reserved judgment, which related to paragraph 6.181 of the EVJD for Mr Pratt), but the substance of both was the assertion that the loader would load cages by hand where the floor of a trailer and/or the dock leveller was wet. What we said in paragraphs 364-389 on pages 477-484 of our second reserved judgment was our conclusion on the question whether or not doing that was part of the work of a loader for the purposes of section 65(6) of the EqA 2010. We could not originally see that there was a need to address the situation in two places. Whether the knowledge that the floor and/or dock leveller were too wet for a loading truck to be used safely came about before or after the loader started loading seemed originally to us to be an irrelevant factor.

[170]On reconsideration, we could see that the loader would have to reverse the truck out of the trailer in order to do what was alleged in paragraph 6.181 of the EVJD for Mr Pratt. In our view therefore the two situations were truly comparable, since having taken the loader back out of the trailer, the loader was now in the same situation as Case Numbers: 3304495/2018 & others 53 that which was the subject of paragraph 6.78 of that EVJD. We deal with this issue specifically in paragraph 119 of appendix 11 on page 270 below. Submission 10: The impact of cold conditions

[171]This submission appeared to us to result from a failure to read properly what we said in paragraphs 604-605 on page 534 of our second reserved judgment. Given what we say in paragraphs 40-48 above, it should be clear that we are not giving directions to the IEs to consider the work of the sample claimants and their comparators by reference to the EVJDs prepared for the parties, so that there is no question of a problem arising from us having concluded, as asserted in paragraph 345 on page 50 of the respondent’s application for reconsideration, that “all descriptions of the impact of [working] conditions are removed from the EVJDs”.

[172]In fact, in paragraph 604 on page 534 of our second reserved judgment, we expressly approved the words of paragraph 6.185 of the EVJD for Mr Pratt. What was said in paragraph 343 of the respondent’s application for reconsideration was therefore inapt to the extent that it applied to paragraph 6.185 of that EVJD.

[173]In paragraph 346 of that application, this was said. “The Tribunal is invited to clarify its findings in relation to paragraph 6.186 and, in particular, clarify the impact and/or additional demands that would be placed on a person working in a fresh DC with chambers kept at the different (relatively low) temperatures referred to.”

[174]The “impact and/or additional demands” were plainly a matter for the IEs, and later us, to assess before and at the final hearing respectively. The factual finding that we made, as stated in paragraph 605 on page 534 of our second reserved judgment, was in our view entirely sufficient. Paragraph 81 of appendix 11 on page 260 below deals specifically with paragraph 6.185 of the EVJD for Mr Pratt. Submission 11: The internal lighting in the trailers

[175]This submission was an attempt to re-argue a point for what was in our judgment no good reason. Paragraph 82 of appendix 11 on pages 260-261 below deals specifically with paragraphs 6.187-6.190 of the EVJD for Mr Pratt. Submission 12: Tight tolerances in the trailer

[176]This submission was an attempt to re-argue a point for what was in our judgment no good reason. Paragraph 83 of appendix 11 on page 261 below deals specifically with paragraph 6.192 of the EVJD for Mr Pratt. Submission 13: Setting the temperature of compartments in a trailer

[177]The minutiae of setting the temperature in the compartments of a trailer are unlikely to affect the demands of a loader. Nevertheless, the respondent complained in Case Numbers: 3304495/2018 & others 54 submission 13 in relation to what we said in paragraph 619 on page 537 of our second reserved judgment in relation to the work of Mr Pratt that “Paragraph 6.216 of the JH’s EVJD refers to the setting of temperatures once a chamber within the trailer had been loaded and the bulkhead panels lowered. The reference at D9/393/3 does not deal with this and is not therefore an appropriate replacement for the wording at paragraph 6.216.”

[178]We could not understand that submission. D9/393/3 had this relevant passage on it. “Setting Trailer Temperatures After you have opened your trailer and carried out the relevant checks, should set each trailer compartment to +1 before loading begins. Each trailer compartment is then set to the correct temperature once it is loaded with the correct product and the bulkhead has been put in place.”

[179]The second sentence of those two dealt precisely with the “the setting of temperatures once a chamber within the trailer had been loaded and the bulkhead panels lowered”. Submission 13 was therefore inapt. We refer specifically to paragraph 6.216 of the EVJD for Mr Pratt in paragraph 64 of appendix 11 on page 256 below. Submission 14: Frequency of overspill

[180]Submission 14 was also inapt. It argued that we had failed to make a finding on the agreed part of paragraph 6.229 of the EVJD for Mr Pratt. The fact that we did not do so meant (for the reasons stated in paragraph 43 above) as far as we were concerned that that agreed part could be taken into account by the IEs if they regarded it as being relevant. In any event, we refer specifically to paragraph 6.229 of the EVJD in paragraph 65 of appendix 11 on page 256 below. Submission 15: Closing and sealing single deck trailers

[181]What we said in paragraphs 640-642 on page 542 of our second reserved judgment was addressed to the disputed parts of paragraphs 6.238-6.241 of the EVJD for Mr Pratt. Nothing said in paragraphs 375-379 on pages 53-54 of the respondent’s application for reconsideration undermined in any way what we said in paragraphs 640-642 on page 542 of our second reserved judgment, where, in fact, we thought that we had made it clear that we accepted paragraphs 6.238-6.241 of the EVJD for Mr Pratt, albeit on the basis that they had to be read with relevant parts of the training materials. Those paragraphs are dealt with in paragraph 76 of appendix 11 on page 258 below. Submission 16: Use of the AMC in loading multi-store deliveries

[182]This submission was an attempt to re-argue a point for what was in our judgment no good reason. Our conclusions in regard to the subject-matter of this submission and Case Numbers: 3304495/2018 & others 55 the next one, submission 17, are encapsulated in paragraph 66 of appendix 11 on page 256 below. Submission 17: Multi-store deliveries to more than two stores

[183]This submission was a complaint that we had not determined “matters that were agreed or largely agreed and that are liable to be taken into account by the IEs.” Those “matters” were “paragraphs 6.258, 6.259, 6.260, 6.261-6.263 and 6.267 of” the EVJD for Mr Pratt.

[184]The parties’ positions in submissions to us were that if something was agreed then it could be taken into account by the IEs without more unless it was opposed. Then, that is to say if it was opposed, there was a need for a determination by us, they said. As we say in paragraph 16 above, we ourselves worked on the basis (which we did not think we needed to state, as we thought that all were working this basis) that if we said nothing about an agreed factual assertion then it could be taken into account by the IEs if they found it to be relevant. On reconsideration, we reviewed the content of paragraphs 6.258-6.271 of the EVJD and came to the conclusions stated in paragraph 67 of appendix 11 on page 256 below. Submission 18: Loading double-deck trailers

[185]The respondent submitted in this regard in paragraph 389 on page 56 of its application for reconsideration: “At paragraphs 650-651, page 544, appendix 8 of the Judgment, the Tribunal omitted to make any determination on the disputes of fact identified in paragraphs 6.278-6.315 of the JH’s EVJD.”

[186]That seemed to us to have ignored the substance of what we said in paragraph 651 on page 544 of our second reserved judgment. On reconsideration, however, we have in paragraph 80 of appendix 11 on pages 259-260 below stated specific conclusions on paragraphs 6.278-6.315 of the EVJD for Mr Pratt. Submission 19: Physical effort involved in manoeuvring MHE

[187]Given what we say in paragraph 87 above, we reconsidered what we say in paragraph 657 on page 545 of our second reserved judgment. Our conclusion in that regard is stated in paragraph 93 of appendix 11 on page 263 below, where we deal specifically with paragraphs 6.337 and 6.338 of the EVJD for Mr Pratt. Submission 20: Relevance of working at night to working conditions

[188]This submission was an attempt to re-argue a point for what was in our judgment no good reason. It failed to take into account what we said in paragraph 80 on page 28 of our second reserved judgment. There is in our view no such thing as “night work”. Rather, if the task in question is carried out also during the day then it is work of the sort that is done during the day, but done at night. The fact that the task is carried out Case Numbers: 3304495/2018 & others 56 at night will almost certainly be relevant when applying section 69 of the EqA 2010, but that is another matter. Submission 21: Physical effort involved in operating Pedestrian PPTs and other MHE

[189]This submission related to what we said in paragraph 664 on page 547 of our second reserved judgment about the content of paragraph 6.345 of the EVJD for Mr Pratt. In paragraph 407 on page 58 of its application for reconsideration, the respondent said this. “The Respondent does not seek to reopen this Tribunal finding. However, perhaps by omission, the Tribunal’s finding does not address the physical effort involved in the JH manoeuvring the PPT or other MHE through the roller shutter door. That physical effort will be material to the IEs’ assessment. The Respondent invites the Tribunal to consider whether to accept the Respondent’s proposed wording, or at a minimum, the Claimants’.”

[190]When we wrote our second reserved judgment, we were not sure whether the respondent was maintaining its contention that an assembler had to guide a Pedestrian PPT through a pedestrian walkway, and in order to avoid any doubt in that regard, we reiterated in paragraph 664 on page 547 of our second reserved judgment our conclusion that the roller shutter door would have to be used. We did not say more because what we said in paragraph 54 on page 21 of our second reserved judgment applied here, in that the difference between the parties on the facts was in our view not going to affect the assessment of the demands of the work.

[191]When reconsidering this issue, we accepted that a loader in a fresh DC would not, as claimed by the respondent in paragraph 6.345 of the EVJD for Mr Pratt, “[pull] his empty Pedestrian PPT behind him”, as it was powered, so it did not need to be pulled. However, the Harcus claimants accepted that the Pedestrian PPT had to be controlled, which in our view said the same thing in substance as was asserted by the respondent in paragraph 6.345 of the EVJD. We have in paragraph 96 of appendix 11 on pages 263-264 below accepted what the respondent said in paragraph 6.345 of the EVJD for Mr Pratt, but with a number of reservations. Submission 22: Identifying and counting products

[192]Similarly, submission 22’s complaint that we did not “make any determination in relation to the dispute at paragraph 6.370 of Mr Pratt’s EVJD” failed to take into account what we said in paragraph 54 on page 21 of our second reserved judgment. The substance of that paragraph was agreed. Such differences as there were between the parties were in our view immaterial, especially if the claimants’ position on paragraphs 6.370-6.372 was taken into account. We state our conclusions in regard to those paragraphs in paragraph 100 of appendix 11 on pages 264-265 below. Submission 23: Weight of pallets and relevance to physical effort Case Numbers: 3304495/2018 & others 57

[193]This submission was an attempt to re-argue a point for what was in our judgment no good reason. We did, however, in carrying out our reconsideration of the work of all of the sample claimants and comparators revisit the matter, and we came to the same conclusion, namely that(1) we could not accept that the weight of a wet pallet would be double that of a dry pallet, although it was as a matter of common sense going to be more than that of a dry pallet, and

(2) in the absence of evidence of the actual weight of a wet pallet as opposed to a dry one, we could not conclude that Mr Todd’s evidence in paragraph 170 of his witness statement that “[t]hey get a lot heavier when they are wet” was reliable. Estimates of that sort do not help. Empirical evidence would have helped. In the absence of such evidence, what we said in paragraph 701 on page 555 of our second reserved judgment was probably the only lawful conclusion open to us. In any event, on reconsideration it still seemed right to us. Our conclusion in that regard is stated in paragraph 108 of appendix 11 on page 269 below. Submission 24: Frequency of inside pallets

[194]We accepted submission 24. The correct determination would have been that Mr Pratt did the job of inside pallets only during 2012-2013 and that during that period he did that job on 6 occasions, which meant that, applying H31, he did it during that period “occasionally” rather than “rarely”. We deal with this issue in paragraph 106 of appendix 11 on page 268 below. Submission 25: Training on craned battery changes

[195]This, the respondent’s final submission in relation to what we concluded about the work of Mr Pratt, was not based on anything new, but having thought again about what we had concluded in paragraph 715-730 on pages 558-563 of our second reserved judgment (having indicated in paragraph 730 of that sequence that we would be willing to do so if an application for reconsideration were made) about whether it was part of Mr Pratt’s work to do craned battery changes, we concluded that we had placed too much reliance on the absence of a record of Mr Pratt having been trained. Placing reliance on that absence was in our view not sufficient to justify rejecting Mr Pratt’s unchallenged evidence that he did in fact do such changes, and so we concluded that it was indeed part of his work to carry out such changes. Our conclusions on the work of Mr Pratt in regard to craned battery changes are stated in paragraph 114 of appendix 11 on pages 269-270 below. Mr Todd Submission 1: Frequency of battery changes

[196]We saw no need to change what we said in paragraph 736.8 on page 566 of our second reserved judgment, which, on review, appeared to us to be completely apt. We add that “goods in” work is a range of tasks, and that in our view adding the label “goods in” to them is of no value in this context. We have stated many things about the work of “goods in/tipping” in paragraphs 2-62 of appendix 12 on pages 273-286 below. Case Numbers: 3304495/2018 & others 58 Submission 2: Ratchet straps and goods in; tipping

[197]This submission failed to take into account our use of the word “material” in paragraph 737 on page 566 of our second reserved judgment and what we said in paragraph 54 on page 21 of that judgment. Having said that, we have stated our conclusions on paragraphs 6.89-6.92 of the EVJD for Mr Todd in paragraphs 2 and 7 of appendix 12 on pages 273 and 274 below. In addition, we were reminded on reconsideration that Mr Todd had said (as recorded on page 23 of the transcript of day 25) that the effort required to release a strap which had folded on itself was not as much as it would take to lift a full bulkhead. We state our conclusions on what was required to release ratchet straps and the related issue of the risk of a hand injury (which is the subject of the next submission below) in paragraph 8 of appendix 12 on page 274 below. Submission 3: Finger and hand injuries

[198]This submission was helpful in that it referred us to the risk assessments at D9/197 and D9/201. It was true that they referred to the risk of “the Unloader being hit, cut or trapped by faulty or unfamiliar trailer bulkheads/load restraint systems” and of a “Dekitter being hit by strap/buckle or by moving loose equipment when releasing tension from a strap.” However, there was a series of measures stated to be applicable to minimise those risks. The only relevant part of D9/201 in that regard was this sentence: “If the Unloader encounters faulty bulkheads/load restraint equipment or is uncertain of how to operate them, then the Supplier Driver is escorted to the bay to perform the task.” D9/197 contained the following rather more extensive statement of how the relevant risks could be minimised: “• Dekitter releases tension from straps in a controlled manner and remains vigilant for moving loose equipment. ...• Dekitters/Loaders are trained on using load restraint systems as part of their Know Your Stuff for Goods Out induction training.

• Gloves are mandatory for this task.” Submission 4: Instability of MUs

[199]We have, on reconsideration, stated in paragraph 54 of appendix 12 on pages 284- 285 below for the avoidance of doubt our conclusion on the subject-matter of this submission. Submission 5: Moving Danish trolleys

[200]We found this submission to be a simple attempt to re-argue something on which we had (in paragraph 748 on page 569 of our second reserved judgment) stated a clear conclusion. We have, in paragraph 2 of appendix 12 on page 273 below, incorporated paragraph 6.149 of the EVJD for Mr Todd, but read in the light of what we say in paragraphs 746-748 on pages 568-569 of our second reserved judgment. Case Numbers: 3304495/2018 & others 59 For the avoidance of doubt, on reconsideration we thought that we had originally (in our second reserved judgment) stated something rather like what the respondent contended for in regard to paragraph 6.149 of the EVJD, but in any event on reconsideration we came to the same conclusion as that which we state in paragraph 748 on page 569 of our second reserved judgment. Submission 6: FareShare and frequency of securing half tipped loads

[201]In paragraph 465 on page 65 of the respondent’s application for reconsideration, it was said that it was “not in dispute” that “a delivery had to be secured after being half tipped in one chamber, before the trailer was moved to the other chamber” and that Mr Todd did that work. The claimants accepted what was in their proposed words for paragraph 6.193 of the EVJD for Mr Todd, which were these. “There were two other situations in which the job holder fitted Ratchet Straps and/or Retention Bars:(a) From 2017, when securing loads for FareShare (see paragraph 6.298 below), the job holder attached Ratchet Straps to secure the UODs within that load and Retention Bars;

(b) where a delivery was being half tipped in one Chamber before being moved to the other, in which case only one Ratchet Strap would be attached. Both of these situations happened rarely.”

[202]Our conclusion stated in paragraph 760 on page 571 of our second reserved judgment was that we could not accept the respondent’s evidence on paragraph 6.193 of the EVJD for Mr Todd, but that we did not see that as being likely to affect the outcome. That was because Mr Todd had to secure whatever load he was putting onto a lorry, and he would have to do that at a minimum by using straps, and in some cases one or more retention bars. However, the frequency with which he used a retention bar might have been a material factor, and given that a FareShare cage might have needed one, we concluded on reconsideration that we should accept the claimants’ proposed words for paragraph 6.193 as an accurate statement of fact, which we did. Those words are accordingly incorporated in our determination of his work via paragraph 2 of appendix 12 on page 273 below. Submission 7: Use of mobile phones for calculations

[203]This submission was an attempt to re-argue a point for what was in our judgment no good reason. We incorporate paragraph 6.200 of the EVJD for Mr Todd but on the basis that it is to be read with paragraphs 761-765 on pages 571-572 of our second reserved judgment, via paragraph 64 of appendix 12 on pages 286-287 below. Submission 8: Discretion in choosing correct MHE to move pallets Case Numbers: 3304495/2018 & others 60

[204]In paragraph 476 on page 67 of the respondent’s application for reconsideration, we were “invited to clarify” whether we had “accepted that the respondent’s version of paragraph 6.204” of the EVJD for Mr Todd “should be placed before the IEs”. When we revisited this issue on reconsideration, we came to the conclusion that the subject-matter of paragraph 6.204 of the EVJD for Mr Todd was accurately described in the claimants’ proposed words for that paragraph, given what Mr Todd said in cross-examination. However, we reiterate here that we could see no reason to think that there was any extra demand, and therefore value, for the purposes of section 65(6) of the EqA 2010 in having a choice (or, it might be said, having to make a decision) as to which MHE to use: whether a manual pump truck or a Pedestrian PPT, i.e. a pedestrian powered pallet truck. That was because the choice would depend on the weight of the pallet to be moved, and if there was any doubt about the ability of a manual pump truck to move the pallet then it would simply have to be moved with a Pedestrian PPT. We add that even if Mr Todd only ever used a Pedestrian PPT, then it was probably possible for any other operative doing the same work to do the same thing since the respondent could not give such an operative the choice only of a manual pump truck, as that would not get the work done. Our conclusion in this paragraph is incorporated in paragraph 64 of appendix 12 on pages 286-287 below. Submission 9: Potential number of products on a single pallet

[205]This submission missed the point that our findings of fact stated in paragraphs 769- 771 on pages 573-574 of our second reserved judgment were what was to be taken into account by the IEs. This issue is covered by what we say in paragraph 64 of appendix 12 on pages 286-287 below. Submission 10: Breaking down pallets and carrying products by hand

[206]This submission was based on an apparent failure to take into account our findings of fact stated in paragraphs 775 and 778 on page 575 of our second reserved judgment. This issue is also covered by what we say in paragraph 64 of appendix 12 on pages 286-287 below. Submission 11: Goods in: weights of trays

[207]When arriving at our conclusion stated in paragraph 780 on page 576 of our second reserved judgment, we assumed that the weight of a tray was not relevant to the task of sliding a tray across a pallet. However, when reconsidering this issue, we concluded that it was a relevant factor, and we concluded that what was said in the document at pages 130-135 of the bundle about tray weights was relevant. That was that (as stated on page 132) the “average tray weight, including the weight of the plastic tray, is 8.21kg”, and that there was “a maximum tray weight setting for suppliers of 23kg”. What we say in paragraphs 66 and 67 of appendix 12 on page 287 below applies those conclusions. Submission 12: The way in which rechecking was conducted Case Numbers: 3304495/2018 & others 61

[208]The references to Mr Pratt in paragraph 782 on pages 576-577 of our second reserved judgment were inadvertent errors, which we now gladly correct.

[209]In paragraph 492 on page 69 of the respondent’s application for reconsideration, this was said. “The Tribunal may have overlooked the reference in D9/569/1 and the oral evidence from the JH in finding in paragraph 782 that the AMC was not used for rechecking before 2017.”

[210]We did not “[find] in paragraph 782 that the AMC was not used for rechecking before 2017.” On reconsideration, when looking again at D9/569 we saw that only rows 15- 17 on pages 2-3 applied to dealing with the OR50, and that row 16 required the worker to do this: “Write your findings on the OR50 and pass it back to the clerk to resolve”. Row 17 required this: “Review and resolve the – following the Resolving OR50 Report Warehouse Team Exceptions process” [sic]. The latter might have involved using an AMC, but if it did not then the AMC was required to be used in 2012, but only for “Identifying Problem Pallets”. Did these things matter as far as the demands of the work were concerned? We concluded that it was unlikely that they would, but in any event, paragraph 6.280 of the EVJD for Mr Todd remained inconsistent with paragraph 6.277 of that EVJD. Paragraph 6.277 of the EVJD was in reality an assertion about the freedom of Mr Todd to decide the order in which he investigated stock reconciliation errors and “the frequency with which he rotated between Rechecking and Grid Walking”. That was dealt with also in paragraph 6.275 of the EVJD for Mr Todd, on which we make a specific finding in paragraphs 73-74 of appendix 12 on page 288 below. On that basis, submission 12 was about something that was immaterial unless it was more difficult to use an AMC than a paper OR50. We heard no evidence to that effect, so we were driven to the conclusion that it was indeed about something immaterial. Submission 13: Moving and changing the battery on a Layermaster truck

[211]This submission was an “invitation to reconsider” what we said in paragraph 789 on page 579 of our second reserved judgment “as the omission by the Tribunal to make any finding on the facts identified in paragraph 6.366 appears to be based on a misunderstanding of the evidence by the Tribunal.” That was a misreading of paragraph 789 on page 579 of that judgment. In any event, the factual situation was what we determined (as required, as we say in paragraphs 40-48 above), and that was clear from what we said in paragraph 789. Paragraph 79 of appendix 12 on page 289 below makes provision for paragraph 6.366 of the EVJD for Mr Todd. Submission 14: Inside pallets

[212]This submission, directed at what we said in paragraph 790 on page 579 of our second reserved judgment (about the impact of rainwater on the weight of a wooden pallet), was expressly a repeat of submission 23 in relation to the work of Mr Pratt, to which we refer in paragraph 193 above. Such repetition was unnecessary. Case Numbers: 3304495/2018 & others 62 Submission 15: Outstanding disputes in John Todd’s EVJD

[213]This was a submission that we had failed to make determinations “on the facts identified in paragraphs 6.45-6.46, 6.53, and 6.102-6.103 of the EVJD” and the respondent accordingly asked to make such determinations or give clarification. We did not make specific determinations in relation to those paragraphs deliberately, on the basis that the factual assertions in them, and the disputes maintained in them, were resolved respectively by213.1 paragraph 68 of our first reserved judgment (resolving the disputes in relation to paragraphs 6.45 and 6.46 of the EVJD for Mr Todd);

213.2 paragraph 220 on pages 443-444 of our second reserved judgment (relating to what was said in paragraph 6.53 of the EVJD for Mr Todd); and

213.3 paragraph 92.1 on page 411 of our second reserved judgment (which resolved the disputes about what was said in paragraphs 6.102-6.103 of the EVJD for Mr Todd).

[214]We reconsidered our conclusions on paragraphs 6.102 and 6.103 of the EVJD for Mr Todd and we state our conclusions after such reconsideration in paragraphs 9-22 of appendix 12 on pages 274-277 below. We saw no reason to change our determinations as stated in the first two subparagraphs of the preceding paragraph above. Mr Pustula Submission 1: Frequency of ‘paper pick’ assignments Submission 2: Use of AMC in ‘layer pick’ assignments

[215]Submission 1 was to the effect that we needed to make a finding of fact about the frequency with which Mr Pustula did paper pick assignments instead of ones using an AMC. This submission had to be read with submission 2 in relation to Mr Pustula’s work, which was directed at paragraph 818.3 on page 586 of our second reserved judgment. We agreed on reconsideration that we had erred in one of the things which we had said in paragraph 818.3. That was because what was done in a “paper pick” assignment did not appear to be capable of being done using an AMC, so that we were mistaken in thinking that there was no material difference between a paper assignment and one carried out using an AMC. That was, on reconsideration, clear from what was said in paragraphs 6.132 and 6.133 of the EVJD for Mr Pustula. However, what the claimants proposed for those paragraphs was in our view a sound statement of the work, or at least what the respondent proposed added in our view nothing material. That conclusion is given effect in paragraph 12 of appendix 13 on page 293 below.

[216]Submission 1 concerned paragraph 6.134 of the EVJD for Mr Pustula. What the respondents proposed in that regard (“an average of 6 - 7 such Assignments each month”) was not borne out by what Mr Pustula said in cross-examination as recorded Case Numbers: 3304495/2018 & others 63 on pages 12-14 of the transcript of day 28 (after 2013, it was not every day but “perhaps in a week ... once or twice”, and before 2014, he “didn’t do it too often”), which was largely reflected in the claimants’ proposed words for paragraph 6.134 of the EVJD for Mr Pustula, which were as follows. ‘As a result of the job holder spending a proportion of his time allocated to dealing with MUs and not, therefore, being logged into an AMC, subject to his capacity he was asked to undertake “paper pick” Assignments more frequently than other colleagues. In the early part of the Evaluation Period, before the job holder started working with MUs, he was asked to do paper pick assignments much less frequently.’

[217]So, up to about 2014 there was no reliable evidence before us about the frequency. That was hardly surprising, as there rarely is reliable evidence about the frequency of things that are not recorded (nowadays on a computer). Doing the best we could, we thought that the word “regularly” in H31 was the best one to describe the frequency after Mr Pustula started working with MUs. This conclusion is given effect by paragraph 13 of appendix 13 on page 293 below. Submission 3: Restacking unsafe cages

[218]This was a submission that we had not determined the dispute between the parties about the content of paragraph 6.156 of the EVJD for Mr Pustula, which related to the restacking of unsafe cages. We disagreed. We dealt with this issue in paragraph 673 on page 549 of our second reserved judgment. Paragraphs 6.421-6.428 of the EVJD for Mr Pratt, read with the submissions of the parties and in particular as agreed by the claimants, was in our view originally a sufficient statement of the frequency with which the need to restack a cage arose and how it was dealt with. The claimants submitted (in our view correctly) in relation to paragraph 6.156 of the EVJD for Mr Pustula that our findings should be the same in regard to the work of both comparators and that paragraph 6.156 of the EVJD for Mr Pustula was a repeat of paragraph 6.152 of the EVJD for him. Did it matter if there was a difference in the experiences of Mr Pratt and Mr Pustula of the frequency with which a need to restack a cage arose? No. It did not. If there was a difference then it might have arisen from different approaches or perceptions, and in any event there was a constant need to be on the lookout for the possibility of a need to restack a cage. Paragraphs 6.422 and 6.423 of the EVJD for Mr Pratt were agreed and in the circumstances we concluded that they applied to the work also of Mr Pustula. They are incorporated in appendix 13 below via paragraph 4.1 of appendix 13 on page 292 below, which incorporates paragraph 102.15 of appendix 11 on page 267 below. Submission 4: Overall weights of MUs

[219]In this submission, we were asked to clarify the meaning of paragraph 823 on page 587 of our second reserved judgment and its impact on paragraph 6.238 of Mr Pustula’s EVJD. Case Numbers: 3304495/2018 & others 64

[220]On looking again at what we said in paragraph 823, we still thought that the sentence “The overall weight being ‘pushed through’ by the job holder each shift far exceeded the weight of the MUs themselves” in its context was meaningless for present purposes. The issue was the weight of product pushed through. If the MU with 6 trays on top of it regularly weighed in excess of 260kg, then that spoke for itself. Submission 5: Moving around Danish trollies

[221]This submission concerned what we said in paragraph 827.1 on page 588 of our second reserved judgment. What we said there was that we could not see how resolving the dispute could affect the demands and therefore the value of the work of Mr Pustula, because the dispute was about whether or not he kept Danish Trollies tidy or whether he instead moved them around within the holding areas “in order to optimise the space available and make them easily accessible” and because we could not see how often that might need to be done.

[222]What the respondent said in paragraph 529 on page 73 of its application for reconsideration, in support of submission 5, clarified the frequency with which there might be a need to do whatever Mr Pustula did do (tidy or move around as the case may be) to Danish trollies. That was that there were five seasonal periods when that happened. Did it make any difference whether one called that tidying or moving around to optimise the space available and make them easily accessible? No. It was the same thing. This dispute was therefore about nothing which could in our view affect the demands of the work and therefore its value. We accepted, however, that there were five seasonal periods when it was necessary to tidy/move around Danish trollies.

[223]Having said that, we point out that we did in fact deal with the dispute stated at the end of paragraph 221 above, by clarifying what was involved in making the area tidy or alternatively organising it in the manner contended for by the respondent. We did so in paragraphs 824 and 827.3 on pages 587-589 of our second reserved judgment. When writing appendix 13 below we reconsidered the parties’ positions in regard to paragraphs 6.239-6.245 of the EVJD for Mr Pustula and, as stated in paragraphs 15 and 16 of that appendix on page 294 below, we saw no reason to change our conclusions on those paragraphs of the EVJD. Mr Young Submission 1: Pallet clearance and loading

[224]This submission was directed to what we said in paragraph 865 on page 598 of our second reserved judgment. The submission was that we had wrongly said that the work described in paragraph 6.32 of the EVJD for Mr Young was what was called by the respondent “Inside Pallets” elsewhere, i.e. in relation to the work of several other comparators. Case Numbers: 3304495/2018 & others 65

[225]The submission was that the task was best seen by reference to what was said at D4/3/16 (to which we referred in paragraph 91 on page 411 of our second reserved judgment) and that it was as a result not best described as “Inside Pallets”.

[226]We were happy to agree that the work was best described by reference to D4/3/16 and that it was not the same as “Inside Pallets” work as done by other comparators. Submission 2: Moving empty pallets using a manual pump truck

[227]This submission was best seen in the following paragraphs, which were on page 75 of the respondent’s application for reconsideration. “539. In paragraph 872, pages 599-600, appendix 8 of the Judgment, the Tribunal has substituted its own view about the work being done, despite the point not being in dispute, and the Respondent’s position having been supported by the evidence in any event. 540. The Tribunal is invited to confirm that the agreed fact that work was done in wet conditions is to be placed before the IEs for them to consider.”

[228]This submission was a simple disagreement with the clear conclusion stated in paragraph 872 on pages 599-600 of our second reserved judgment, at which we had arrived reluctantly and after much thought. Submission 3: Recovering and transporting fallen batteries

[229]This submission was stated in the following manner in paragraph 541 on page 75 of the respondent’s application for reconsideration. “The Tribunal is invited to reconsider paragraph 881, pages 601-602, appendix 8 of the Judgment as the Tribunal omitted to make a determination on the facts identified in paragraphs 6.183-6.185 of the EVJD and/or the Respondent requests clarification.”

[230]The rest of the submission was to the same effect about paragraphs 6.186-6.187 of the EVJD for Mr Young. The submission failed to take into account what we said in paragraphs 881 and 882 on pages 601-602 of our second reserved judgment. We saw no reason to vary what we said there. What we say in paragraphs 4 and 5 of appendix 14 on pages 298 and 299 below states if only for the avoidance of doubt the manner in which we regarded the disputes maintained by the parties to which submission 3 relates and the basis on which we determined them. The effect of what we say there is to put beyond doubt two things which we thought were already clear, and they were230.1 that since paragraphs 6.183-6.185 of the EVJD were agreed and we said nothing about them, the content of those paragraphs is capable of being taken into account by us and the IEs but only if we or they see it as being Case Numbers: 3304495/2018 & others 66 helpful to do so on the basis that what is in those paragraphs adds something material to D9/502, and

230.2 what the claimants proposed for paragraphs 6.186 and 6.187 of the EVJD is capable of being taken into account by us and the IEs but only if we or they see it as being helpful to do so on the basis that what is in those paragraphs adds something material to D9/502. Submission 4: Moving between chambers as a pedestrian (plastic sheets)

[231]This submission was a simple disagreement with the conclusion which we stated in paragraph 894 on page 604 of our second reserved judgment, at which we arrived only after much careful thought. Submission 5: Difference between paper pick assignments and AMC picking

[232]This submission related to what we said in paragraph 903 on page 606 of our second reserved judgment, which was to the same effect as what we said in paragraph 818.3 of that judgment, and so submission 5 here was to the same effect as submission 1 in relation to the work of Mr Pustula, to which we refer in paragraph 215 above. As with that submission, we accepted that we made a mistake in thinking that a paper pick was the same as picking using an AMC. We state the effect of this paragraph in paragraph 26 of appendix 14, on page 302 below. Submission 6: Process of assembling dollies and cages

[233]This was a submission in relation to what we said in paragraphs 904-905 on pages 606-607 of our second reserved judgment. The submission helpfully pointed to the relevant part of the AMC user guide for picking by line (paragraph 3.19) concerning opening a new UOD. When looking at that paragraph (it was on pages 3-66 to 3.69, on pdf pages 104-107 of that guide), we realised that it was helpful to read it when considering the demands of that aspect of the work of an assembler in a fresh DC, as it showed what was required of the assembler, what could go wrong when it was done, and how to deal with any problem which arose in the course of the work. We refer to that part of the AMC user guide in paragraph 27 of appendix 14 on page 302 below, where we incorporate what we say here. Submission 7: Assembling from multi-product pallets

[234]This was a submission to the effect that we had not made a factual finding about paragraph 6.301 of the EVJD for Mr Young. We thought that we had done so, in what we said in paragraph 907 on pages 607-608 of our second reserved judgment. The factual finding which we made in that paragraph was that the work of assembling from a multi-product pallet in a fresh DC was stated (in, it will be recalled, the respondent’s own document) at D9/251/10-11, and that that was a better statement of that work than paragraph 6.301 of the EVJD for Mr Young. Our statement of a willingness to reconsider what we concluded in paragraph 907, stated at the end of that paragraph (“if a party believes that we are wrong in thinking that D9/251/10-11 Case Numbers: 3304495/2018 & others 67 was an apt description of the subject-matter of paragraph 6.301 of that EVJD then they can ask for a reconsideration of this aspect of the matter, stating in precise terms why they are doing so”), was not taken up in what the respondent said in support of submission 7, since what was said in paragraphs 560-564 on page 77 of the respondent’s application for reconsideration was based purely on the fact that the parties had agreed parts of what was said in paragraph 6.301 of the EVJD. Partly for that reason, but in any event because on revisiting D9/251/10-11 we again came to the view that the description of the work there was far better than the content of paragraph 6.301 of the EVJD, we did not (applying the words of paragraph 564 at the bottom of page 77 of the respondent’s application for reconsideration) “reconsider this dispute in relation to the assembly of multi-product pallets”. We did, however, see that the word “was” was missing in the seventh line of paragraph 907 of our second reserved judgment, between the words “which” and “set”. Submission 8: Changing the battery on a Pedestrian PPT

[235]This submission was about the frequency with which Mr Young had to change the battery on the Pedestrian PPT that he was using. On reconsideration, we could see that we had failed to deal with that issue and that at least to that extent, this submission was apt. It was said in paragraph 566 on page 78 of the respondent’s application for reconsideration that it was “not in dispute that [Mr Young] would have to change the battery at least once” per assembly shift. In fact, what the claimants said was that Mr Young had to change the battery “only once per Assembly shift subject to the condition of the batteries”. The task of changing the battery on a Pedestrian PPT was not going to differ according to whose Pedestrian PPT it was, and we saw that the respondent had proposed in paragraph 6.504 of the EVJD for Mr Pratt that it “could happen as often as once per shift; or, depending on the battery conditions of the PPT allocated to him each night, up to once a week.” That proposition had been accepted by the claimants and paragraph 6.504 of that EVJD had been agreed accordingly. Our conclusion on reconsideration was that Mr Young (and therefore any other fresh DC assembler) would need to change the battery on a Pedestrian PPT no more than once per shift. Submission 9: Changing the battery of a reach truck

[236]This submission was in part about how frequently Mr Young had to change the battery on a reach forklift truck. It was said in paragraph 570 on page 78 of the respondent’s application for reconsideration that we had not made a decision on “frequency of change”. We had. It was in paragraph 938 on page 614 of our second reserved judgment. Submission 9 in relation to the work of Mr Young was otherwise this (stated in paragraph 571 on pages 78-79 of the respondent’s application for reconsideration). “In respect of paragraph 6.383 of the JH’s EVJD and battery description the Claimants said it was misleading/irrelevant to identify that the lead acid batteries in question “also had multiple interconnected cells and caps with numerous cables running across the top of the batteries, all of which were exposed during the battery change process.” The Tribunal has not made a finding of fact in Case Numbers: 3304495/2018 & others 68 respect of the facts identified in paragraph 6.383, but it has identified photographs in paragraph 943 of the Judgment, D9/0.1/16 and D9/0.1/17, that show that the Respondent’s description of the lead acid batteries is correct.”

[237]We agreed that those photographs showed the respondent’s description of the lead acid batteries was correct. That was one reason why we referred to those photographs. By referring to them, we implicitly made a finding of fact that the batteries were as shown in those photographs, and we thought that that was sufficient. We still do. We found it hard to understand why it was thought that, given the photographs at D9/0.1/16 and D9/0.1/17, we needed expressly to say that, as it was said in paragraph 6.383 of the EVJD, “[t]he lead acid batteries used to power the FLTs ... also had multiple interconnected cells and caps with numerous cables running across the top of the batteries, all of which were exposed during the battery change process.” Submission 10: Frequency of encountering and reporting battery acid spillages

[238]This submission, which related to paragraphs 945-950 on pages 615-616 of our second reserved judgment, was an attempt to re-argue a point for what was in our judgment no good reason. What we said in those paragraphs seemed to us on reconsideration still to be apt. Submission 11: Determinations in relation to the work of Les Young

[239]This submission failed to take into account what we said in paragraph 54 on page 21 of our second reserved judgment. However, in any event, our findings in appendix 14 below are a determinative statement of what we have concluded was the work of Mr Young, and in paragraph 5 of that appendix, on page 299 below, we state an approach which makes it clear what are our conclusions on the parts of the EVJD to which paragraph 582 on page 80 of the respondent’s application for reconsideration refers. Mr Jones Submission 1: Planning the stacking

[240]This was an invitation to reconsider what we said in paragraphs 252-253 on page 451 of our second reserved judgment about Mr Jones’ non-standard way of stacking cages. It was made in part on the basis of the proposition that we had (in paragraph 140 on page 217 of our second reserved judgment) taken a different approach in regard to one aspect of the work of Ms Cannon.

[241]What we said in paragraphs 252-253 on page 451 of our second reserved judgment about the work of assembly (as done by Mr Jones) was clear and, in our view on reconsideration, accurate. That was not least because D9/224/4-8 was about how to stack, and what the respondent was arguing was that we should take into account a particular skill of Mr Jones, when that was not the test, as we had decided in paragraph 64 on pages 23-24 of our second reserved judgment. Case Numbers: 3304495/2018 & others 69

[242]What the respondent said in paragraph 588 on page 81 of its application for reconsideration was that we had in paragraph 140 on page 217 of our second reserved judgment made “findings in Ms Cannon’s favour in relation to planning which were not required by any training documents”. That situation was not in our judgment comparable. What Ms Cannon did as stated by us in paragraph 140 on page 217 of our second reserved judgment was not contrary to any training document. What Mr Jones did as described in paragraph 6.132 of the EVJD for him (which we set out in paragraph 252 on page 451 of our second judgment) was actually contrary to the training given in D9/224. Submission 2: Methods of work

[243]There was at first sight some apparent merit in submission 2 in relation to the work of an assembler as done by Mr Jones. That was because we had concluded in paragraph 254 on pages 451-452 of our second reserved judgment that what was described in paragraph 6.136 of the EVJD for Mr Jones was not approved by the respondent. As the respondent pointed out in paragraph 593 on pages 81-82 of its reconsideration application, both Mr Evans and Mr Matthews made statements that the ways in which Mr Jones worked which were not covered by, or contrary to, the training materials, were in fact approved of by them. Those were general statements, and did not refer to the specific things which were approved, but that did not detract from the force of the point made.

[244]Paragraph 6.136 of the EVJD for Mr Jones related to pressing the “more than 5” button more than once. That paragraph was in these terms. ‘However, to assist him in forward planning the stacking of his Cages, the job holder pressed the “more than 5” function on his AMC multiple times to work out the final number of Units of that Product he had to assemble at that particular multi select location. By doing that and knowing the overall number from the start, he was able to decide and plan how he would stack those Units across one or more Cages. The fact of a higher Unit count required a higher level of concentration. See page 29 of the AMC Guide.’

[245]On reconsideration, we could see that we had erred in thinking that pressing the “more than 5” function button was contrary to the respondent’s training materials. The claimants had, in fact, opposed paragraph 6.136 of the EVJD on the basis that this was part of “the Respondent’s attempt to portray [Mr Jones] as performing a different task using additional skills.” If nothing else, the change which occurred in 2014 as described in paragraph 6.137 of the EVJD (which was not opposed; it was to change the “more than 5” function to “more than 99”) showed that we had erred in thinking that pressing the “more than 5” function button was contrary to the respondent’s training materials. We therefore concluded that we should accept what was said in paragraph 6.136 of the EVJD for Mr Jones if and to the extent that it could be done without contravening the stacking guidelines at D9/168/2. On the latter page, this was said. Case Numbers: 3304495/2018 & others 70 “We pick products to suit the store layout. It means that when a colleague takes a cage/dolly out onto the shop floor to stock the shelves, everything in the cage/dolly is for the same aisle. If we have not followed the AMT exactly, it results in our colleagues having to restack cages and move from aisle to aisle stacking shelves. Or worse, we haven’t picked all the stock requested and our colleagues don’t have anything to put on the shelves for the customers to buy.”

[246]We rather doubted that it was possible therefore to do what was described in paragraph 6.136 of the EVJD for Mr Jones without doing something that was not approved by the respondent, except in rather limited circumstances. So, we asked ourselves, should that paragraph be incorporated in our determination of the work of Mr Jones? No, we decided, it should not be. That was because the work was in our view sufficiently described in the documents (i.e. for the avoidance of doubt including the videos) to which we refer in paragraph 27 of appendix 7 on pages 208-209 below and because what was said on D9/168/2 indicated that the assembler was required by the respondent to follow the AMC’s instructions about what should be put in each cage. Submission 3: Reversing cages into a Loading Bay

[247]This was a submission that (as stated in paragraph 595 on page 82 of the respondent’s application for reconsideration) “At appendix 8 of the Judgment, the Tribunal has made no determination in respect of paragraph 6.224 of the JH’s EVJD.” It was correct to say that we had not made such a determination. We had done that because the substance of paragraph 6.224 of the EVJD was not disputed and what the claimants proposed for it stated in our view materially the same thing as that which was proposed by the respondent.

[248]In any event, we had ourselves dealt with the situation by deciding (in paragraph 17.6 on page 389 of our second reserved judgment) that D9/193 was applicable to the work of an assembler, and D9/193 stated this in column 6: “If the Assembler needs to reverse into this area, all round observation is crucial to avoid collisions or falls and speed should be reduced.”

[249]Those were the very words in paragraph 6.224 of the EVJD for Mr Jones to which the claimants objected. For the avoidance of doubt, we regarded that objection as unjustified given what was in D9/193, but when writing our second reserved judgment we thought that we did not need to say that since we had stated in paragraph 17.6 on page 389 of our second reserved judgment that D9/193 applied to the work of an assembler in an ambient DC.

[250]In any event, what the respondent said in paragraph 601 at page 83 of its application for reconsideration (“The Tribunal is invited to confirm its determination of the facts in relation to the wording of paragraph 6.224 of Mr Jones’s EVJD by reference to the SSOW document at D9/193/1”) was unnecessary. Martin Hornak Case Numbers: 3304495/2018 & others 71 Submission 1: The task of assembly as done by Martin Hornak

[251]This first submission in relation to our findings concerning the work of Mr Hornak was a correction of paragraph 6.427 of the EVJD for Mr Hornak, the need for which we had ourselves pointed out in paragraph 340 on page 471 of our second reserved judgment. The correction was to add the word “when” before “he was deployed on Assembly”, so that the paragraph read as follows. “The job holder stacked Units at varying heights in each of the Cages being Assembled to in each Assignment. These series of physical movements were required of the job holder for each Unit he assembled throughout the shift (i.e., an average of 1,161 Units on each ‘full’ shift on Assembly i.e., when he was deployed on Assembly for 80% of more of his shift (rising to a maximum of 1,750 Units) weighting (on average) 7.72 tonnes per shift).”

[252]The Leigh Day claimants submitted in response: “It is not necessary in the interests of justice to reconsider appendix 8, §340, p.471 S2J, which deals with paragraph 6.427 of Mr Hornak’s EVJD. At appendix 8, §272 p.456 S2J, the Tribunal concluded that total units picked across a shift and the average weight of a cage were not relevant to the question of equal value. Further, there is no reliable data on which the Tribunal could base factual conclusions about these matters: see §§58-61 of the 12 July 2023 judgment.”

[253]In paragraph 608 on page 84 of the respondent’s application for reconsideration, this was said. “Given the importance of physical effort to the work of the comparators and the Tribunal having been confused by the unclear nature of paragraph 6.427, the Tribunal is invited to reconsider this paragraph.”

[254]On reflection, we agreed with the respondent that it was important to know the number of units and their likely weights for the purpose of assessing the demands of the work of an assembler. The problem was the reliability of the figures given by the respondent, but in that regard we found what was said in the training materials to be helpful, as we said in paragraph 110 on page 420 of our second reserved judgment. We have incorporated the figures in that paragraph via paragraph 3 of appendix 8 on page 223 below. Submission 2: Finding UODs and priority cages

[255]This submission is answered by what we say in paragraph 33 of appendix 8 on page 229 below. Submission 3: Unloading high value cages Case Numbers: 3304495/2018 & others 72

[256]Paragraph 54 on page 21 of our second reserved judgment applied to the dispute between the parties about the content of paragraphs 6.104-6.105 of the EVJD of Mr Hornak. Nevertheless, on reconsideration we have dealt with that dispute by what we say in paragraph 16 of appendix 8 on page 225 below. Submission 4: Shrink wrapping cages

[257]Paragraph 54 on page 21 of our second reserved judgment applied to the dispute between the parties about the content of paragraph 6.258 of the EVJD for Mr Hornak. We have, however, expressly resolved the dispute about paragraph 6.258 of that EVJD in paragraph 77 of appendix 8 on pages 235-236 below. Ernest Davis Submission 1: Custody of key fobs

[258]This submission was based on what appeared to us to be a false premise: that only Mr Davis had a key to the tobacco cage. That was highly unlikely and there was no evidence before us to that effect.

[259]If he was not the only holder of a key then it did not matter that he held it. What mattered was that when he used it he was responsible for ensuring that the cage was not left open when he was not moving in and out of it.

[260]For the avoidance of doubt, the comparison which is drawn with the situation concerning Ms Garrod to which the respondent refers in paragraph 625 on page 86 of its application for reconsideration was with a different set of circumstances: she could not keep the key to the store overnight in the store, whereas Mr Davis could have kept the tobacco cage key in his locker overnight.

[261]Having said that, for the avoidance of doubt we concluded that the fact that Mr Davis was trusted with the tobacco cage key was the relevant fact (if there was one), and whether or not he took it home did not affect that, or was for present purposes irrelevant. Was it, therefore, relevant that Mr Davis was trusted with the tobacco cage key? We concluded that it was of at best peripheral relevance only. It was marginally relevant that, as stated in paragraphs 6.287-6.289 of the EVJD for Mr Davis, he put boxes of tobacco products into cages and then loaded those cages, which meant that the stock which he was responsible for loading might have been of greater value than it would otherwise have been. It was not in our view relevant that he was himself a particularly trusted employee, as that was a personal characteristic which was not relevant to the demands of the work that he did. Submission 2: Searching for lost cages

[262]This submission was not in our judgment well-founded. The dispute asserted not to have been resolved by us (which was whether or not “the job holder had to undertake a search across all loading Bays and storage Grid Locations” for a “lost sales” cage) was in our view resolved by what was said in Case Numbers: 3304495/2018 & others 73262.1 what we said in paragraphs 499 and 500 on page 510 of our second reserved judgment (which we have in fact taken further in paragraph 33 of appendix 8 on page 229 below); and

262.2 the part of the document (in fact it was two versions of the same one: they were at D9/584 and D9/629) which we set out in paragraph 556 on page 523 of our second reserved judgment. The document at pages 136-139 of the bundle, to which reference was made in paragraph 630 on page 87 of the respondent’s application for reconsideration, added nothing material to what was said in D9/584 and D9/629. All Sample Claimants and Comparators Submission 1: The risk of lacerations caused by damaged cages

[263]We thought that what we said in paragraph 483 on pages 506-507 of our second reserved judgment recognised that cuts could be caused by a damaged cage, and we thought that we took a consistent line in that regard towards both sample claimants and the comparators. The respondent invited us in the final paragraph of its application for reconsideration (paragraph 638 on page 88) to “find that the Respondent’s proposed wording at paragraphs 6.194 and 6.195 [of the EVJD for Mr Pratt] was relevant and material”. Those paragraphs were not materially different from paragraph 6.183 of the EVJD for Mr Hornak, and the impact of damaged cages could not in our judgment be regarded as differing between comparators or claimants in the circumstances of this case. We determine such dispute as there was about paragraph 6.183 of the EVJD for Mr Hornak in paragraph 86 of appendix 8 on page 238 below. The Leigh Day claimants’ application for reconsideration Mrs Worthington Flowers – EVJD 189-194

[264]We were “invited” in paragraph 4 on page 2 of the Leigh Day claimants’ application for reconsideration to “clarify whether [we had] found that Mrs Worthington undertook replenishment of flowers during her normal shifts on an occasional basis, or only ever during overtime shifts, and in either case whether this task should be retained as part of the EVJD for the IEs to consider”.

[265]We have in paragraph 31 of appendix 1 on page 92 below made a specific finding about Mrs Worthington’s work in relation to flowers. Customer service section – cross-referencing query Case Numbers: 3304495/2018 & others 74

[266]Yes, we did make a mistake in our cross-reference in paragraph 7 on page 32 of our second reserved judgment. The cross-reference was to paragraphs [366-368]. It should have been to paragraphs [366-386]. Checking the temperature of the warehouse dairy chiller – EVJD 306-307

[267]The Leigh Day claimants said this in paragraph 6 on pages 2-3 of their application for reconsideration. “The Tribunal is invited to determine the dispute as to whether Mrs Worthington checks the temperature of the warehouse dairy chiller (EVJD 306) and how she performs that check (EVJD 307). The Leigh Day Claimants cannot identify a resolution to this disputed issue by reference to the training materials referred to at S2J appendix 1 §83.7 (p.53).”

[268]In our view the training materials made clear the obligation to check chiller temperatures, wherever the chiller was. In paragraph 83.1 on page 52 of our second reserved judgment, we expressly incorporated C7/142/26. That stated a requirement which applied to the warehouse dairy chiller. The requirement was for a replenisher to inform his or her manager immediately if the replenisher noticed that a chiller did not seem to be keeping food at the correct temperature, and on the same page there was a “Trainer’s Note” to “Point out some temperature indicators to the trainees”. That in our view made it clear that it was a requirement to check the temperature, and the precise manner in which the replenisher did it was immaterial. That conclusion was fully supported by what was said in C7/187. That was as follows. On the right hand side of page 1 of C7/187, this was said. “If you think the chiller or freezer is ‘too warm’ or not working correctly you should inform the Duty Manager immediately.”

[269]On the right hand side of the next page, in regard to chillers on the shop floor, this was said: “check the temperature indicators, placed in the stripping of each cabinet.”

[270]In any event, this query of the Leigh Day claimants was unnecessary since(1) the manner in which a customer assistant actually checked a particular chiller temperature was immaterial, and

(2) what we said in paragraph 83.7 on pages 53-54 of our second reserved judgment was to the clear effect that we had concluded that the respondent required all customer assistants to be vigilant in regard to the temperature of all chillers, wherever the chillers were. Ms Williams Monitoring self-service when on mainbank checkout - EVJD 3.7.3

[271]In paragraph 8 of their application for reconsideration, the Leigh Day claimants referred to C7/34 in support of their submission that we had erred by what we said in paragraph 62 on page 99 of our second reserved judgment. We incorporated C7/34 by reference in a number of places in our second reserved judgment (paragraph 152 Case Numbers: 3304495/2018 & others 75 on page 70, paragraph 77 on page 103, and paragraph 175 on page 365), but in any event it added nothing relevant to the considerations which we discussed in paragraph 62 on pages 99-100 of our second reserved judgment. What we said there, read with what we said in paragraph 61 on page 99 of the judgment, was in our view correct. However, we could see on reconsideration that paragraph 3.7.3 of the EVJD referred to Ms Williams doing something more than just, as we concluded in paragraph 61 of our second reserved judgment, approaching and offering to help a customer who needed help. The addition was a very small one, but we accepted it. We also concluded that the claimants’ proposed words for paragraph 3.7.3 were more apt than those of the respondent. Paragraph 42 of appendix 2 on page 107 below incorporates this conclusion. Description of softkeys – EVJD 4.2.1

[272]This heading was above an “invitation to clarify” what we said in paragraph 78 on page 103 of our second reserved judgment. What we said in that paragraph was in our view clear. What we say about soft keys in paragraph 31 above may help to make it clear why we said what we said in paragraph 78 on page 103 of our second reserved judgment. In any event, we have dealt with soft keys simply by incorporating C7/163 in our statement of the work of Ms Williams, in paragraph 25.10 of appendix 2 on page 105 below. We add that of course C7/163 applied to the work of any customer assistant who operated a till, so that it applied also to the work of for example Mrs Worthington. Whether it added anything significant in terms of the demands of the work for the purposes of section 65(6) of the EqA 2010 was another matter, on which we would expect to hear submissions at the final hearing. Age restricted sales – EVJD 5.5, 5.6, 5.8, 5.9 and 5.10

[273]The invitation in paragraph 13 of the Leigh Day claimants’ application for reconsideration to refer to further documents describing responsibilities concerning age-restricted sales was misplaced unless those documents added something material to the rather longer documents which we incorporated via what we said in paragraph 85 on pages 104-105 of our second reserved judgment. Having said that, we would have thought that a litigant or tribunal should be willing in comparable circumstances to take into account training materials which were already in the bundle at any later stage if the interests of justice required it. In the meantime, since the short documents at C7/32, C7/47, C7/48 and C7/213 appeared to add nothing to what was in the documents at C7/13, C7/15 and C7/190 and the Leigh Day claimants advanced no argument that they did add something, we declined the invitation stated in the first sentence of this paragraph. Customers asking for help with e-top-up vouchers – EVJD 6.1.2

[274]What Ms Williams “[did] when asked for help” “with an e-top-up voucher” was not the relevant question here, in our judgment. Rather, it was what she was required by the respondent to do, and we stated our conclusion in that regard in paragraph 191 on page 368 of our second reserved judgment. It was to “offer to help an elderly customer to top up a pay-as-you-go mobile telephone.” We have, in any event, for Case Numbers: 3304495/2018 & others 76 the avoidance of doubt resolved this issue by what we say in paragraph 60 of appendix 2 on page 108 below, but it was implicit that if the offer were taken up then the customer assistant would have to follow instructions on the screen and the till. Asking whether customers have a Clubcard – EVJD 9.2.5

[275]This was a query in regard to paragraph 113 on page 111 of our second reserved judgment. It appeared to us to based on a failure to take into account the every-day reality of working at a checkout. The operator would not know that a customer had a clubcard unless one was being held by the customer and visible to the operator. However, if the customer visibly had a clubcard then it would be counter-productive to ask them if they had a clubcard. Hence the words which we concluded (in paragraph 113 on page 111 of our second reserved judgment) should be used for describing the obligation of a checkout operator in regard to asking whether a customer had a clubcard. We saw on reconsideration that this conclusion was consistent with the agreed text of paragraph 186 of the EVJD for Ms Garrod, which was in these terms. “JH asked every customer she served on the till whether they had a Tesco Clubcard (unless they presented their card to her beforehand or were regulars that JH knew not to ask). This prompted customers who had cards to use them for the transaction.” Breaking down cages – EVJD 16, 16.1.2, 16.1.3

[276]The query raised in paragraph 16 of the Leigh Day claimants’ application for reconsideration was based on the proposition that it was our job to decide whose words in the EVJD were to be preferred. We address that proposition (and reject it) expressly in paragraphs 40-48 above. We could not see anything wrong in what we concluded as stated in paragraph 148 on page 120 of our second reserved judgment about the use of a blue top trolley.

[277]We add that what was said in paragraph 17 of the Leigh Day claimants’ application for reconsideration (where we were “invited to refer to ... C7/186”) was odd, given that we had ourselves plainly taken C7/186 into account, as could be seen from what we said in paragraphs 73-76 and 80 on pages 338-340 of our second reserved judgment. However, in the course of reconsideration we did come to a different conclusion on the disputed parts of paragraph 16 of the EVJD for Ms Williams to which this part of the Leigh Day claimants’ application for reconsideration related. That is for the reasons stated in paragraphs 98-99 and 102 of appendix 2, on pages 112-114 below. Angry customers and banned customers – EVJD 18.2.21 and 18.2.22

[278]What we said in paragraph 54 on page 21 of our second reserved judgment applied to the disputed parts of paragraphs EVJD 18.2.21 and 18.2.22 of Ms Williams. In any event, what we say in paragraphs 10-12 of appendix 1 on page 90 below, which we incorporate in appendices 2-6 via paragraph 7 of appendix 2 on page 102 below, was Case Numbers: 3304495/2018 & others 77 all that we or the IEs needed to take into account in regard to the risk of friction with customers and related matters. We do not mean by saying that to imply that that aspect of the work of the claimants was minor; far from it. Replenishing frozen items – EVJD 19.2.28

[279]This query relied on the same proposition as that which we state in the opening sentence of paragraph 276 above. On reconsideration, we came to the same view as that which was stated in paragraph 204 on page 134 of our second reserved judgment about paragraph 19.2.28 of the EVJD for Ms Williams, and we state that in paragraph 148 of appendix 2 on page 121 below. Empty flower buckets – EVJD 19.2.38

[280]This query needed to be seen in the light of what we said in paragraph 86 on page 56 of our second reserved judgment, where we incorporated C7/469 by reference. We did not resolve the issue of frequency there because we could not see how the precise frequency with which a replenisher had to empty flower buckets could affect the demands of the work of the replenisher, and the respondent accepted that it had to be done at least occasionally. On reconsideration, we accepted that we should resolve this dispute.

[281]On the right hand side of page 1 of C7/469, this was said: “During replenishment, always remove empty buckets from the fixture first.” The frequency with which Ms Williams will have had to remove empty buckets will therefore have been at least the frequency that she was required to replenish flowers. We resolve this dispute by what we say in paragraph 153 of appendix 2 on page 121 below. In doing so, we found what the respondent said in response to paragraphs 19.2.37 and 19.2.38 of the EVJD for Ms Williams to be persuasive. Stock rotation – EVJD 20.1.2, 20.1.4, 20.1.6, 20.1.9 and 20.1.10

[282]We saw no need to add references to further documents relating to the need to rotate stock, as invited in paragraph 24 on page 6 of the Leigh Day claimants’ application for reconsideration. No reason for adding them was stated, and in any event they were plainly already incorporated by being referred to in relation to the work of Mrs Worthington, so that they were incorporated in our statement of facts about the work of a replenisher in the position of Ms Williams, not least because of our conclusion that it was the tasks which the employees were given to do and not the manner in which they did them that was relevant. Working conditions during deliveries and replenishment – EVJD 30.20 and 30.21

[283]What we say in paragraphs 40-48 above applies here. On reconsideration we saw no reason to change what we say in paragraph 284 on page 152 of our second reserved judgment. We add here, however, that what was said in paragraphs 30.20 and 30.21 of the EVJD for Ms Williams was in one sense obvious in the sense that the assertions were about the consequences of doing the things that a customer Case Numbers: 3304495/2018 & others 78 assistant in an Express store did or might be required to do. However the content of those paragraphs depended in some respects on the proposition that Ms Williams assisted with unloading deliveries. If she had done so, however, then she would in practice have been exposed to the elements when she did so, but then so would any other customer assistant in an Express store who did that, and the fact that she could have been required to assist with unloading deliveries was in our view a relevant fact. The conditions in which a customer assistant working in an Express store worked were more clearly discernible from the work of Ms Garrod, whose work included receiving deliveries. As we say in paragraph 19 of appendix 6 on page 178 below, those conditions were discernible largely from a combination of C7/215 and the section of the video at D9/544 to which we refer there. We add that the application of what we will call common sense ought to fill any gaps in the picture left by those documents. Ms Cannon Clearing and organising the pre-sort area – EVJD 116-118

[284]We did not say in paragraph 106 on page 208 of our second reserved judgment that what was in the training materials to which we referred there stated in terms the things that were stated in all of the paragraphs of the EVJD to which we referred there. The paragraph was in fact self-explanatory. However, on reconsideration we have addressed the disputes in relation to paragraphs 116-118 of the EVJD for Ms Cannon in paragraphs 44-52 of appendix 3 on pages 137-139 below. Process of pre-sorting – EVJD 120(a), 121, 123 and 177(e)

[285]This heading referred to only four of the six things in relation to which in the passage below it the Leigh Day claimants said we needed to make specific findings of fact. We therefore now refer to those six things in turn. At EVJD 120(a), the need for knowledge to differentiate between essentials and hanging items

[286]The Leigh Day claimants complained in paragraph 27a of their application for reconsideration that as a result of the conclusion which we stated in paragraph 106 on page 208 of our second reserved judgment, we did not specifically refer to “the need for knowledge to differentiate between essentials and hanging items” as stated in paragraph 120(a) of the EVJD for Ms Cannon. What the Leigh Day claimants said in paragraph 27a of their application for reconsideration failed to take into account the fact that we were, in our second reserved judgment, resolving only those disputes the outcome of which might be material to the determination of the demands of the work of a person doing the work of Ms Cannon. The dispute in regard to paragraph 120(a) was not whether or not Ms Cannon had to “use her knowledge to differentiate between essentials and hanging items”, as the respondent accepted that there was no express marker to “assist in differentiating Essentials from Hanging items”. The disagreement between the parties was whether or not it was, as stated by the respondent in its proposed words for paragraph 120(a) of the EVJD, “usually self- Case Numbers: 3304495/2018 & others 79 evident as Essentials tend to be multi-packs of items such as pants and socks.” So, the dispute was whether it was self-evident. The submissions on behalf of Ms Cannon, however, were simply that we should accept her evidence that she needed product knowledge. That was not in dispute, as the respondent accepted it.

[287]However, what Ms Humphries said about the situation was helpful. She said this in paragraph 180 of her first witness statement (at E4/9/40). “To sort the clothing, Janice and her F&F colleagues looked at one of each individual item to determine whether it was an Essential or Hanging item, and whether W/M/C. The categorisation was usually clear, as Essentials tended to be multipacks of items such as underwear or socks. When Janice was unable to categorise the item immediately, which I expect occurred no more than once every three months, she checked the item’s swing ticket.”

[288]We have resolved this dispute by what we say in paragraph 53 of appendix 3 on pages 139-140 below. At EVJD 121, stock getting wet (the Tribunal comments at §106 that the impact of falling rain is ‘obvious’, but this is nonetheless a relevant job fact for the IEs’ assessment of demands)

[289]In paragraph 27b of their application for reconsideration, the Leigh Day claimants said that we had failed to deal with what was said in paragraph 121 of the EVJD for Ms Cannon about “stock getting wet”. The submission in paragraph 27b was this: “the Tribunal comments at §106 that the impact of falling rain is ‘obvious’, but this is nonetheless a relevant job fact for the IEs’ assessment of demands”.

[290]We referred in paragraph 106 on page 208 of our second reserved judgment to the fact that there was a risk of the stock getting wet. That certainly was obvious. But in fact it was not denied by the respondent. The dispute was about the impact, which the respondent accepted, as it proposed these words for paragraph 121: “Occasionally, no more than once every three months, when it is raining, the stacks of trays and cages can arrive into the warehouse wet, albeit that during the Relevant Period the floor was never as wet as is pictured due to wet delivery containers).”

[291]It is true that the respondent there failed to include the words proposed by the claimants: “When this happens, JH must exercise care to avoid products getting wet.” But that too was obvious. We did not say that it was wrong; only that we did not need to resolve the dispute. When reconsidering this issue, we looked again at what Ms Humphries said in paragraph 181 of her first witness statement, at E4/9/41, which was this. “Occasionally, no more than once every three months, when it rained, some of the delivery containers arrived in the Warehouse wet on top. However, since all Case Numbers: 3304495/2018 & others 80 the clothing arrived packaged, any water did not damage the clothing. Janice and the other F&F colleagues therefore did not need to exercise particular care to avoid the clothing being damaged by any rainwater, contrary to paragraph 121 of the EVJD.”

[292]We thought, on reconsideration, that it was significant that the products were packaged, so we looked at the only photograph that we had before us which might help us to see the impact of it being wet. It was at C4/1/112. The only significant thing said in paragraph 121 of the EVJD for Ms Cannon was that (as recorded in the Leigh Day claimants’ closing submissions) “When this happens, JH must exercise care to avoid products getting wet.” If the products were sealed then that would not be applicable. The photograph at C4/1/112 did not show whether or not the products were sealed. It was originally asserted at C4/1/28 that “When Pre-sorting a wet delivery where JH must exercise care to avoid water staining the items.” Accordingly, that was resiled from by the time of closing submissions. We asked ourselves whether it would it be a problem for the respondent if a piece of clothing got a few drops of water on it, and we concluded that it would be.

[293]We have therefore taken the impact of products arriving in packaging which was wet below, in paragraphs 54 and 55 of appendix 3 on page 140 below. At EVJD 123, the requirement to empty trays

[294]In paragraph 27c of their application for reconsideration, the Leigh Day claimants said that we had failed to deal with what was said in paragraph 123 of the EVJD for Ms Cannon about “the requirement to empty trays”. We originally saw no need to resolve a dispute about that requirement, as the respondent was reported in the Leigh Day claimants’ closing submission on that paragraph to have agreed that Ms Cannon “emptied trays to” do what was referred to in paragraph 123 of the EVJD. However, on reconsideration, we saw that the respondent had not in fact agreed that, and submitted in its closing submissions that as a matter of fact there would always have been enough empty trays for there to be no need for Ms Cannon to empty one.

[295]That was at least possibly a dispute about a site-specific issue. However, it was (we inferred from the passage in Ms Humphries’ first witness statement which we set out in the next paragraph below) agreed that there was a possibility that a replenisher would have to empty trays. What Ms Cannon said about the issue in paragraph 99 of her witness statement (at E1/4/32) was as follows. ‘Paragraphs 123 to 127 of my EVJD describe how I prioritise trays with mostly Hanging items at the start of the Pre-sort, and I do that so that I can decant those items onto rails and therefore free up trays which I will need to sort Essentials into. Tesco have summarised this as I “emptied trays”. This summary is too simple and does not reflect the prioritisation and problem-solving involved. I need to have 4 empty trays for Pre-sorting Essentials, and I cannot simply empty trays of Essentials onto the floor of the warehouse to get these empty trays. Therefore, I have to select trays with mostly Hanging items which can be decanted onto rails, and/or rearrange the contents of trays so that I have Case Numbers: 3304495/2018 & others 81 some empty ones to work with. Tesco have described the process I followed as “unnecessary” and not a requirement/expectation, but this is how we freed up trays in practice, and I do not think there was any other way of doing so. In paragraph 124, it states that I “stop at each stack and stand on tip-toe to look through the handle hole to gauge whether the contents is largely Essentials or Hanging items”. This is generally what I would do to identify trays that would be easiest to empty, but if I can't tell from that initial look, then I will pull the tray halfway down and flick through the contents.’

[296]What Ms Humphries said in that regard was in paragraph 184 of her first witness statement, at E4/9/41, which was this. “To sort Essentials into trays, Janice could either use empty trays within the F&F Warehouse or use trays she had emptied from the delivery. She was not required to empty the full delivery trays first, as suggested at paragraph 123 of the EVJD.”

[297]That was on one view contradictory, it appeared to us. However, the nub of the issue was the order in which an F&F customer assistant would need to do things. If all that was necessary in this regard was to pre-sort by putting the contents of some trays onto rails in order to empty the trays, then it was about whether the customer assistant had to think about the order in which the work was done. Such thought was, we concluded, required. We have therefore dealt with this issue in paragraphs 44, 45 and 57 of appendix 3 on pages 137 and 140 respectively below.

[298]We add that a customer assistant who was not tall enough to be able to see something as described by Ms Cannon in the passage of her witness statement that we have set out in paragraph 295 above could use a kick stool and would not need to stand on tiptoe. That also had to be taken into account, which we do in paragraph 57 of appendix 3 on page 140 below. At EVJD §177(e), the disposal of plastic waste in the plastic waste cage

[299]The dispute here was about whether or not Ms Cannon (not, it will be recalled, any F&F customer assistant, but Ms Cannon) needed to stand on tiptoes in order to throw plastic waste into the waste cage. The respondent said that the job could be done by a colleague of Ms Cannon or Ms Cannon (presumably so that the frequency with which Ms Cannon might do it was halved) and that it was not necessary to stand on tiptoe to do it: rather, it was possible to put one’s hands through the open sides of the cage to do it.

[300]We did not resolve this dispute in our second reserved judgment because we could not see why it needed to be resolved. On reconsideration, we were able to see why it was maintained but we could see that we might be unable reliably to conclude that a customer assistant in the position of Ms Cannon needed to stand on tiptoe to push down the waste in the waste cage. That was in part because the waste cage might vary, but it was also because if the respondent used waste cages which had gaps in their sides then what the respondent was saying (which was, we saw, fully supported Case Numbers: 3304495/2018 & others 82 by Ms Humphries’ evidence in paragraph 220 of her first witness statement, at E4/9/47) was cogent.

[301]Neither party pointed us towards a picture of a waste cage. We had a look at the photographs at the end of the EVJD for Ms Cannon and saw that at C4/1/114 there was such a photograph. It showed that there was space for a hand to be put into the cage from the side, but it seemed at least possible that sometimes it would be necessary to push down from the top on the contents of the waste cage. We therefore concluded that that was the finding of fact that we should make, and we do that in paragraph 65 of appendix 3 on page 142 below. At EVJD 182(a), the impact of tight running rails on the task of stripping

[302]In paragraph 182(a) of the EVJD it was said that “the limited number of running rails available to Pre-sort the items onto, means JH must pack them as tightly as possible, this in turn makes it hard for JH to Strip the clothes of their plastic packaging without knocking clothes Stripped of their plastic covering to the floor”.

[303]The respondent’s response was this: “1. Ms Humphreys’ evidence in her statement and in [XX] is that there were generally plenty of running rails, and that JH was certainly not required or expected to pack clothing so tightly on the rails that it was difficult to remove their plastic covering [{E4/9/47}, paragraph 222], (Day 18 p.150, line 12). To do so would have been counterproductive and inefficient. 2. The EVJD itself makes clear at paragraph 164 that JH only very occasionally ran out of running rails, during events such as Christmas, and that in those cases JH used empty roll-cages or racking to hang clothing.”

[304]In our initial consideration of the matter, after which we issued our second reserved judgment, it appeared to us that we did not need to resolve that dispute because the consequence of clothing falling onto the floor without plastic covering was a problem for the respondent, and not something which caused difficulty to the claimant. On reconsideration, we could see that the nub of the issue was whether or not an F&F customer assistant would as part of her work have to squash clothes onto a running rail. We therefore concluded that we should determine the dispute. We concluded that the respondent’s response was cogent, and we agreed with it. Accordingly, for the reasons given in paragraph 65 of appendix 3 on page 142 below, we did not include paragraph 182(a) of the EVJD as quoted in paragraph 302 above in our statement of the work of Ms Cannon in that appendix. At EVJD 527-528, leaking piping and wet packaging; again, regardless of whether the impact is obvious, these are relevant job facts Case Numbers: 3304495/2018 & others 83

[305]Given our overall approach to what was the work of Ms Cannon, namely what she was required to do and the conditions in which it was required to be done, we initially concluded that the dispute here did not need to be resolved because the respondent accepted that there was a water leak in the ceiling above the F&F floor in the warehouse, so that as a matter of fact it was agreed that what Ms Cannon asserted about the risk of water affecting her work was true. The dispute was about the impact of the water when it affected her work. Therefore, we did not in our second reserved judgment say that paragraphs 527 and 528 of the EVJD for Ms Cannon were not to be taken into account. What we say in paragraphs 40-44 above applied to the disputes maintained in regard to the content of paragraphs 527 and 528 of the EVJD.

[306]On reconsideration, we revisited the issue. We now point out that the respondent accepted the truth of the proposition that there was occasionally a leak in the pipe in the ceiling, as stated in paragraph 527 of the EVJD for Ms Cannon but said that it was mitigated by a bucket being put below it by someone other than Ms Cannon. The claimants asserted that there was a leak regularly and not occasionally, but failed to say anything about its impact. If it had no impact then the fact that there was a leak was of no importance.

[307]As for the impact of water on Ms Cannon’s clothing, which was the thrust of paragraph 528 of the EVJD for Ms Cannon, the respondent accepted that there was such an impact, but argued that it was less than as claimed. We concluded that what Ms Cannon said in paragraphs 219-221 of her first witness statement (at E1/4/69-70) was cogent. We have therefore incorporated paragraph 528 of the EVJD as advanced by the claimants in paragraph 54 of appendix 3 on page 140 below. Appendix 8: Comparators Assembly

[308]In paragraph 29 of their application for reconsideration, the Leigh Day claimants asked us to clarify whether or not D9/234, which expressly applied to assembly in a fresh DC, was “not incorporated in the EVJDs of the ambient DC comparators”. That was surprising, since in no place in our second reserved judgment did we say, or imply, that it did, as such. Of course, if it had something in it that applied also to assembly in an ambient DC then it could have been applicable, but the key was not what was incorporated in the EVJDs of the comparators. Rather, what was important was the work of those comparators as found by us, and in appendices 7-14 below we make findings of fact in that regard. We make almost all of our findings of fact about the work of assembly in an ambient DC in appendix 7 below, and for the avoidance of doubt, we do not in that appendix refer to and therefore incorporate D9/234. Nor do we refer to D9/234 in appendices 8-10, which relate to the other ambient DC comparators. Cost of MHE Case Numbers: 3304495/2018 & others 84

[309]On reconsideration, we realised that the cost of the MHE used was relevant, and we have therefore included it in our statements of the work of the comparators in appendices 7-14 below. Pallet-to-pallet assembly

[310]In paragraph 31 of their application for reconsideration, the Leigh Day claimants asserted that, contrary to what we indicated in paragraphs 108-113 on pages 419- 421 of our second reserved judgment, we should not incorporate D9/189 into the EVJDs of the ambient DC comparators. That was on the basis that the document related to “pallet-to-pallet assembly in ambient DCs” and as far as the Leigh Day claimants were aware, “this is not a task that the ambient DC comparators performed”. What we said in paragraphs 108-113 on pages 419-421 of our second reserved judgment was about the work of the comparators (the question of fact on which we made many determinations in our second reserved judgment, but not enough which is why we have included 14 appendices to this document). We were not in those paragraphs addressing the question whether or not a particular document should be incorporated in an EVJD. That is for the reasons stated principally in paragraphs 40-48 above.

[311]In any event, what we said in paragraphs 108-113 of our second reserved judgment was of general application and was intended to be read as such. D9/189 contained many helpful statements about risks which applied to assembly into both a cage and onto a pallet. We add that as far as we could see, the only difference between assembling to a pallet and assembling to a cage was that the destination was different. The use of different types of MHE

[312]In paragraph 32 of the Leigh Day claimants’ application for reconsideration we were invited to state “which MHE is used by each comparator, such that only the relevant information is incorporated into each EVJD”. The proper issue in our view was what MHE might have been used, not what was in fact used by each comparator. However, we accepted that resolving the question of what MHE was used by each comparator was something which would assist the IEs as they needed to be able to tie their analysis to a particular MHE, and we have resolved that question via appendices 7-14 below. Nevertheless, whether that was going to affect our conclusion on the value of the work for the purposes of section 65(6) was another matter, on which we will be inviting submissions at the final hearing. Stacking of cages – Wayne Jones EVJD 6.95 – 6.127

[313]In paragraph 34 of the Leigh Day claimants’ application for reconsideration, this was said. “The Leigh Day Claimants understand that Mr Jones’ EVJD 6.95 – 6.127 should be deleted and replaced with S2J appendix 8 §58-66. While not strictly an Case Numbers: 3304495/2018 & others 85 application for reconsideration, we would be grateful for confirmation or clarification of this point.”

[314]This query was based on what we regarded as a misapprehension of our task given what we say in for example paragraphs 40-48 above. Having said that, we have not expressly incorporated in appendix 7 below any of paragraphs 6.95-6.127 of the EVJD for Mr Jones. That was in part because we found them to be a far less helpful statement of the aspects of the work of an assembler than the training materials, principally those to which we refer in paragraph 27 of appendix 7 on pages 208-209 below. It was also because some parts of paragraphs 6.95-6.127 were rather obvious, such as paragraphs 6.100 and 6.101. However, as we say in paragraph 54 above, we have not excluded from the IEs’ consideration anything that the parties have agreed, including by agreeing part of a paragraph of the EVJD. We record here that the video at D9/543 entitled “Cage Stacking Routines” was in our view very much more informative than the words of the EVJD which described the subject-matter of the video and that(1) the video supported the proposition that the work of an assembler is, as it was said in the opening 44 seconds of the video, hard, but

(2) the part of the video 3 seconds after the point 35 seconds in contradicted the propositions that Mr Jones (a) was able to select the cage into which he was going to put products, or (b) otherwise had any discretion in regard to the order in which he put products into cages (except in relation to the need to stack the cage safely). The whole of the video was very helpful in showing what was involved in the work of an assembler. So was the whole of D9/187, to which we refer in paragraphs 56, 98 and 106 above and paragraph 9 of appendix 7 on page 204 below. ‘Monotony of assembly’ and weights of UoDs – Wayne Jones EVJD 6.200, 6.201 and 6.212-6.215

[315]What we say in paragraphs 103-104 above meant that the query raised in paragraphs 35-37 of the Leigh Day claimants’ application for reconsideration was apt. For the reasons stated in paragraphs 103-104 above we have reconsidered what we said in paragraph 272 on page 456 of our second reserved judgment. The result is what we say in paragraphs 51 and 73 of appendix 7 on pages 213 and 220-221 respectively below. Miscellaneous disputes on Mr Jones’ EVJD

[316]Paragraph 38a of the application for reconsideration: We did not deal specifically with paragraph 6.40 of the EVJD for Mr Jones but it was covered by what we said in paragraph 64 on pages 23-24 of our second reserved judgment.

[317]Paragraph 38b of the application for reconsideration: What we say in paragraphs 135-139 above resolves this query about paragraph 6.42 of the EVJD for Mr Jones.

[318]Paragraph 38c of the application for reconsideration: The respondent’s internal highway code plainly applied to the work of an assembler, so paragraph 6.73 of the EVJD for Mr Jones was unnecessary given the incorporation of that highway code via Case Numbers: 3304495/2018 & others 86 paragraph 23 of appendix 7 on page 207 below, where we refer also to several highly informative videos.

[319]As for the content of paragraph 6.74 of the EVJD for Mr Jones (concerning “optimum stopping locations for his Assembly Truck”), what we say in paragraph 46 of that appendix, on page 212 below, in effect answers the query raised by the Leigh Day claimants in paragraph 38c of their application for reconsideration about paragraph 6.74 of that EVJD.

[320]Paragraph 38d of the application for reconsideration: We concluded that the AMC spoke for itself and that both what was said in paragraph 6.130 of the EVJD for Mr Jones and what the Leigh Day claimants said in response were superseded by the documents (including where relevant the AMC guide) which showed what the AMC did. As was almost always the case, the training materials spoke for themselves and much more effectively than attempts to describe their effects or the way in which a piece of equipment operated.

[321]Paragraph 38e of the application for reconsideration was in these terms. ‘EVJD 6.165, “Whenever a P1 was entered by the job holder, the system deployed a FLT driver to replenish the Pallet. If a FLT driver was called to replace a Pallet in an Aisle unnecessarily, that could lead to that Aisle being closed or becoming more heavily congested and the overall Assembly operation being disrupted for no good reason. Accordingly, the job holder investigated unavailable stock carefully as described before selecting P1 on the AMC.” The Leigh Day Claimants understand from S2J appendix 8 §259 that a need for accuracy in stock count is accepted. However, the majority of EVJD 6.165 does not relate to the work of the jobholder and there remains an outstanding dispute as to whether this paragraph should remain (in whole or in part).’

[322]What we say in paragraphs 40-48 above applies here. We address the question whether the content of paragraph 6.165 of the EVJD for Mr Jones was relevant in paragraph 57 of appendix 7 on page 215 below. Dekitting when loading – Martin Hornak EVJD 6.96

[323]This query (stated in paragraph 41 on page 13 of the Leigh Day claimants’ application for reconsideration) was whether we accepted the claimants’ proposition that Mr Hornak did the work of dekitting as part of the work of loading “rarely” as opposed to what the respondent asserted, which we thought (as recorded by us in paragraph 337 on page 470 of our second reserved judgment) was “occasionally”. Looking back at what we said and decided in relation to paragraph 6.96 of the EVJD for Mr Hornak, we remembered that we had not made a decision on the frequency because we had found the respondent’s evidence on it unsatisfactory and lacking in cogency. We remembered that we had also thought that it was highly unlikely to matter whether or not we classified the work of dekitting as being done occasionally or rarely. That was because the demands, physically, of that work were no different in practice from the demands of moving cages generally. Case Numbers: 3304495/2018 & others 87

[324]However, on reconsideration, we concluded that we should come to a conclusion on the issue of frequency here. Having examined with care the evidence before us described in paragraphs 409-431 on pages 488-494 of our second reserved judgment, we concluded that the respondent had not proved the frequency on a balance of probabilities. As a result, we accepted the claimants’ case on it: Mr Hornak did that task of dekitting rarely. That conclusion is incorporated via paragraph 24 of appendix 8 on pages 227-228 below. Loader’s responsibility for weight of trailer – Mr Hornak EVJD 6.109

[325]What we said (in paragraph 442 on page 496 of our second reserved judgment) about paragraph 6.109 of the EVJD for Mr Hornak was, we thought, clear and cogent. The Leigh Day claimants asked us, in paragraph 44 of their application for reconsideration, to “reach a concluded view as to whether Mr Hornak did assess the combined weight of the load when loading a trailer, and if so whether this amounts to a relevant job fact to be included in Mr Hornak’s EVJD for consideration by the IEs”.

[326]Whether or not Mr Hornak did in fact assess the combined weight of a load when loading a trailer was not the relevant question. The relevant question was whether he was required by the respondent to do so as part of his work for the purposes of section 65(6) of the EqA 2010. We had recorded in paragraph 442 on page 496 of our second reserved judgment that it was not said in the training materials that a loader was required to consider whether the intended load might be too heavy for the intended trailer. What we said at the end of that paragraph (which was that a loader might raise with a manager the possibility of a load being too heavy for the trailer into which it was to be put and that the IEs could take that into account if they thought that it was relevant) was, we now accept, not helpful. We resolve this dispute by what we say in paragraphs 37 and 104 of appendix 8 on pages 230 and 240 respectively below. “Burden of accountability and responsibility” – Mr Hornak EVJD 6.363-6.377

[327]In contrast, on reconsideration, we concluded that what we said in paragraph 542 on page 520 of our second reserved judgment was wrong. We concluded on reconsideration that in paragraph 542 on page 520 of that judgment, we described circumstances which affected, or were part of, the demands of the work of any DC operative who drove any kind of MHE, so that the work of an assembler driving a LLOP was done in the conditions which we stated in paragraph 542. Accordingly, in our judgment on reconsideration, the following factors were relevant as part of the conditions in which a loader (or, in fact, the driver of any MHE, with the risks varying according to the size and weight of the MHE) worked when driving a LLOP: Case Numbers: 3304495/2018 & others 88327.1 there might be particularly severe consequences financially for the respondent of an error made by the loader (or any other driver of a piece of MHE); and

327.2 a slight error of judgment in the driving of for example a LLOP could cause much damage and disruption financially, or injure or kill a fellow-employee. The Harcus claimants’ application for reconsideration

[328]The Harcus claimants’ application for reconsideration was made on three bases: two factual ones, and the general one to which we refer in paragraph 12 above. The Harcus claimants’ application was to the effect that it was incumbent on us not to permit the IEs to take into account things which we concluded were only of possible relevance.

[329]As we say in paragraph in the first sentence of paragraph 53 above, we accepted on reconsideration that we should as far as possible make firm decisions on all issues of relevance, and we have done that in the appendices below.

[330]The Harcus claimants’ application to reconsider the two factual findings that we had made was also well-founded. We accepted that we had made a mistake in relation to reach forklift trucks and that the correct conclusion was as stated in paragraph 16 of the Harcus claimants’ application for reconsideration, namely:330.1 there were two types of forklift truck: reach trucks and counterbalance trucks;

330.2 reach trucks were forklift trucks which had forks which were able to extend upwards by several metres in order to reach to the top of high racking, typically used in ambient rather than fresh DCs;

330.3 reach trucks were powered by batteries;

330.4 counterbalance trucks were forklift trucks which had forks which were significantly less tall and did not extend so far upwards;

330.5 counterbalance trucks were not all powered by gas: some (used outdoors at Didcot DC) were powered by gas and some (used indoors at Didcot DC) were powered by batteries;

330.6 reach trucks were not used at Didcot DC (a fresh DC);

330.7 the forklift trucks which Mr Young used at Didcot DC were counterbalance trucks; the counterbalance truck which he used indoors was battery-powered and the counterbalance truck which he used outdoors was powered by gas; and

330.8 Mr Young did not use a reach truck. Case Numbers: 3304495/2018 & others 89

[331]The second factual area where we erred was in relation to the split in percentage terms, or alternatively simply the split, between the kinds of work done by the comparators. We took into account the charts which the Harcus claimants had prepared for the fresh DC comparators, but we did so properly only in relation to two of them: Mr Pustula and Mr Young.

[332]Those charts were based on the same data as the summaries at G94.1-G94.8. We accepted all of the documents at G94.1-G94.8 as being drawn from the respondent’s records and therefore as being part of the factual circumstances of each comparator.

[333]We therefore, on the same basis and consistently, also accepted all of the charts prepared by the Harcus claimants in relation to the fresh DC comparators, namely at D1/7.1, D2/9.1, D3/10.1, and D4/9.1. In conclusion; a direction

[334]We are hoping that we have now, in appendices 1-14 below, stated all of the relevant facts for all of the sample claimants and their comparators. We have, however, again made findings without hearing from the parties on our proposed conclusions. We concluded that it was going to be most effective, and most cost-effective, to make those findings without holding a further hearing and instead to give the parties a further opportunity to tell us if they think that if we have erred in making those findings to such an extent that we should reconsider them. In addition, what we have sought to do is to put into a structured form statements of the work of the sample claimants and their comparators, which involved in some cases taking parts of the EVJD in question out of the order in which it appeared in the EVJD. We may in doing that have obscured rather than clarified the position. There are in all probability slight textual inconsistencies and errors in the following 14 appendices, but it was neither proportionate nor in the interests of justice for us to delay the issuing of this reconsideration judgment in order to maximise the chances of avoiding such inconsistences or errors. Obviously, there is a right to ask for a reconsideration in any event, but we say here that we would be willing to reconsider with alacrity any apparent factual error or omission, not least because of the need not to prejudice preparation for the final hearing. Having said that, we suspect that if we have erred then it is most likely that it will be by way of omission, and if that is the case then all we will need to do is to agree to the addition of inadvertently omitted relevant factual material. However, finding any error or omission may not be easy. Nevertheless, we direct the parties to put any further application for reconsideration before us within 42 days of the sending of this judgment to them, but on the basis that if a further omission becomes apparent subsequently then a further application for reconsideration in that regard can be made (as long as it is made promptly, i.e. as soon as is reasonably practicable after the omission has become apparent). Approved by Employment Judge Hyams Date: 30 May 2025 Case Numbers: 3304495/2018 & others 90 Sent to the parties on: ...30 May 2025 ....... For Secretary of the Tribunals Case Numbers: 3304495/2018 & others 91 Appendix 1 The work of Mrs Worthington and the conditions in which she did it An overview of Mrs Worthington’s work and the times when she was on the shop floor

[1]Paragraph 1 on page 30 of our second reserved judgment is incorporated here.

[2]Paragraph 6 on pages 31-32 of that judgment is incorporated here. What a replenisher was required to do by way of customer service (the following four paragraphs are applicable to the work of all six sample claimants)

[3]C7/140, showing what the respondent required its customer assistants to do by way of interaction with customers, is incorporated here. We add that we concluded that if a customer had a clubcard in his or her hand then there would be no requirement (i.e. contrary to what was said at the top of the right hand side of page C7/140/10) to ask them whether they had a clubcard. (C7/140 was one of a number of documents saying the same thing, but since it came with some trainer’s notes, we chose C7/140.)

[4]C7/143/3 stating (apart from under the heading “We use our scale for good”) the values in accordance with which the respondent wanted its customer assistants to act, is incorporated here.

[5]C7/124, showing what knowledge the respondent required of its customer assistants, is incorporated here. It will of course have been updated from time to time, but that was in our view immaterial: what was material was that the claimant and other customer assistants were required as part of their work to be aware of the services which the respondent offered from time to time.

[6]Pages 2, 4-17, and 19-24 of C7/145 are incorporated here on the basis that they show (if and to the extent that it is was not already clear from what was said in the documents referred to in the three preceding paragraphs above) what the respondent required of customer assistants by way of customer service.

[7]What we say in paragraphs 8 and 9 on pages 33-34 of our second reserved judgment is incorporated here. The relevant impact of working on the shop floor

[8]The words which we have set out at the end of paragraph 13 on page 35 of our second reserved judgment are incorporated here. Those words were applicable to all of the sample claimants. Supervision Case Numbers: 3304495/2018 & others 92

[9]The words of paragraph 18 on page 37 of our second reserved judgment (without the words in square brackets: the same is true of any further part of our second reserved judgment which is incorporated below: the words in square brackets are not incorporated) are incorporated here. The words “[t]he JH required little supervision and asked for little by way of assistance from managers” were in our view a fair statement of the extent to which an experienced customer service assistant was supervised. The relevant conditions in which a customer assistant had to work (the following three paragraphs are applicable to the work of all six sample claimants) Risk of friction or worse from customers

[10]The circumstances described in C7/705 were part of the conditions in which customer assistants such as Mrs Worthington were required to work, as applicable. The statistic on the first page of that document (“Last year there was over ½ million incidents in our Convenience stores”) plainly applied only to the stores in which Ms Williams and Ms Garrod worked, but, taken together with C7/147/5-6, it showed in our judgment that there was a real, constant, risk of a possibly negative act by a customer for all of the sample claimants when they were working on the shop floor, no matter the store. However, the likelihood of such an act might diminish when there were fewer customers in the store, although even then that might not be the case at night.

[11]C7/147/2-15 are incorporated here on the basis that they are relevant as showing some of the conditions in which a customer assistant was required by the respondent to work. So is the related document C7/135. In regard to theft, the highly informative videos at C7/707 and C7/711 are incorporated here. Those videos showed, even more than C7/147/9, to which we referred in paragraph 12 on page 35 of our second reserved judgment in relation to paragraph 382 of the EVJD, that the respondent’s opposition to the words of that paragraph of the EVJD was wrong.

[12]What we say at the end of paragraph 10 on page 34 of our second reserved judgment is incorporated here. The frequency with which Mrs Worthington’s work was interrupted by customers

[13]Paragraph 69 on page 50 of our second reserved judgment is incorporated here. The temperatures in which Mrs Worthington mostly worked

[14]Mrs Worthington worked for the majority of her time when on the shop floor in the area of the chiller cabinets, the ambient temperature around which was 16 degrees Celsius. The temperature in those cabinets was between 1 and 5 degrees Celsius, and she reached into those cabinets when replenishing dairy and other chilled products Case Numbers: 3304495/2018 & others 93

[15]Mrs Worthington was on a number of occasions during the working day in the dairy chiller at Woolton, the temperature of which was also between 1 and 5 degrees Celsius. The respondent’s cold chain policy

[16]What we say in paragraph 24 on page 38 of our second reserved judgment is incorporated here. It applied also to the work of any customer assistant who replenished fresh produce. Replenishment tasks Working with a delivery

[17]Paragraphs 26-36 on pages 39-43 and 39-40 on pages 44-45 of our second reserved judgment are incorporated here. Products had to be placed in the appropriate place in the store’s premises (the “appropriate delivery holding area” as stated on C7/726), as illustrated by what we say in paragraphs 37 and 38 on pages 43-44 of that judgment. Cages, weights of UODs, and what was required to be done by way of moving stock from the store’s back door

[18]Paragraphs 41-46 on page 45 of our second reserved judgment (concerning cages) are incorporated here.

[19]Paragraphs 60-67 on pages 47-49 of that judgment are incorporated here.

[20]Paragraphs 47-49, 51-53 and 55-56 on pages 45-47 of that judgment (concerning green trays and dollies) are incorporated here, read with C7/142/10 showing the manner in which Mrs Worthington was (and of course all customer assistants were) required to move stacks of trays.

[21]Paragraphs 261-262 of the EVJD for Mrs Worthington as it stood by the time of closing submissions, namely as proposed by the claimants (any reference below in this appendix to a part of “the EVJD” is to a part of that EVJD unless otherwise stated), concerning “merchandisable units” (“MUs”), are incorporated here.

[22]Paragraphs 221-225 of the EVJD (describing what happened when there was a stock take) are incorporated here.

[23]Paragraph 68 on page 49 of our second reserved judgment (concerning milk deliveries) is incorporated here. Moving stock from the warehouse to the shop floor

[24]Paragraphs 253-256 of the EVJD (concerning green trays) are incorporated here. Case Numbers: 3304495/2018 & others 94

[25]Paragraphs 70 and 72-83 on pages 50-55 of our second reserved judgment, including the training materials referred to in those subparagraphs, are incorporated here. Paragraph 83.9 should be read also with C7/185, which is accordingly incorporated here.

[26]In so far as C7/142 (showing how customer assistants and all other staff were required to work in the store, and how they were trained to do so) is not already incorporated by what we say in the preceding paragraph above, it is incorporated here and in the following five appendices. So is the rather informative video at C7/668, entitled “Working Safely”. It was in respect of lifting and moving boxes of products the equivalent of the videos at D9/538 and D9/540. C7/668 included a section on using a kickstool correctly.

[27]To the extent that C7/823 (expanding on what is in C7/142, although in some respects it merely repeats what is in C7/142) is not already incorporated, it is incorporated here. In connection with C7/823/51, paragraphs 218-219 of the EVJD are incorporated here.

[28]C7/214 (concerning cleaning and hygiene in relation to the back door and the warehouse of the store) is incorporated here. Replenishment of chilled foods

[29]Paragraphs 176-187 of the EVJD (concerning the replenishment of “food to go”, eggs, and milk) are incorporated here. Replenishment of groceries or frozen foods

[30]Paragraph 188 of the EVJD (concerning twice-yearly replenishment by Mrs Worthington of grocery or frozen foods) is incorporated here. Flowers

[31]Occasionally, Mrs Worthington replenished flowers; she was required to do so as shown by C7/469. Paragraph 193 of the EVJD (concerning how flowers arrived at the store and how they needed to be dealt with on arrival) is incorporated here. Out of stock queries

[32]Paragraph 161 of the EVJD is incorporated here. Price reductions

[33]Paragraphs 331-2, 334 and 336-365 of the EVJD, read with what we say in paragraphs 119-125 on pages 64 and 65 of our second reserved judgment, are incorporated here. Repairing packaging where possible; wasting products Case Numbers: 3304495/2018 & others 95

[34]We concluded that the following training materials showed at least the main elements of the work of a dairy replenisher in relation to ensuring that only stock of a saleable quality was on display:34.1 C7/119 (to which we refer for example in paragraph 109 on page 62 of our second reserved judgment), entitled “Know Your Stuff for Dairy, Meat and Poultry – Waste”; and

34.2 C7/188 (to which we refer for example in paragraph 83.10 on page 55 of our second reserved judgment; for the avoidance of doubt, we now record that although C7/188 was stated expressly to apply to Express stores, in our view what was said in it applied to all of the respondent’s stores), entitled “Would I Buy It?”

[35]Paragraphs 324-330 of the EVJD, describing what Mrs Worthington’s work of checking the chiller cabinets and their contents, read with what we say in paragraph 117 on page 64 of our second reserved judgment, are incorporated here.

[36]Paragraphs 214-217 of the EVJD (relating to damaged products and what Mrs Worthington did about them) are incorporated here.

[37]Paragraphs 265-285 of the EVJD (also relating to damaged products, and additionally describing the recording of wasted products), read with what we say in paragraphs 108-111 on page 62 of our second reserved judgment, are incorporated here. Use of the aisles on the shop floor

[38]C7/713 (stating the “The Aisles Are Clear - Days” “guidelines”) is incorporated here, but read with what we say in paragraphs 91-93 on pages 57 and 58 of our second reserved judgment, which we concluded was the way in which the work of replenishing stock in an aisle was required by the respondent (i.e. as a matter of practical reality) to be done in practice. What we say in paragraph 91 on page 57 of our second reserved judgment about the use of a blue top trolley is consistent with what is said at the top of C7/713/2 about the use of such a trolley. We record here, however, that we rather doubted that there was anything extra as far as the demands (within the meaning of section 65(6) of the EqA 2010) of the work of a replenisher were concerned arising from the possibility of using a blue top trolley as a matter of preference.

[39]Paragraphs 94 and 95 on page 58 of our second reserved judgment (concerning the manner in which Mrs Worthington in practice did work, and which we concluded any replenisher doing his or her job would work, in the course of replenishing for example dairy products on the shop floor) are incorporated here. The need to put back in the warehouse stock for which there was no room on the shop floor Case Numbers: 3304495/2018 & others 96

[40]Paragraphs 112-116 of the EVJD are incorporated here, although the crossreferences to other work in paragraph 116 are irrelevant and are omitted and in fact much of the content of those paragraphs was discernible from what was said in the single-page document at C7/264. The fact that C7/264 had at the top of the page “Produce (at night)” did not detract in any way from the relevance here of what was said in it. It was a helpful and coherent overview of the work of produce replenishment. The order in which stock was replenished

[41]Paragraph 96 on page 58 of our second reserved judgment is incorporated here because it was relevant in that it showed that there was no choice until the critical cage was emptied about what should go out on the shop floor first.

[42]After that cage had been emptied by the stock on it being put on the shop floor, what we say in paragraph 97 on page 59 of our second reserved judgment applied. That paragraph is in any event incorporated here. Point of sale material

[43]Paragraph 89 on page 56 of our second reserved judgment is incorporated here, but we add here to what is said there that C7/447 (“Know Your Stuff For Price Integrity – Types Of Point Of Sale”) was an informative training document showing what point of sale documentation (including “shelf talkers”) was and, via page 15, that even in 2010 (the date of C7/447 was “11/10”), such documentation was printed using a hand-held computer. If Mrs Worthington did the job of printing such documentation then that was in all probability because the respondent was satisfied with her ability to do it, and in the circumstances we concluded that if the respondent required any replenisher to print point of sale documentation then it was part of that replenisher’s work for the purposes of section 65(6) of the EqA 2010 to do it. What was required to be done in relation to promotion ends

[44]Paragraphs 162-173 of the EVJD are incorporated here, read with(1) what we say in paragraphs 99-102 on pages 60-61 of our second reserved judgment (and we thought that C7/350 was probably sufficient for this aspect of the work to be discerned, but concluded that we should incorporate paragraphs 162-173 as well for the sake of completeness), and

(2) C7/447/4. The latter illustrated well both what promotion ends were and how little scope there was for a replenisher such as the claimant to change their layout. What to do with empty cages

[45]When a cage was empty, a replenisher in the position of Mrs Worthington was required to take it to the designated “holding area for recycling and re-usable equipment” as stated at C7/262/6. If the holding area was in the store’s back yard then what was said at the top of that page about the risks arising from that and what Case Numbers: 3304495/2018 & others 97 to do about them was applicable. Given that the respondent did not dispute what was said in paragraph 110 of the EVJD about where empty cages might be put, that paragraph is incorporated here, read with what is said on C7/262/6. Milk returns

[46]Paragraphs 286-289 of the EVJD, read with paragraph 112 on page 62 of our second reserved judgment, are incorporated here. We add now that C1/25 and C7/307/3 materially add to what was said in paragraphs 286-289 of the EVJD and are therefore incorporated here. Waste disposal

[47]Paragraphs 290-292 of the EVJD, read with what we say in paragraph 114 on page 63 of our second reserved judgment, are incorporated here.

[48]Paragraphs 293-295 of the EVJD, read with what we say in paragraph 115 on page 63 of our second reserved judgment, are incorporated here.

[49]Paragraphs 296-298 of the EVJD, read with what we say in paragraph 116 on page 63 of our second reserved judgment, are incorporated here. Particular aspects of the work of a replenisher which were not covered by the training materials Keeping an eye on fast-moving products

[50]Paragraph 130 of the EVJD (which we saw in the course of reconsideration was in fact agreed by the respondent and about which we could find nothing relevant in the training materials before us) is incorporated here. Distances travelled on the shop floor

[51]Because it was likely to be typical of larger stores, we incorporate here what is said in paragraph 104 on page 61 of our second reserved judgment. Serving customers on the checkouts Checkouts

[52]The work of operating a checkout is one with which anyone who shops in a supermarket will be familiar. The summary in paragraph 388 of the EVJD was potentially helpful albeit with the reservation that, as we indicate in paragraph 3 above, a checkout operator would not be required to ask a customer whether or not the customer had a clubcard if the customer had one visible, such as in his or her hand. In addition, while in paragraph 388 it was said that “Serving customers on the checkout involves ... asking whether the customer wants cashback”, the procedure followed in relation to giving cash back was dealt with in paragraphs 502-505 of the Case Numbers: 3304495/2018 & others 98 EVJD, which were a detailed description of what was involved in giving cash back, but it was not said there whether or not the practice of asking about, and if the customer wanted it giving, cash back was current throughout the relevant period. So, the summary in paragraph 388 was in one sense helpful, and in another sense unhelpful.

[53]Similarly, the precise layout of the checkouts at Woolton, which was dealt with in paragraphs 390-394 of the EVJD, was in our judgment irrelevant unless it helped the IEs and us to gauge the demands of a checkout operator. We could not see how it added anything material in that regard. In addition, C7/168/2 and C7/74/2-8 were sufficient to show what form the checkouts and the equipment used in them took at the material times. For the avoidance of doubt, both of those documents (i.e. all of their contents) are incorporated here.

[54]Paragraph 387 of the EVJD as contended for by the claimants in closing submissions is (as we say in paragraph 126 on page 66 of our second reserved judgment) applicable. Adapted to suit this judgment, the position was as follows. At the start of the relevant period, Mrs Worthington was called to serve customers on a checkout (not including Assisted Service Checkouts “ASCs”) most shifts and often more than once a shift. From 2016, she served customers on a checkout around once a week on average. Each time she was called to do so, she spent up to 30 minutes, and between October 2014 and November 2017 an average of 6-7 minutes, processing customer sales.

[55]Paragraphs 395-401 of the EVJD (describing the way in which a customer assistant in the position of Mrs Worthington might be called to help out on the checkouts and what needed to be done by that person when that happened) are incorporated here.

[56]C7/75 (“Know Your Stuff For Checkouts – Delivering Great Service At The Checkouts”) is incorporated here. So is C7/76 (“Know Your Stuff For Checkouts – Great Performance”).

[57]The substance of paragraph 404 of the EVJD as proposed by the claimants (see paragraph 128 on page 66 of our second reserved judgment) read with paragraphs 414, 420 and 421 of the EVJD, is incorporated here, via the following words.57.1 When working on a checkout, a customer assistant was required to be alert to the possibility of helping a customer who needed extra assistance, for example by being directed to the customer service desk if the customer had a product which they wanted to return or to use any of the services which the respondent offered as shown in for example C7/124.

57.2 The customer assistant was required to offer, without being asked, checkout consumables of which a customer might not be aware but which it would help the customer to have, such as a wine carrier. Case Numbers: 3304495/2018 & others 99

57.3 The customer assistant was required to be alert to the possible need to offer the service of carrying a customer’s shopping to the customer’s car, and then to ask a colleague to do that if the customer assistant was not able to do it herself because there was someone else waiting to be served at the checkout.

57.4 The customer assistant was required to be alert to the possibility of a customer leaving some personal property such as a wallet or purse at the checkout, and then to call the customer back or to ask a colleague to look for the customer. If the customer could not be contacted then the customer assistant would be required to ensure (either by doing it herself or asking a manager to do it) that the property left behind was taken to the customer service desk for safe storage.

[58]Paragraphs 407-413 of the EVJD (with the word “occasionally” at the start of paragraph 411: see paragraph 129 on page 66 of our second reserved judgment), concerning damaged products and price enquiries, are incorporated here.

[59]Paragraphs 416-419 and 422-439 of the EVJD (relating to what was involved in operating a checkout) are incorporated here subject to what we say in paragraphs 130-133 on page 66 of our second reserved judgment about frequency.

[60]Paragraphs 440-454 of the EVJD (relating to spillages in the checkout area, changes of mind by customers, till prompts, double-scanning, painkiller sales and the respondent’s bulk purchase policy) are incorporated here, but read in the light of what we say in paragraphs 134-136 on pages 66-67 of our second reserved judgment. For convenience, we now record that the words of paragraph 440 should be “When a spillage occurs on or around the tills, a customer assistant has to decide whether or not she can clean it up herself.” That, of course, is consistent with C7/155, which stated clearly what was involved in “Housekeeping At The Checkouts”, including cleaning.

[61]A checkout operator’s responsibilities in relation to age-restricted sales are stated in C7/13/1-18, C7/15 and C7/190.

[62]Concerning bag-packing, paragraphs 467-470 of the EVJD, read with what we say in paragraph 139 on page 67 of our second reserved judgment, are incorporated here.

[63]Some aspects of paragraphs 472-555 of the EVJD (excluding those which had been deleted by the time of closing submissions, such as paragraphs 530 and 531) described in our view about things which were obviously part of the work of a checkout operator. A good example of a paragraph about something which was obvious is paragraph 503, which was in these terms: “If the customer does want cashback, JH selects to the cashback function on the till and enters the amount requested, up to a maximum of £50.”

[64]Nevertheless, those paragraphs, read with what we say in paragraphs 140-152 on pages 68-70 of our second reserved judgment are incorporated here. Even if they Case Numbers: 3304495/2018 & others 100 were relevant to the work of Mrs Worthington only occasionally (or less), the possibility that the circumstances described in paragraphs 472-555 of the EVJD might arise, was clearly relevant. For the avoidance of doubt, if we have not resolved a dispute maintained in relation to the content of those paragraphs, then it is because(1) in our view its outcome was highly unlikely to affect the IEs’ or our assessment of the demands of the work to which the dispute related and

(2) as a result, we have concluded that the material fact about which the dispute was maintained is what was not the subject of objection from the respondent. That is subject to the qualification that the respondent’s repeated assertions that it was necessary to add words stating that the event in question occurred only “Rarely, given the limited time JH spent on checkout” were unnecessary given that that was implicit. We add that (1) the work of a checkout operator in relation to for example part-payment by a customer with coupons must have been the same no matter where it was done, and (2) some of the disputes concerning the operation of a checkout were maintained in relation to the work of Ms Williams and Ms Garrod. We emphasise that when assessing the demands of the work of a checkout operator, we will be taking (and as far as we are concerned the IEs should take) into account all of our findings about that work, not only as made in relation to a particular sample claimant.

[65]Before moving on to refer to what was the responsibility of (here) Mrs Worthington (but of course it was true of all customer service assistants, albeit as applied to their circumstances) in relation to cleaning, we add something to what we say in paragraphs 140-152 of our second reserved judgment. That is that at the final hearing, when considering paragraphs of an EVJD which were disputed but where we had concluded that the dispute did not need to be resolved, we will be applying some common sense to the question of how the employee was required by the respondent to work. For example, paragraph 545 of the EVJD for Mrs Worthington was disputed by the respondent on the basis that the JH did not (it was an assertion of fact) speak to a customer to see what the problem was when there was a till prompt on an ASC. Not only was it a requirement of the respondent that a checkout operator engaged with a customer on an ASC in the manner recorded by us in paragraph 151 on page 70 of our second reserved judgment, but also it was obvious that it was a requirement of the respondent that such an operator engaged in a friendly manner with a customer whose self-service checkout process had been halted by a till prompt. We also add that we cannot see the IEs having any difficulty in that regard either, and that of course that common sense approach will, we expect, be taken by them, us, and any expert for whose evidence we might give permission after this judgment is issued. Cleaning and related matters such as pest control

[66]Paragraphs 556-598 of the EVJD, read in conjunction with what we say in paragraphs 153-173 on pages 70-74 of our second reserved judgment, are incorporated here. On reconsideration, it struck us that the respondent’s opposition to paragraph 556 of the EVJD was inconsistent with its case in regard to the work of Mr Young. Paragraph 556 of the EVJD for Mrs Worthington (‘The Respondent operates a “Clean as you Go” policy. This requires JH to keep an eye out for any mess, spillages or trip hazards (including equipment) whilst carrying out all tasks. If any are Case Numbers: 3304495/2018 & others 101 identified, JH stops what JH is doing and immediately cleans them up or removes them or notifies a colleague or cleaner for the same to be undertaken.’) was opposed on the basis that ‘It is the Respondent’s contention that the JH did not “keep an eye out” for mess, spillages or trip hazards, and dealt with them, as they noticed them.’ In contrast, paragraph 6.441 of the EVJD for Mr Young (which was not opposed by the claimants) was under the heading “Clean as you go (CAYG)” and was in these terms. “The job holder was required to continually monitor floor conditions throughout the warehouse when operating MHE in order to identify and retrieve any packaging (plastic, cardboard, shrink wrap or strapping) which had fallen to the ground and presented a risk of damage to MHE and/or injury to himself and other operatives.” “Additional Elements of [the] Job” as dealt with in paragraphs 599-622 of the EVJD

[67]Paragraphs 599-622 of the EVJD, read in conjunction with what we say in paragraph 11 on pages 34-35 of our second reserved judgment and paragraphs 174-179 on pages 74-75 of that judgment, are incorporated here. What is said about “working conditions” in paragraphs 637-682 of the EVJD

[68]The final passage of the EVJD which is incorporated here is paragraphs 637-682 as they stood at the time of closing submissions, read in the light of what we say in paragraphs 180-212 on pages 75-82 of our second reserved judgment. For the avoidance of doubt, we accepted that the risk of repetitive strain injury from working on the checkouts, which was the subject of paragraph 657(a), was not high for Mrs Worthington given that she did not spend much of her time working on checkouts. Of course that risk arose for people such as Ms Williams who spent longer continuous periods at a checkout. Also for the avoidance of doubt, we concluded that the risk of being given a banknote which had been in the mouth of someone (which was the subject of paragraph 657(c)) was a condition in which Mrs Worthington and other checkout operators worked. As for the risks arising from a roll cage being damaged, on reconsideration we found the video at D9/544 to be invaluable as evidence of what the respondent required of all of its stores and DC staff who came across a damaged cage. Its title was “The Journey of a Roll Cage”, and it was evidentially very helpful not only because of the statement at 1 minute 17 seconds into the video that “All cages are checked for damage to the wheels, base, main structure of the case and whether they have red straps. Any clearly damaged cages will be removed from use.” At 1 minute 50 seconds in, this statement was made. “Throughout the loading process, the Loader will carry out checks on cages to make sure all red straps are secured, the cage is undamaged and products are safely stacked.” Paragraph X (just after paragraph 28) of the EVJD; Mrs Worthington being on her feet all day except when sitting at a checkout Case Numbers: 3304495/2018 & others 102

[69]The paragraph numbered “X” in the table containing the terms of the EVJD and Leigh Day claimants’ closing submissions on the work of Mrs Worthington, just after paragraph 28, was about Mrs Worthington standing during the working day “apart from when serving customers on the checkouts”. It was in our view not correct to say Mrs Worthington spent her day standing if not working at a till, as she would have spent her day doing things, albeit that she would have been on her feet unless she was sitting at a till. So, Mrs Worthington was on her feet all day unless she was serving customers at a checkout. Omissions from what we say above in this appendix, the reasons for whose admission may not be obvious from what we say above or in either of our reserved judgments

[70]Paragraph 71 on page 50 of our second reserved judgment was unnecessary given what we say in paragraph 9 above.

[71]Paragraph 87 on page 56 of our second reserved judgment and paragraph 98 on page 59 of that judgment referred to parts of the EVJD which described things which, on reconsideration, we could see were covered by C7/185 and C7/248. Among other things, what those training materials showed was that a replenisher was required not to exercise initiative in regard to for example new products. Neither party referred to either of those training materials in their submissions to us or in their evidence. We referred (in the heading of paragraph 98 on page 59 of our second reserved judgment) only to paragraphs 151-157 of the EVJD, when in fact the material submissions on the material issue were in the respondent’s closing submissions in response to paragraph 158 of the EVJD. We inadvertently failed to take those submissions into account. On reconsideration, we could see, given what was said in C7/248 and C7/185, that those submissions should have been accepted and preferred to those of the claimants, which simply referred to the evidence of the claimant and Mr Richardson. On reconsideration, we therefore concluded that if Mrs Worthington did in fact do what was asserted in paragraphs 153-158 of the EVJD, then it was an unauthorised way of working and was not part of her work for the purposes of section 65(6) of the EqA 2010. We add that we came to that conclusion in part because of the obvious common sense of the requirement, stated for example at C7/248/7, not to do anything about a “facing error” but instead to “inform [the replenisher’s] line manager or Stock Control”.

[72]In line with our overall conclusion stated in paragraph 53 on page 25 above that we should now state definitively our findings of fact about what was the work of the sample claimants and their comparators, we concluded that paragraph 90 on page 57 of our second reserved judgment was wrong, and that paragraphs 134-137 of the EVJD were not part of the statement of the work of a replenisher, since what those paragraphs described was stated at C7/248/11, which we have incorporated via paragraph 83.9 on page 54 of our second reserved judgment, read with what we say in paragraph 25 above.

[73]We did not include paragraph 290 of the EVJD (relating to waste disposal; we refer to that paragraph in paragraph 113 on pages 62-63 of our second reserved judgment) Case Numbers: 3304495/2018 & others 103 because, we concluded, it was catered for sufficiently by what was said in C7/119 (the whole of which we incorporated via paragraph 34.1 above). Paragraph 290 was in any event unhelpful when seen against the background of what was said in C7/119 (which was highly informative about what was required by the respondent of a replenisher in the position of for example Mrs Worthington), since the reference to “waste” in paragraph 290 was unspecific.

[74]The content of paragraph 402 of the EVJD was rather less informative than what was at C7/74/5, to which document we refer in paragraph 53 above. Case Numbers: 3304495/2018 & others 104 Appendix 2 The work of Ms Williams and the conditions in which she did it An overview of Ms Williams’ work

[1]In line with(1) what was said in paragraph 1.5.1 of the EVJD for Ms Williams as it stood by the time of closing submissions as proposed by the claimants and

(2) our conclusion stated in paragraph 16 on pages 85-86 of our second reserved judgment (which we incorporate here), Ms Williams’ work was principally operating a checkout and replenishing at the respondent’s Kingstanding Birmingham Express store. In the rest of this appendix we refer to the EVJD for Ms Williams as it stood by the time of closing submissions as proposed by the claimants as “the EVJD”. Only if we refer specifically to what the respondent said in response to a particular part of the EVJD is what the respondent proposed incorporated below. Otherwise a reference to a part of the EVJD is to it as agreed or, where it was not agreed, as proposed by the claimants.

[2]The respondent’s proposed words for paragraph 1.5.2 of the EVJD (see paragraph 17 on page 86 of our second reserved judgment) and the agreed words of paragraphs 1.5.3 and 1.5.4 of the EVJD are incorporated here.

[3]Ms Williams was on her feet for the whole of each shift.

[4]The work of replenishment in an Express store was more diverse than that of a replenisher in one of the respondent’s stores such as Woolton, where Mrs Worthington worked, if only because replenishment in an Express store was typically of more than just one main type of product. In addition, the distance which a replenisher would need to move for example cages was less than in a standard or large store, if only because Express stores were in a much smaller physical area than that of a standard or large store.

[5]As for operating a checkout, we struggled to see any major differences between working in an Express store as compared with working in a standard or large store, except that the space behind the checkout in an Express store was likely to be smaller than the space which there would be for the use of a checkout operator in a standard or large store.

[6]Given all of the factors to which we refer in the two preceding paragraphs above, we concluded that we should state the work of Ms Williams by(1) stating what additional documents, that is to say what documents in addition to those to which we refer in the preceding appendix above in relation to the work of Mrs Worthington and which we have stated are applicable to this and the next four appendices, were applicable to describe the work (for the purposes of section 65(6) of the EqA 2010) of replenishment and on the checkouts which Ms Williams did, and

(2) stating what parts of the EVJD (read in the light of what we said in Appendix 2 to our second reserved judgment) added something material and should therefore be taken into account by the IEs and us. Case Numbers: 3304495/2018 & others 105

[7]For the avoidance of doubt, the following paragraphs of appendix 1 above are incorporated here (and in the next four appendices): 3-6, 8-12, 16 and 25 (on pages 89-91 above). So are the training materials referred to in those paragraphs, including by reference to parts of our second reserved judgment. The temperatures in which Ms Williams worked

[8]We heard no submissions on the question of the temperatures in which Ms Williams worked. That may be because the substance of the issue (stated in paragraph 1.2.13 of the EVJD) was not contested, but on reconsideration we realised that it was necessary to decide to what extent the temperatures in a store were relevant in determining the working conditions of a sample claimant, and having (in paragraphs 14 and 15 of appendix 1 on page 90 above) come to a conclusion in that regard in relation to the work of Mrs Worthington, we concluded that we needed to address the issue in relation to the work of(1) Ms Cannon, Ms Thompson and Ms Oz (who were all in the same position in this regard) and

(2) Ms Williams and Ms Garrod (who were not in the same position as each other) separately.

[9]Given what we say in paragraph 1 above, the temperatures in which Ms Williams worked were those which were typical of the shop floor and the warehouse of an Express store. We saw that at H3/187, under the heading “Task A: Checkout”, in paragraph 42.2 of the EVJD at H3, this was said: “JH spends the majority of her time on the shopfloor, including checkout during which JH experiences a range of different working conditions, including: ... Low and controlled temperatures in store”. In contrast to the position in relation to Mrs Worthington, no figures were given in the EVJD for Ms Williams as far as we could see. We concluded that in an Express store, both on the shop floor and in the warehouse, the ambient temperature was likely to be colder than the open air temperature on hot days and warmer on cold days, so the words “low and controlled temperatures in store” were apt. Lighting

[10]Paragraph 1.2.14 of the EVJD is incorporated here. The hours which Ms Williams worked

[11]Paragraph 1.1.2 of the EVJD for Ms Williams as it stood so far as it was agreed by the time of closing submissions (“the EVJD”) is incorporated here (if only for the avoidance of doubt about the hours which Ms Williams worked, because it affected the frequency with which she was likely to come into contact with customers). That had to be read against the fact that as agreed in paragraph 1.2.1 of the EVJD, the store was open from 06:00 to 23:00 seven days a week.

[12]Paragraph 1.3.1 of the EVJD (stating how many colleagues were on the shop floor with the claimant from time to time) read with paragraph 19 on page 86 of our second reserved judgment is incorporated here. Case Numbers: 3304495/2018 & others 106

[13]Ms Williams was required to clock in and out of work. The presence of CCTV and the possibility of tracing the acts of a checkout operator such as Ms Williams

[14]Paragraph 4 on page 83 of our second reserved judgment is incorporated here.

[15]Paragraph 30.13 of the EVJD is incorporated here. The task of replenishing Generally applicable training materials

[16]The training materials referred to in paragraphs 34, 38 and 43 of appendix 1 at pages 92-94 above (including by reference to parts of our second reserved judgment) are incorporated here.

[17]C7/264 “Fresh Food Replenishment – Sorting Stock And Working Deliveries”) is incorporated here.

[18]C7/350 (“Know Your Stuff for Grocery Replenishment – Replenishing Promotional Space”) is incorporated here.

[19]C7/179, concerning food safety and hygiene in an Express store, is incorporated here. Working at a checkout in an Express store; the work of Ms Williams done in that regard Introduction; overview and training materials

[20]Paragraph 2 of the EVJD, giving an overview of the work of working on a checkout as far as Ms Williams was concerned, is incorporated here.

[21]The following bullet points of paragraph 30.19 of the EVJD (which were not stated elsewhere) are applicable (despite those stated in paragraphs 21.2 and 21.3 below being obvious) and are therefore incorporated here.21.1 There was a risk of repetitive strain injury from the repetitive nature of the work, which included twisting and turning while scanning 100s of items of varying size and weight.

21.2 The operator of a checkout is under the constant gaze of customers.

21.3 The environment is one of frequent noise from “customers, alarms, Bell System, till prompts, colleagues, checkout alerts”.

21.4 Broken glass Case Numbers: 3304495/2018 & others 107

[22]Paragraphs 2.1.3-2.1.6 and 1.4.1 of the EVJD (relating to(1) the food display at the entrance to the checkout area,

(2) what was kept behind the mainbank checkouts, and

(3) tobacco packaging), are incorporated here.

[23]Only if Ms Williams was the first person to sign onto the checkouts at the start of the day did she need to sign onto the ASCs as such. Paragraph2.3.1 of the EVJD is incorporated here. The first sentence of paragraph

2.3.2 (“JH signs in to Mainbank Checkout by scanning the barcode on JH's colleague card before entering JH's private password or manually through the ‘Sign On/Off’ key plus operator number and password.”) applies here.

[24]The following documents relating to working on assisted service checkouts (“ASCs”), including specifically at an Express store, are incorporated here:24.1 C7/39 (“Know Your Stuff For ASCs”), showing the training given to an ASC operator; in what follows, “KYS” is short for “Know Your Stuff”;

24.2 C7/46 (“KYS For ASCs – Getting Started - The Assistant Station (Express Only)”;

24.3 C7/26 (“Making Moments Matter at Self service checkouts”);

24.4 C7/27 (“KYS For ASCs – Getting Started - Equipment”);

24.5 C7/29 (“KYS For ASCs – Getting Started – The Assistant Station”);

24.6 C7/32 (“KYS For ASCs – Legal Sales – Age Restricted Sales”);

24.7 C7/48 (“KYS For ASCs – Legal Sales – Age Restricted Sales (Express Only)”;

24.8 C7/34 (“KYS For ASCs – Security – Shrinkage”);

24.9 C7/35 (“KYS For ASCs – Security – Conflict Resolution”);

24.10 C7/41 (“KYS for ASCs – Maintenance – Basic Maintenance”);

24.11 C7/36 (“KYS For ASCs – Maintenance – Problem Solving”);

24.12 C7/38 (“KYS For ASCs – Maintenance – Rebooting a Checkout”);

24.13 C7/50 (“KYS For ASCs – Security – High Value Items”);

24.14 C7/53 (“KYS For ASCs – Cash Routines (Version 4 Checkouts)”); that it applied was apparent from the fact that the claimants relied on it in support of paragraph 26.2.5 of the EVJD;

24.15 C7/61 (“KYS for ASCs – Using The Checkouts – Scanning And Packing”); Case Numbers: 3304495/2018 & others 108

24.16 C7/62 (“KYS for ASCs – Using The Checkouts – Processing Items”), showing what to do if for example a customer’s item would not scan;

24.17 C7/63 (“KYS for ASCs – Using The Checkouts – Paying”);

24.18 C7/64 (“KYS for ASCs – Using The Checkouts – Transactions”);

24.19 C7/65 (“KYS for ASCs – Using The Checkouts – Clubcards”);

24.20 C7/151 (“KYS for Checkouts – Helpful and Friendly Service At The Checkouts”);

24.21 C7/153 (“KYS for Checkouts – Operating A Checkout”);

24.22 C7165 (“KYS for Checkouts – Operating A Checkout (Express)”); and

24.23 C7/200 (“KYS For Express: Checkouts – Great Performance”).

[25]The following training materials relating to working on a mainbank checkout and generally on a checkout are incorporated here:25.1 C7/69 (“KYS For Checkouts – Bronze Validation – Answers”);

25.2 C7/75 (“KYS For Checkouts – Delivering Great Service At The Checkouts”);

25.3 C7/76 (“Know Your Stuff For Checkouts – Great Performance”);

25.4 C7/78 (“KYS For Checkouts – How to Understand Till Receipts”);

25.5 C7/79 (“KYS For Checkouts – Improving Your Health and Wellbeing”), read with paragraph 265 on page 148 of our second reserved judgment;

25.6 C7/84 (“KYS For Checkouts – Bag Packing”);

25.7 C7/94 (KYS For Checkouts – External Gift Cards”);

25.8 C7/95 (“KYS For Checkouts – External Retailer’s Gift Cards”);

25.9 C7/96 (“KYS For Checkouts – Accepted Methods of Payment”);

25.10 C7/163 (“KYS For Checkouts – Bronze 5 – Operating A Checkout”);

25.11 C7/160 (KYS For Checkouts – Problem Solving”);

25.12 C7/164 (“KYS For Checkouts – Changing A Till Roll”);

25.13 C7/169 (KYS For Checkouts – Services We Offer At The Checkout”); Case Numbers: 3304495/2018 & others 109

25.14 C7/155 (“KYS For Checkouts – Housekeeping At The Checkouts”); for the avoidance of doubt making paragraph 2.4.5 of the EVJD redundant; and

25.15 C7/175 (“KYS For Checkouts – Security and Working Legally”).

[26]Paragraphs 57 (describing what was required of a checkout operator in regard to the offering or provision of additional assistance to customers) and 61 (concerning agerelated sales) of appendix 1 on pages 96 and 97 above are repeated here.

[27]Paragraph 22 on page 87 of our second reserved judgment is incorporated here. Before a 5p charge for a bag was introduced, C7/81 applied.

[28]Paragraphs2.5.1 and

2.5.2 of the EVJD, relating to ensuring that enough bags are at the mainbank checkout, and are provided to customers on request, is incorporated here.

[29]Paragraph 2.5.3 of the EVJD as proposed by the respondent (see paragraph 41 on page 91 of our second reserved judgment) is incorporated here.

[30]Ms Williams replenished cigarettes in the “gantry” behind the mainbank checkout in the manner stated by us in paragraph 44 on page 92 of our second reserved judgment “on average once a week, for approximately one to two hours in between serving customers on the Mainbank Checkout”.

[31]The respondent’s proposed words for paragraph 2.7.3 of the EVJD (describing what happened if a brand ran out in the cigarette gantry) are (see paragraph 45 on page 93 of our second reserved judgment) incorporated here. Various tasks required to be done when working at a checkout

[32]Paragraphs 3.1.1, 3.1.2, 3.1.3 (see paragraph 47 on page 94 of our second reserved judgment), 3.1.4, and 3.1.5 (read with what we say in paragraph 48 of that judgment) of the EVJD are incorporated here.

[33]What we say in paragraph 49 on pages 95-96 of our second reserved judgment is incorporated here. We add that C7/124/12 was relevant as stating more than was on C7/143/11 about the carry-out service.

[34]Paragraphs 3.2.1-3.2.4 of the EVJD, read with what we say in paragraph 50 on page 96 of our second reserved judgment, are incorporated here.

[35]Paragraph 3.3.1 of the EVJD and the words which we have set out at the end of paragraph 52 on page 97 of our second reserved judgment are incorporated here.

[36]Paragraphs3.4.1 and

3.4.2 of the EVJD read in the light of what we say in the final two sentences of paragraph 53 on page 97 of our second reserved judgment are incorporated here. Case Numbers: 3304495/2018 & others 110

[37]Paragraphs 3.4.3 and 3.4.4 of the EVJD, read with what we say in paragraphs 54 and 55 on page 98 of our second reserved judgment, are incorporated here.

[38]Paragraph 3.5.1 of the EVJD read with what we say in paragraph 56 of that judgment is incorporated here.

[39]Paragraph 3.6.1 of the EVJD read with what we say in paragraph 57 of that judgment is incorporated here.

[40]Paragraphs 3.6.2-3.6.8 of the EVJD are (see paragraphs 58 and 59 on pages 98-99 of our second reserved judgment) incorporated here.

[41]Paragraphs3.7.1 and

3.7.2 of the EVJD, read with what we say in paragraphs 60-61 on page 99 of our second reserved judgment (so, with replacement words for those in paragraph 3.7.2), are incorporated here.

[42]Paragraphs 3.7.3-3.7.6 of the EVJD are (see paragraph 271 on page 73 above in relation to paragraph 3.7.3) incorporated here.

[43]Paragraphs3.8.1 and

3.8.2 of the EVJD are incorporated here.

[44]Paragraph 3.9.1 of the EVJD, read with the final sentence of paragraph 64 on page 100 of our second reserved judgment, is incorporated here.

[45]Paragraph 3.9.2, read without a cross-reference the Cold Chain (which is unnecessary since that policy was applicable generally), is incorporated here.

[46]Paragraphs3.10.1 and

3.10.2 of the EVJD, read with what we say in paragraphs 66 and 67 on page 100 of our second reserved judgment, are incorporated here.

[47]Paragraph 3.10.4 of the EVJD, read with what we say in paragraph 68 on page 101 of our second reserved judgment, is incorporated here.

[48]Paragraphs3.11.1 and

3.11.2 of the EVJD, read with what we say in paragraph 69 of that judgment, are incorporated here.

[49]The words at the end of paragraph 70 on page 101 of our second reserved judgment are incorporated here, as are (see paragraph 71 on the same page of our second reserved judgment) the words proposed by the respondent for paragraph 3.12.2 of the EVJD.

[50]Paragraph 3.12.4 of the EVJD read with what we say in paragraph 72 on pages 101- 102 of our second reserved judgment, is incorporated here. Various issues arising in the course of or in relation to scanning items Case Numbers: 3304495/2018 & others 111

[51]Paragraphs 4.1.1-4.1.4 of the EVJD read with paragraph 73 on page 102 of our second reserved judgment, are incorporated here.

[52]Paragraph 4.1.5 of the EVJD, read with paragraphs 74-76 on pages 102-103 of our second reserved judgment, is incorporated here.

[53]The words which we have set out at the end of paragraph 77 of that judgment are incorporated here.

[54]Paragraphs 4.2.1-4.2.5 of the EVJD, read with what we say in paragraphs 78-79 on page 103 of our second reserved judgment, are incorporated here.

[55]Paragraphs 4.3.1, 4.3.2, and 4.3.4-4.3.7 of the EVJD, read with what we say in paragraph 80 on page 104 of our second reserved judgment, are incorporated here.

[56]The claimants’ proposed words for paragraph 4.4.1 (concerning what happened if a “not on file” till prompt appeared) are incorporated here, but read with what we say in paragraph 81 on page 104 of our second reserved judgment.

[57]Paragraphs 4.4.2-4.4.4, 4.5.1, 4.6.1, 4.6.2, 4.6.4, 4.7.1-4.7.5 and 4.7.8 of the EVJD are incorporated here. Things arising from till prompts

[58]The opening words of paragraph 5, and paragraphs 5.1.1-5.1.3 (read with paragraph 83 on page 104 of our second reserved judgment), 5.2.1-5.2.2, 5.2.4, 5.3.1,5.4.1 and

5.4.2 of the EVJD are incorporated here. Bulk sales

[59]Paragraphs5.7.1 and

5.7.2 of the EVJD, read for the avoidance of doubt with the relevant part of C7/169/6, are incorporated here. E top-up

[60]Paragraphs 6.1-1-6.1.3 of the EVJD read with paragraph 87 on page 105 of our second reserved judgment are incorporated here. Gift cards

[61]Paragraphs 6.2.1-6.2.7 of the EVJD are incorporated here, after which these words are (see paragraphs 88-89 on pages 105-106 of our second reserved judgment) to replace the claimants’ proposed words for paragraph 6.2.8 (for the sake of simplicity retaining the existing phraseology). “Prior to payment, JH can void the gift card selected which prevents the card from being activated and it can be returned to the gift card display and sold to another customer. If for a high amount, JH calls a Manager to do this. At the Case Numbers: 3304495/2018 & others 112 end of each gift card purchase, the JH would say to the customer this, or something similar: ‘These are non-refundable; please keep your receipt.’ If the customer asked for a refund or to exchange the card, then the JH would be required to refer the customer to the card provider's call centre number given on the back of the receipt for the gift card.” Tasks to do with lottery tickets Training materials

[62]The following training materials are incorporated here:62.1 C7/150 (“KYS For Lottery – Lottery Sales Through The Till”);

62.2 C7/161 (“KYS For Lottery – Cancelling Lottery Sales”);

62.3 C7/170 (“KYS For Lottery – Welcome to Camelot”);

62.4 C7/171 (“KYS For Lottery – Loss Prevention”);

62.5 C7/172 (“KYS For Lottery – Lottery Sales”);

62.6 C7/173 (“KYS For Lottery – FastPay”); and

62.7 C7/174 (“KYS For Lottery – Paying Out Prizes”). Paragraph 7 of the EVJD incorporated as determined in our second reserved judgment

[63]Paragraphs 7.1.1 and 7.1.3-7.5.1 of the EVJD, read with what we say in paragraphs 90-93 on page 106 of our second reserved judgment (so, reading those paragraphs with paragraph 43 on page 92 of our second reserved judgment, without the bullet point in paragraph 7.1.3 relating to the activation of scratchcards), are incorporated here. Click + Collect C7/211 is incorporated here.

[65]Paragraph 8.1.1 of the EVJD as proposed by the respondent with the words “in accordance with C7/211” inserted after “via the Bell System” (see paragraph 95 on page 107 of our second reserved judgment), is incorporated here.

[66]Paragraphs 8.1.2-8.1.4 of the EVJD as proposed by the respondent (see paragraphs 96 and 97 on pages 107-108 of our second reserved judgment) are incorporated here.

[67]Paragraphs8.2.1 as proposed by the respondent (see paragraph 98 on page 108 of our second reserved judgment) and

8.2.2 of the EVJD are incorporated here. Case Numbers: 3304495/2018 & others 113 Taking payment

[68]Paragraphs 9.1.1-9.1.3 of the EVJD with (see paragraph 99 on page 108 of our second reserved judgment) these words added at the end: “Once all cash has been placed into the correct sections of the drawer, JH ensures the till drawer is closed.”, are incorporated.

[69]Paragraph 9.1.5 of the EVJD, paragraph 9.1.6 of the EVJD with (see paragraph 100 on page 108 of our second reserved judgment) the respondent’s proposed words, and paragraphs 9.1.7-9.1.16 of the EVJD (see paragraph 103 on page 109 of our second reserved judgment) are incorporated here.

[70]The words in the indent at the end of paragraph 106 on page 110 of our second reserved judgment are incorporated here.

[71]Paragraphs 9.1.18-9.1.25 with (see paragraphs 107-109 on pages 110-111 of our second reserved judgment) the second sentence of paragraph 9.1.25 replaced by “The JH was required to check that the correct item was being purchased. If a coupon was not recognised by the till then she would ring the bell to call for a manager's assistance.”, are incorporated here.

[72]Paragraphs 9.1.26, 9.1.27, 9.1.28 with (see paragraph 110 on page 111 of our second reserved judgment) the respondent’s and not the claimants’ proposed words, 9.1.29, 9.1.30 (see paragraph 111 on page 111 of our second reserved judgment), and 9.1.32 of the EVJD are incorporated here.

[73]Paragraphs 9.2.1-9.2.4 of the EVJD are incorporated here.

[74]A customer assistant working at a checkout was (see paragraphs 112-113 on page 111 of our second reserved judgment and paragraph 275 on page 74 above) required to ask customers who did not have a visible Clubcard whether they had a Clubcard, regardless of the number of items being purchased. If the customer had a clubcard then the assistant was required to scan it or swipe its barcode.

[75]If the customer did not have a Clubcard then (see paragraph 114 on page 112 of our second reserved judgment; the words which we said there should be the opening words of paragraph 9.2.6 of the EVJD were, on reconsideration, all that needed to be said in that paragraph) the JH was required to tell them the benefits of the scheme and offer them an application form.

[76]Paragraphs 9.2.7-9.2.18 of the EVJD (read with paragraphs 115 and 116 on page 112 of our second reserved judgment) are incorporated here.

[77]Paragraph 9.1.19 of the EVJD with the respondent’s proposed additional words (“If the customer was dissatisfied, JH would use the Bell System to call for Manager assistance.”) is (see paragraph 117 on page 112 of our second reserved judgment) incorporated here. Case Numbers: 3304495/2018 & others 114

[78]Paragraph 9.2.20 of the EVJD with (see paragraphs 118-120 on pages 112-113 of our second reserved judgment, which are incorporated here) the respondent’s proposed words, is incorporated here.

[79]Paragraphs 9.2.21-9.2.24 of the EVJD are incorporated here.

[80]Paragraph 9.3.1 of the EVJD is incorporated here on the basis that advice would be given to a customer about what was on a till receipt only if the customer asked for it and on the basis that the customer assistant in the position of Ms Williams would be required to know what was in C7/78.

[81]Paragraphs 9.3.3 and 9.3.5 of the EVJD (but not paragraph 9.3.4: see paragraph 122 on page 113 of our second reserved judgment) are incorporated here.

[82]Paragraph 9.3.6 of the EVJD, read with paragraphs 123-125 on pages 113-114 of our second reserved judgment, is incorporated here.

[83]Paragraphs 9.3.7 and 9.3.8 of the EVJD, and the words which we have set out at the end of paragraph 126 on page 114 of our second reserved judgment, are incorporated here. Bags

[84]Paragraph 10.1.1 of the EVJD, read in the light of what we say in paragraph 127 on page 114 of our second reserved judgment (and bearing it in mind that C7/167 is a repeat of C7/151, which we refer to in paragraph 24.20 above as being incorporated), is incorporated here.

[85]Paragraph 10.1.2 of the EVJD read with C7/84 (so that, as indicated in paragraph 133 on page 116 of our second reserved judgement, paragraph 10.2.2 of the EVJD is unnecessary and is as a result omitted) and paragraph 10.1.3 of the EVJD are incorporated here.

[86]The words which we have set out at the end of paragraph 129 on page 115 of our second reserved judgment are incorporated here.

[87]Paragraph 10.1.5 of the EVJD, read with what we say in paragraph 130 of that judgment, is incorporated here.

[88]Paragraphs 10.1.6-10.1.7 of the EVJD are incorporated here.

[89]The parties’ proposed words for paragraph 10.1.8 of the EVJD up to “authorisation” with (see paragraph 131 on page 115 of our second reserved judgment) the following words inserted in place of those proposed by either party “in the manner described on pages 3 and 4 of C7/61”, are incorporated here. Case Numbers: 3304495/2018 & others 115

[90]Paragraphs 10.1.9 (see paragraph 132 on pages 115-116 of our second reserved judgment) to 10.1.11 of the EVJD are incorporated here.

[91]Paragraph 10.2.1 of the EVJD is incorporated here. Returns and refunds

[92]Paragraphs 11.1.1 and 11.1.4 of the EVJD are incorporated here.

[93]The respondent’s proposed words for paragraphs 11.1.2 and 11.2.1 (with the words “a regular occurrence” replacing “once every three weeks” in the latter: see paragraphs 134-137 on pages 116-117 of our second reserved judgment) of the EVJD are incorporated here. Till lifts

[94]The respondent’s proposed words for paragraph 12.1.1, with (see paragraph 138 on page 117 of our second reserved judgment) the figure of £600 substituted for £500, are incorporated here.

[95]Paragraphs 12.1.3 and (see paragraph 141 on page 118 of our second reserved judgment) 12.1.4 of the EVJD are incorporated here.

[96]Till lifts needed to be carried out (see paragraph 142 on page 118 of our second reserved judgment) frequently and (as stated in paragraph 12.1.6 of the EVJD) Ms Williams carried them out only at store closing when customers were not present. Delivery-related work

[97]What we say in paragraphs 144-145 and 148 on pages 119-120 of our second reserved judgment is incorporated here, with, as a result of reconsideration, a recognition that the distances which UoDs had to be moved in an express store were at least usually less than those in for example Woolton. The UoDs would also have differed in some ways, and the extent to which they did was the subject of paragraphs 14.1.2 and 14.1.3 of the EVJD. We did not in our second reserved judgment determine the disputes maintained in those paragraphs. That was on the basis that we could not see why the differences between the parties in that regard were material.

[98]On reconsideration, we could see that the situation was more complicated than we at first thought (although we were ourselves still rather doubtful that the outcome of the dispute was going to be material to the determination of the effort required for, and therefore the value of, the work in question). That was because C5/25 (not, as stated in the claimants’ submissions, C5/21) stated in terms that standard cages could not be taken onto the shop floor, which was why blue top trolleys had to be used to get stock onto the shop floor until slim line cages were introduced. C5/15 showed that they were introduced from 9 July 2012 onwards. Once they were present in express stores, they were required by the respondent to be used instead of blue top trolleys. Case Numbers: 3304495/2018 & others 116 What was clear was that deliveries were not at that time made in slim line cages. The claimants said in their proposed words for paragraph 14.1.3 of the EVJD that “From around 2014, stock was mainly delivered to the JH’s store in red based Slim Line Cages. On occasions after this period, JH’s store continued to receive Standard Cages (which still needed to be replenished using blue top dolly [i.e. trolley] or spare red based Slim Line Cages) alongside the red based Slim Line Cages.”

[99]The respondent’s evidence on this was stated in its proposed words for paragraph 14.1.3, which included the simple assertion at the end of those words that “JH’s store continued to receive deliveries on Standard Cages, although the number of Standard Cages decreased over time.” The claimants’ case was based here on (correctlycited) C5/25, C5/34 and D9/7. Co-incidentally, the requirement (to which we refer in paragraph 45 of appendix 7 on page 212 below) to strap the fifth slim line cage to the fourth on a LLOP’s forks was clearly the result of the near-misses to which reference was made at C5/34/6. That document as a whole supported what the claimants said in paragraph 14.1.3, including that by the second half of 2014, there had been a “rollout” of the new, red-based, slim line cages. D9/7 referred to a “New Dollie Size Cage Roll Out”, starting: “As part of a large piece of work focusing on improving the manoeuvrability of the cages we send to our stores, we will be rolling out the new Dollie size cage (DSC) from Week 34 to all Express format stores serviced by Doncaster and Didcot Distribution Centres (DCs).” The reasons for the change were stated (cogently) in that document. The new cages were said on the first page to be “slightly wider and therefore more stable than the Slim Line cages currently in use” and to have “better manoeuvrability due to the newly designed wheels”. They were said to be “loaded 4 across the back of the trailer and strapped in the usual manner”. D9/7 was in fact four documents, the final three of which were “KYS For Fresh Goods Out – Loading Dollie size Cages”, “KYS Drivers Handling & Delivering Dollie size Cages”, and “KYS For Fresh Assembly – Dollie Size Cage Assembly”, making it clear that the new “dollie size” cages were for fresh goods. D9/7 was undated, but it was given a date in the index of 27/09/2017. In those circumstances, we concluded that we should prefer the words of the claimants in paragraphs 14.1.2 and 14.1.3 of the EVJD, which are incorporated on that basis here. Courier deliveries

[100]Paragraph 14.3.8 of the EVJD with the words added as stated in paragraph 149 on page 120 of our second reserved judgment and (see also paragraph 149 of that judgment) the respondent’s proposed words for paragraph 14.3.9 of the EVJD are incorporated here. Replenishment from a delivery

[101]Whenever a delivery was received at the store at which Ms Williams worked and she was asked by her line manager to replenish from it, then her line manager would (see paragraph 150 on page 120 of our second reserved judgment) usually decide in what order stock should be replenished. Case Numbers: 3304495/2018 & others 117

[102]On reconsideration, given what we say in paragraphs 98 and 99 above, we concluded that what the claimants proposed for paragraph 16.1.2 of the EVJD was accurate and not (as we originally thought) what the respondent proposed for that paragraph. Thus, that paragraph is incorporated here. We also accepted (for the same reason) that paragraph 16.1.3 of the EVJD was apt and it is therefore incorporated here also. So is paragraph 16.1.4 of the EVJD.

[103]For the same reasons, namely what we say in paragraphs 98 and 99 above, we also accepted that the claimants’ words for paragraph 16.1.5 were apt, at least in part. That was because if a standard cage arrived shrink-wrapped then Ms Williams would have had to move everything off it to get it to the shop floor (by putting the products first on a blue top trolley or, when they were available, a slim line cage). Paragraph 16.1.5 of the EVJD is therefore incorporated here on that basis.

[104]Paragraph 16.3.1 of the EVJD is incorporated here.

[105]Paragraph 16.4.1 of the EVJD read with the final sentence of paragraph 156 on page 122 of our second reserved judgment is incorporated here.

[106]Paragraph 16.4.2 of the EVJD read with the final two sentences of paragraph 157 on page 122 of our second reserved judgment is incorporated here. Replenishment otherwise than from a delivery

Introduction

[107]When asked by a line manager to do so (see paragraph 158 on page 122 of our second reserved judgment), Ms Williams replenished stock from the store’s warehouse.

[108]The respondent’s proposed words for paragraph 17.1.3 of the EVJD with (see paragraph 160 on page 123 of our second reserved judgment) the word “normally” inserted before “would” is incorporated here. The environment

[109]Paragraph 17.2.1 of the EVJD is incorporated here, with (see paragraph 161 on page 123 of our second reserved judgment) the first bullet point incorporated in the terms proposed by the claimants (“The Warehouse chiller, for up to a minute at a time on average for each visit (with multiple visits per shift) when collecting a cage or items, and for a few minutes when rotating items. The chiller is kept at a temperature of between 1 and 5 degrees Celsius”). The second bullet point is (see paragraph 162 on pages 123-124 of our second reserved judgment) in these terms: “Warehouse freezers, at a temperature of between -19 and -21 degrees Celsius; the JH briefly entered the freezer occasionally”. The third bullet point is a duplication and therefore omitted and (see paragraph 164 on page 124 of our second reserved judgment) the fourth bullet point is as proposed by the claimants, namely “Shopfloor which is set to Case Numbers: 3304495/2018 & others 118 be maintained at a temperature of 21 degrees Celsius although varies according to whether in an ambient or chilled area, especially around the chillers that are open (in two of the four aisles) making the area considerably colder.”

[110]Paragraphs 17.2.2 (read with paragraph 165 on page 124 of our second reserved judgment) and 17.2.3 of the EVJD are incorporated here.

[111]What we say in paragraph 166 on page 124 of our second reserved judgment about the subject-matter of paragraph 17.2.4 of the EVJD is incorporated here. An overview of the process of replenishment

[112]The process of replenishment otherwise than from a delivery in an Express store was stated in a summary but (subject to one caveat) informative way in the documents at112.1 C7/860 (“KYS For Express – How To Fill – On The Shopfloor”), to which we refer in paragraph 153 on page 121 of our second reserved judgment, as being “incidentally, a very helpful and detailed statement of the main tasks involved in replenishment in an Express store generally”;

112.2 C7/185 (“KYS For Express: Replenishment – How To Fill – Stock Control and Price Integrity”);

112.3 C7/186 (“KYS For Express: Replenishment – Backdoor, Warehouse and Sorting Stock”, to which we refer in paragraphs 73-76 on pages 338-339 of our second reserved judgment, which we incorporate here);

112.4 C7/187 (which was already applicable here because of what we say in paragraph 16 above read with paragraph 83.7 on page 53 of our second reserved judgment);

112.5 C7/188 (which was already applicable here as it was referred to in paragraph 83.10 on page 55 of our second reserved judgment, which was incorporated by paragraph 16 above);

112.6 C7/189 (to which we refer in paragraph 157 on page 361 of our second reserved judgment);

112.7 C7/190 (to which we refer in paragraph 61 of appendix 1 on page 97 above, but which was aimed specifically at replenishment in an Express store; its title was ““KYS For Express: Replenishment – Licensing Laws and Displaying Alcohol On The Shopfloor”); and

112.8 C7/191, to which we refer in paragraph 78 on pages 315-316 our second reserved judgment and paragraph 141 on pages 356-357 of that judgment; in particular the photographs with the bullet points below them on the second page of that document were succinct and highly informative statements of what was required of a replenisher in an Express store, although we thought Case Numbers: 3304495/2018 & others 119 that those statements were also plainly applicable to replenishment in a larger store.

[113]There were other training materials which were relevant but were not directed specifically at Express stores. One was C7/353, to which we referred only once in our second reserved judgment, but which was plainly generally applicable. C7/353 was entitled “KYS On Grocery Replenishment – How To Fill Using Filling Equipment And Retail Ready Packaging” and we referred to it only in passing in paragraph 72 on page 50 of our second reserved judgment, but we intended it to be taken into account in so far as what it said applied to an aspect of all of the sample claimants. We now incorporate pages 4-5 of C7/353 here in relation to retail ready packaging. Cleaning when replenishing

[114]The words which we have set out at the end of paragraph 153 on page 121 of our second reserved judgment are incorporated here. Vigilance in regard to chiller and freezer temperatures

[115]The words which we have set out at the end of paragraph 154 on page 121 of our second reserved judgment are incorporated here, read with what we say in paragraph 268 on pages 72-73 above. Equipment used when replenishing

[116]The equipment which an Express store replenisher was able and when necessary required to use was as stated at C7/860/2 (it being odd to say that she “used” a cage or a green tray or dollie, as asserted in paragraph 17.3.1 of the EVJD). There was on that page a helpful picture of a “kickstool” and of a “recycling bag” attached to a cage. C7/353/2 is applicable here. It started with these words. “Filling can be physically demanding. However, having the right tools available and knowing how to use them can make it much easier.”

[117]What was said on the rest of that page showed what the respondent provided by way of equipment for use when replenishing.

[118]Paragraphs 17.3.3-17.3.7 of the EVJD were agreed and are incorporated here on the assumption that, while their content was to us obvious, the IEs may need the obvious to be stated so that the obvious can be taken into account by them.

[119]Paragraphs 17.3.9-17.3.12 of the EVJD are incorporated here, read with C7/353, so that it was beyond doubt that(1) the use of a kneeling pad was, as stated at C7/353/3, optional and

(2) there was a need, as stated at C7/353/2, to return all of the “bigger filling equipment” to the warehouse when the customer assistant in question had finished using it. Case Numbers: 3304495/2018 & others 120

[120]Paragraph 17.3.14 of the EVJD is incorporated here. For the avoidance of doubt, paragraph 17.3.15, read with paragraph 170 on page 125 of our second reserved judgment, is incorporated here. Paragraph 17.3.16 as proposed by the respondents by the time of closing submissions (see paragraph 171 on page 125 of our second reserved judgment) is incorporated here, suitably adapted, namely: “The wheels on dollies could also be wobbly, damaged and stiff. This was encountered by the whole store once every couple of weeks on average. When this was the case, Ms Williams would attempt to accommodate for this when pulling the stacks, pulling with a colleague if necessary.”

[121]Paragraph 17.3.17 of the EVJD is incorporated here.

[122]The respondent’s proposed words for paragraph 17.3.18 of the EVJD, suitably adapted, are (see paragraph 172 on page 125 of our second reserved judgment) incorporated here, namely “Approximately once every two months from 2014 onwards, Ms Williams was instructed to use a PDA to produce a new SEL.”

[123]Paragraphs 17.3.19, 17.3.20 17.3.22 and 17.3.23 of the EVJD (relating to the use of a PDA) are incorporated here. Customer service when replenishing

[124]Paragraphs18.1.1 and

18.1.2 of the EVJD, read with what we say in paragraph 174 on page 126 of our second reserved judgment, are incorporated here.

[125]Paragraph 18.2.1 of the EVJD as proposed by the claimants, but(1) without the cross-reference to “3.10.1” and

(2) rewritten to reflect our overall approach, with the words “frequently, the” inserted after the opening words “During replenishment,” is incorporated here. So, the opening words will be “During replenishment, frequently Ms Williams would be”.

[126]Paragraph 18.2.2 of the EVJD with (see paragraph 177 on pages 126-127 of our second reserved judgment) the word “occasionally” substituted for “every few weeks” is incorporated here.

[127]Paragraph 18.2.3 of the EVJD as proposed by the respondent (see paragraph 178 on page 127 of our second reserved judgment), suitably adapted, namely as follows, is incorporated here. “Sometimes (up to twice a week across the store, so that it occurred less frequently to Ms Williams), a customer in the checkout queue or being served at the Mainbank Checkout would realise that an item of shopping had been forgotten and ask Ms Williams to obtain the missing item for them.”

[128]Paragraphs 18.2.4-18.2.6 of the EVJD are incorporated here. Case Numbers: 3304495/2018 & others 121

[129]Assuming that paragraph 18.2.7 of the EVJD was a fair statement of the requirements of the work of a customer assistant in an Express store in regard to allergens, its text, as rewritten by us on reconsideration (but in line with what we concluded in paragraph 179 on page 127 of our second reserved judgment), was as follows. “Ms Williams was occasionally asked by customers whether an item contained allergens. She would then check the item’s ingredients by reading the label, informing the customer of what she had seen on the label. She would also tell the customer about the store’s “free from” range, and if she was unsure what advice to give then she would ask a line manager for assistance.

[130]Those words had to be read in the light of C7/430, entitled “Allergens And Our Customers”. On page 4 of that document, it was said that if a customer assistant did not know what allergens were in the food which they were serving then they had to ask their “Team Leader or Line Manager”.

[131]The substance of(1) paragraph 18.2.8 of the EVJD as proposed by the claimants by the time of closing submissions (see paragraph 180 on page 127 of our second reserved judgment) and

(2) our replacement words for paragraph 18.2.12 of the EVJD (set out at the end of paragraph 182 on page 128 of our second reserved judgment) is incorporated here, via the following words. “A customer assistant in an Express store was required to rely on knowledge of the store’s items when asked by a customer whether a certain item was sold or when it might be back in stock. If the assistant knew that the item was sold in the store, then the assistant was required to locate the SEL and if the item was out of stock, and it was known that it was likely to be on the next delivery (for example because it was a regular item on each Fresh delivery), then the assistant was required to communicate that information to the customer, apologising and suggesting a suitable alternative (stating its price) with a view to avoiding causing the customer inconvenience and potentially losing the respondent custom.”

[132]Paragraph 18.2.10 of the EVJD read in the light of what we say in paragraph 181 on pages 127-128 of our second reserved judgment is incorporated here, namely: “JH was frequently approached by customers to confirm the price of an item. This was often due to customers getting confused with what was on offer, the terms of an offer, where several similar items were located close together, or confusing the ‘price’ with the ‘saving’.”

[133]Paragraph 18.2.11 of the EVJD, expanding on what was required of a customer assistant in those circumstances, is incorporated here.

[134]The claimants’ proposed words for paragraphs 18.2.13-18.2.17 of the EVJD (relating to interacting with “Elderly, vulnerable and disabled customers”) are (for the reasons stated in paragraphs 183-187 on pages 128-129 of our second reserved judgment) Case Numbers: 3304495/2018 & others 122 incorporated here, followed by the words which we set out at the end of paragraph 187 of that sequence, namely: “Occasionally, the JH would be required to help elderly or vulnerable customers by carrying out their shopping to their vehicles.”

[135]Paragraph 18.2.18 of the EVJD is incorporated here.

[136]As we concluded in paragraphs 188-189 on pages 129-130 of our second reserved judgment, Ms Williams occasionally had to deal with an aggressive customer, but regularly encountered difficult ones, and she had to work in the circumstance that the possibility of either event occurring was constant. The manner in which she was required to deal with aggressive or difficult customers was as stated by us in those paragraphs 188-189.

[137]Paragraphs 18.2.24-18.2.25 of the EVJD (concerning cleaning while replenishing), read with what we say in paragraph 190 on page 130 of our second reserved judgment, are incorporated here after which the words set out at the end of paragraph 191 on that page are incorporated here, namely: “The JH was required to apply the requirements of pages 3 and 4 of C7/234 by cleaning shelves, racking, display cabinets and shelf edge stripping, either if she could see that it was necessary to do so, or if she was asked by a manager or shift leader to do so. When cleaning shelves, the JH would move products on the shelf as she went along, removing them if necessary to clean any spillage.” Security stickers

[138]Paragraph 19.1.2 of the EVJD is incorporated here. On reconsideration, we concluded in the light of the words “Relevant products are tagged, with the tag placed next to the barcode” at C7/191/2, that the word replacing “tags” (i.e. “stickers”) should remain as we say in paragraph 192 on page 130 of our second reserved judgment, especially since paragraph 19.1.2 referred to “soft security tags”, which plainly included stickers. Putting out stock

[139]Paragraphs 19.2 to 19.2.4 of the EVJD, read with paragraph 193 on pages 130-131 of our second reserved judgment, are incorporated here.

[140]Paragraph 19.2.5, to which we made no reference in our second reserved judgment, was a summary paragraph, which added nothing material except as an overview of the process of replenishment in an Express store. Such an overview was much better given by the documents to which we refer in paragraphs 112 and 113 above, but those documents did much more than simply give an overview. They stated in a coherent, structured way a number of the things in paragraph 20 of the EVJD, on which we have in any event made specific findings of fact above, including in appendix 1 relating to Mrs Worthington’s work. For the sake of simplicity and the Case Numbers: 3304495/2018 & others 123 avoidance of doubt, we have incorporated below parts of the EVJD which described what was in those documents, but on the basis that if there is repetition, then that could not properly lead to double-counting of a demand (to the possibility of which we invite the parties to be vigilant).

[141]The only thing that paragraph 19.2.7 of the EVJD added to what is already in, or obviously to be inferred from our findings of fact stated above, or simply obvious (such as the first sentence of paragraph 19.2.7, which was: “To place items on the shelves, where they are located on the bottom shelves, the JH will be required to bend down”) was the maximum heights of capped and ordinary shelving. Those were 185cm and 155cm respectively.

[142]Paragraphs 19.2.6, 19.2.8 and 19.2.9 of the EVJD, read with what we say in paragraphs 194 and 195 on page 131 of our second reserved judgment, are incorporated here, but on the basis that we accepted (as we say in paragraphs 98 and 99 above) that a standard cage was not expected by the respondent to be pulled onto the shop floor so that only a slim line cage was required to be taken onto the shop floor and otherwise stock was required to be taken there on a blue top trolley. That meant that after reconsideration, we concluded that the word “rejected” in the final sentence of paragraph 194 on page 131 of our second reserved judgment, should be (and therefore is to be read as being) replaced by the word “accepted”.

[143]The respondent’s proposed words to replace paragraph 19.2.10 of the EVJD (see paragraph 196 on pages 131-132 of our second reserved judgment) are incorporated here, namely: “When replenishing from a Cage, JH replenished items in order of ease of accessibility, replenishing the items at the top of the Cage first and working her way to the bottom of the Cage, moving between aisles as necessary. Once the JH had noticed that there were no further items to be replenished in the aisle in which she had started replenishing, the JH would check the next items to be replenished on the Cage and move to the applicable aisle.”

[144]Paragraphs 19.2.11-19.2.20 of the EVJD, as proposed by the claimants (given what we say in paragraphs 98 and 99 above and paragraphs 197-199 on pages 132-133 of our second reserved judgment) are incorporated here.

[145]Paragraph 19.2.21 of the EVJD, read with the final sentence of paragraph 200 on page 133 of our second reserved judgment, is incorporated here.

[146]Paragraph 19.2.22 of the EVJD and paragraph 19.2.23 of the EVJD with (see the final sentence of paragraph 201 on page 134 of our second reserved judgment) the words “(which occurred frequently)” inserted after the first occurrence of the words “fresh delivery”, are incorporated here. So are paragraphs 19.2.24 and 19.2.25 of the EVJD. On reconsideration, for the sake of simplicity and clarity, we concluded (contrary to what we said in paragraph 202 on page 134 of our second reserved judgment) that paragraph 19.2.26 as proposed by the claimants should be incorporated here too. Case Numbers: 3304495/2018 & others 124

[147]The respondent’s proposed words for paragraph 19.2.27 of the EVJD (relating to “New Fresh Delivery”) are (see paragraph 203 on page 134 of our second reserved judgment) incorporated here, namely: “Each fresh Slim Line Cage delivered takes approximately 15-20 minutes to replenish (if JH works alone) – sandwich deliveries can be much quicker, given the shelves are empty prior to replenishing. However, JH will on most occasions be assisted by a colleague when working the Fresh delivery.”

[148]What we say in paragraphs 204 and 205 on page 134 of our second reserved judgment (relating to what Ms Williams was required to do, or in practice did do, in relation to frozen food replenishment) is incorporated here.

[149]Paragraph 19.2.30 of the EVJD (relating to “New Ambient Delivery”) is (see paragraph 206 on pages 134-135 of our second reserved judgment) incorporated here.

[150]The subject-matter of paragraph 19.2.31 of the EVJD is incorporated in the following manner, given what we say in paragraph 207 on page 135 of our second reserved judgment. Ms Williams replenished milk from a delivery if asked by her line manager to do so. She would be required to replenish milk from existing stock in the warehouse first, and to put newly-arrived milk cages in the warehouse unless there was insufficient stock in the warehouse from which to replenish the shop floor stock, in which case she was required to replenish from the freshly-arrived cages. An alternative way to describe this task, with those practicalities in mind, is that it was one of replenishment as necessary.

[151]Paragraphs 19.2.32-19.2.34 of the EVJD (relating to milk replenishment), are incorporated here.

[152]Paragraph 19.2.35 of the EVJD (concerning what Ms Williams did in relation to bread deliveries) is incorporated here.

[153]Paragraphs 19.2.36 and the following words replacing paragraphs 19.2.37 and 19.2.38 of the EVJD should, we concluded on reconsideration (see paragraph 281 on pages 75-76 above) be, and therefore are, incorporated here. Ms Williams replenished flowers only on days when there was a fresh delivery and only occasionally (as a result of her working pattern and the timing of the fresh deliveries). In doing that, Ms Williams would add the new flower bucket to the appropriate place in the three-tier display shown at C5/10/33, moving any old buckets down to the bottom level as part of rotation. Should a flower bucket get knocked over on the shopfloor (which happened rarely) when Ms Williams was replenishing and was closest to the spillage, she would clean up the spillage in the manner required by C7/142/13-15. “Replenishment practices”; paragraph 20 of the EVJD Case Numbers: 3304495/2018 & others 125

[154]In addition to the documents to which we refer in paragraphs 112 and 113 above as being applicable to the process of replenishing in an Express store, the following documents (some of which are already incorporated via what we say for example in paragraph 7 above, in so far as it refers to paragraph 25 of appendix 1 on page 91 above) apply and are therefore, if not already incorporated by what we say above, incorporated here.154.1 C7/142;

154.2 C7/159;

154.3 C7/248;

154.4 C7/249;

154.5 C7/262;

154.6 C7/447;

154.7 C7/454;

154.8 C7/697/24-26; and

154.9 C7/823.

[155]Some parts of paragraph 20 of the EVJD said something (however slight) more than what was in the documents to which we refer in the preceding paragraph above, and the words of that paragraph which we have set out in quotations marks in the rest of this paragraph are incorporated here. In one case we give a particular reason for incorporating the words which we have just set out. In another we incorporate another part of the EVJD to the extent that it adds something.155.1 20.1.3 (“To rotate when replenishing, JH first checks the date code on the outside of the box of item being replenished. All items within the box will share the same date code.”);

155.2 20.1.8 (“JH may identify items on display which are out of code twice a week.”);

155.3 20.2.1 (“Usually, a sad face sticker is placed on the outer packaging or the SEL states a letter T before the number of Facings which indicates that it should be displayed in RRP.”);

155.4 20.2.3 (“If there are no instructions on the RRP, JH opens the packaging along any perforation.”); Case Numbers: 3304495/2018 & others 126

155.5 20.2.5 (“JH ensures that RRP remains on the shelf, regardless of how full the RRP is. If there is depleted stock across several trays, JH condenses the stock into as few RRPs as possible.”);

155.6 20.2.6 (“If the RRP is damaged, it is removed, and the items are placed straight onto the shelves.”);

155.7 20.2.7 (“JH removes any empty or excess RRP from the shelves to be recycled.”);

155.8 20.4.1(“When replenishing loose items, i.e. peppers, lemons, limes, aubergines, JH puts them in the green tray on the shelf. If the tray has plastic wrap inside, JH fully opens it to allow easy access to the item.”); we have incorporated those words as they appeared to add something slight to the detailed content of C7/454;

155.9 part of the second bullet point of 20.7.2 (“[JH checks that] the SEL is visible and that it is not covered by any promotional overlays”);

155.10 20.7.3 with our words set out at the end of paragraph 220 on page 138 of our second reserved judgment (“If a SEL or POS was missing or inaccurate, before 2014 the JH was required to inform the store’s management of that fact and after then she was required to use a PDA and the store’s printer and print out a new SEL or POS (as the case may be).”); if the product was new then, as stated in paragraph 22.1.3 of the EVJD, Ms Williams would need to

(1) confirm that fact before the label would print out and

(2) put the label in the correct place on the shop floor;

155.11 20.8.4 (‘Every day at approximately 20:00 the store undergoes a face up (sometimes called “rumble”) ... . The evening rumble is done after the busy evening trade to tidy up the store and make it more presentable. If JH is on shift at the same time, JH will assist with this process by removing excess cardboard or plastic and checking items are positioned correctly on the shelves. The Manager/Shift Leader will split the four aisles in the store assigning two to the JH.”); and

155.12 20.10.1 (“JH identifies bestselling items (sometimes called Must Fill) which are indicated by a star on the SEL. In-fixture promotions are identified by a yellow SEL. When working on replenishment JH takes care to ensure best sellers are replenished for customer satisfaction.”)

[156]One thing that became clear to us when reconsidering paragraphs 20.9.3 and 20.9.4 of the EVJD was that they referred to the possibility of a reduction in price without taking into account the content of C7/188/2-3, where it was said that some things could not be sold at all when damaged, including at a reduced price. Promotions changes; paragraph 21 of the EVJD Case Numbers: 3304495/2018 & others 127

[157]As stated in paragraph 21.1.1 of the EVJD, a change in promotions occurred every four weeks in the store at which Ms Williams worked, with the change taking effect on Wednesday mornings.

[158]Paragraph 21.1.2 of the EVJD, with promotional ends seen at C7/447/4 rather than described in a list, is incorporated here.

[159]The opening words of paragraph 21 of the EVJD read with paragraph 227 on page 139 of our second reserved judgment are incorporated here via the following words (i.e. which we arrived at on consideration, bearing in mind our conclusion that we had to set out a coherent statement of the facts of the work of the sample claimants and their comparators). At the request of a line manager, Ms Williams would in her Tuesday evening shifts if promotions were changing as from the next day, help prepare the store for the changes, including by printing out and changing the SELs of items that were no longer to remain on promotion.

[160]Paragraph 21.1.5 of the EVJD in (see paragraph 229 on page 139 of our second reserved judgment) the terms proposed by the respondent is incorporated here.

[161]Paragraph 21.1.16 of the EVJD read with paragraph 230 on page 140 of our second reserved judgment, is incorporated here.

[162]Paragraph 21.1.7 of the EVJD is (given paragraph 231 on page 140 of our second reserved judgment) incorporated here.

[163]The substance of paragraph 21.1.12 of the EVJD, read with what we say in paragraph 235 on page 140 of our second reserved judgment, is incorporated here, via the following words. Capping shelves were additional shelves measuring 40cm in depth (7cm narrower than a normal shelf) that were used for busy seasonal periods. These were 30cm higher than the store’s normal shelving (ie, at 185cm high) and therefore out of reach for some customers. When working during seasonal periods, particularly Christmas and Easter periods, approximately 5-10 times a shift, although less frequently, at once a shift, in 2012/2013 when she spent the majority of her time on checkout, Ms Williams used a kick stool to obtain items from these higher shelves at the request of a customer who was unable to reach the item in question. Urgent recalls

[164]As we say in paragraph 237 on page 141 of our second reserved judgment, Ms Williams was, rarely, asked by a manager to assist with the urgent recall of an item by helping to remove it from sale and from the store’s warehouse. Store closing; paragraph 25 of the EVJD Case Numbers: 3304495/2018 & others 128

[165]Paragraphs 25.1.1, 25.1.2 and 25.2.1 of the EVJD are incorporated here.

[166]On reconsideration, having concluded that in some cases it would be better where there was some specific evidence about frequency to accept it, we decided that we should accept the respondent’s proposed words for paragraph 25.3.1 of the EVJD (concerning newspaper returns) in full. That subparagraph is accordingly incorporated in that form here. Checkout closing; paragraph 26 of the EVJD

[167]Given what we say in paragraph 143 on page 118 of our second reserved judgment and paragraph 241 on pages 142-143 of that judgment and on reconsideration seeing that there was nothing material in the second sentence of paragraph 26.1.1 of the EVJD, the latter subparagraph is incorporated here via the following words. Ms Williams and a manager would perform the applicable till lifts across all three Mainbank Checkouts at approximately 21:00 – 21:30 in preparation for store closing.

[168]Paragraph 26.1.3 of the EVJD (assuming that it adds anything material, which we doubted), is incorporated here.

[169]The respondent’s proposed words for paragraphs26.2.1 and

26.2.2 of the EVJD are incorporated here, on the basis that the activity described in the latter subparagraph was (as we say in paragraph 243 on page 143 of our second reserved judgment) done “frequently”.

[170]Paragraphs 26.2.3 (see paragraph 244 on page 143 of our second reserved judgment) and 26.2.4 of the EVJD are incorporated here. The substance of what we said at the end of paragraph 245 on page 143 of our second reserved judgment is incorporated here via the following words. The procedure to be followed in carrying out a till lift was stated in C7/53, including by removing coupons from the coupon bin, and Ms Williams was required to witness and verify (by signing) the till lift report.

[171]If asked by the manager to do so, Ms Williams would (see paragraph 256 on page 146 of our second reserved judgment) lock the cigarette gantry by pulling down and locking the shutters. Leaving the store: paragraph 27 of the EVJD

[172]Paragraph 27.1.1 of the EVJD is incorporated here. “Additional aspects of the job”: paragraph 29 of the EVJD Training new recruits Case Numbers: 3304495/2018 & others 129

[173]Our replacement words for paragraph 29.1.1 of the EVJD, set out at the end of paragraph 263 on page 148 of our second reserved judgment, are incorporated here, with references to “the JH” replaced for the sake of clarity, namely: Rarely, Ms Williams was required to help to train new recruits to the role of customer assistant by working alongside the new recruit for about a week, with the recruit shadowing her (Ms Williams) so that she could show the recruit how to do the tasks which she was doing and with her being available(1) to answer any questions asked by the recruit about the work and

(2) otherwise to give assistance when she saw that it was necessary. Posture at the mainbank checkout

[174]C7/79 is incorporated here (given what we say about paragraph 29.2.5 of the EVJD in paragraph 265 on page 148 of our second reserved judgment). It was applicable to a customer assistant such as Ms Williams who stood at a checkout and had no opportunity to sit behind it. Cleaning

[175]Paragraph 29.4 of the EVJD and what we say in paragraphs 268 and 269 on page 149 of our second reserved judgment, are incorporated here, via the following words (which we thought were sufficient, as we say in paragraph 268): Ms Williams had responsibility, as did all other members of the respondent’s shop floor staff, for seeking to ensure that all parts of the store were safe for all persons on the premises, through having an individual as well as a shared responsibility for keeping those parts reasonably clean and reasonably free from the risk of slips and trips. The manner in which Ms Williams was required to comply with that responsibility was shown by pages 13-15 and 27 of C7/142. Recycling of card and plastic

[176]Pages 4-6 of C7/262 are (for the reasons stated in paragraph 272 on page 150 of our second reserved judgment) incorporated here. Assuming that it adds something (which we doubted), paragraph 29.6.5 of the EVJD is incorporated here. Waste

[177]Paragraph 29.6.3 of the EVJD is incorporated here. Dealing with shoplifters

[178]Ms Williams was required to apply the guidance at pages 2-6 of C7/147 (we regarded those pages as being already incorporated via paragraph 11 of appendix 1 at page 90 above, but for the avoidance of doubt they applied to all of the sample claimants when they were working on the shop floor when the store at which they were working Case Numbers: 3304495/2018 & others 130 was open to the public) in relation to the risk of theft and aggression by visitors to the respondent’s premises. The risk of aggression was diminished when a security guard was present at the store, which was as stated in the respondent’s proposed words for paragraph 1.2.2 of the EVJD, which were these. “From the start of the RP until 9 July 2017 and again from 1 July 2018 until the end of the RP, a security guard worked in the store from 15:15 – 23:00 every day. From 10 July 2017 until 13 November 2017, there was no security guard in the store. From 13 November 2017 until 30 June 2018, a security guard worked in the store from 18:00 - 23:00, every day. When on shift, the security guard is located in between the store entrance and the checkouts and given the short distance, is able to clearly see and hear what is going on at the checkout, as well as at the entrance to the store. As there is a large area around the checkouts and entrance without much shelving, the security guard has a good view of the store. The security guard also walks around the shopfloor and walks over to any customers looking suspicious to deter shoplifting.”

[179]For the avoidance of doubt, we have included those words on reconsideration on the basis that they are (as we concluded on reconsideration) relevant to the determination of the demands of a customer assistant doing the job which Ms Williams did.

[180]Paragraphs 29.7.3, 29.7.4 and 29.7.5 of the EVJD (despite the repetition in paragraph 29.7.5 of what was said on C7/147/4 in different words, and on the basis in that regard that the content of the bullet point in paragraph 29.7.5 about swapping reduction labels was not specifically referred to at C7/147/4) are incorporated here.

[181]The respondent’s proposed words for paragraph 29.7.6 of the EVJD are incorporated here, namely: “If the Bell System (three rings) is used by a colleague and the JH is replenishing, the JH and all other colleagues in the store immediately stop the work being undertaken and gather together at the front of the store. JH would not approach a shoplifter or otherwise prevent them from leaving the store. The store door is not placed on manual mode to prevent the shoplifter leaving the store”. Dealing with a trespasser

[182]Paragraph 29.8.1 of the EVJD is incorporated here. Pest control

[183]Paragraphs 29.9.1-29.9.3 of the EVJD are incorporated here, read with pages 36 and 37 of C7/697. Paragraph 30.19 of the EVJD: more about working conditions Case Numbers: 3304495/2018 & others 131

[184]When the store was open and Ms Williams was working on the shop floor then she worked in the following further conditions (which are taken from the bullet points in paragraph 30.19 of the EVJD):184.1 having to handle chilled and frozen items (e.g. milk);

184.2 unpleasant odours from customers with poor personal hygiene;

184.3 occasional odours from leakages from the packaging for produce such as fish, meat and milk;

184.4 potential hazards from broken glass (every few months);

184.5 potential injuries from spilled liquids;

184.6 the risk of minor cuts to hands and arms as a result of the sharp plastic on the shelf edge stripping;

184.7 the risk of a crush injury to the fingers; and

184.8 having to work in proximity to customers on the shop floor with baskets, wheeled shoppers, mobility scooters and other mobility aids, guide dogs, and push-chairs or prams. Things which we omitted from the above statement of the work of Ms Williams the reason for which omission may not already be clear The presence of customers

[185]What was said in paragraphs 1.2.6 and 30.10 of the EVJD was less informative and comprehensive than what was said at C7/142/13-16.

[186]What was said in paragraphs 1.2.7, 1.2.8, 30.8 and 30.9 of the EVJD was rendered unnecessary by what we say in paragraphs 10-12 of appendix 1 on page 90 above. Filling equipment

[187]Paragraph 17.3.2 of the EVJD was rendered unnecessary by the incorporation of C7/860 and C7/353/2. Personal hygiene and related matters

[188]We did not consider the content of paragraphs 29.2 and 29.3 of the EVJD very closely when writing our second reserved judgment, if only because in so far as they were not a repeat of something said elsewhere in the EVJD they were agreed and were consistent with what was said at C7/142/25-28. However, on reconsideration we concluded that what was at C7/142/25-28 was a much better and more comprehensive statement of the requirements of the work of a customer assistant Case Numbers: 3304495/2018 & others 132 which were not stated elsewhere in the EVJD. What was at C7/142/25-28 (which are incorporated via paragraph 7 above and paragraph 25 of appendix 1 on page 91 above, read with paragraph 83.1 on pages 52-53 of our second reserved judgment and for the avoidance of doubt via paragraph 154.1 above) applied therefore instead of paragraphs 29.2 and 29.3 of the EVJD. Fire safety

[189]The content of paragraphs 29.10.1-29.10.4 of the EVJD was rather less informative of the work of a customer assistant in the position of Ms Williams than was the content of pages 17-23 of C7/142, from which it appeared what was in paragraphs 29.10.1-29.10.4 was drawn. Staff searches

[190]Paragraph 30.18 of the EVJD was unnecessary because of our incorporation of C7/147/10. Licked bank notes

[191]The bullet point in paragraph 30.19 of the EVJD about licked bank notes was unnecessary given what we say in paragraph 68 of appendix 1 on page 99 above. Case Numbers: 3304495/2018 & others 133 Appendix 3 The work of Ms Cannon and the conditions in which she did it The place where Ms Cannon worked, her job title, her working hours and the times when customers were present during those hours

[1]Ms Cannon worked for the respondent in the F&F (i.e. the clothing) department at Watford Tesco Extra (which is referred to in this Appendix 3 as “Watford”, or, as the case may be, “the store”) throughout the relevant period. Ms Cannon’s job title was “Customer Assistant - Nights”.

[2]Ms Cannon worked on two days a week. She did so working two shifts, namely(1) from Thursday evening to Friday morning and

(2) (except for the final four months of the relevant period, i.e. from April to October 2018) Sunday evening to Monday morning.

[3]Ms Cannon worked from 6.30pm to 3.30am on her Thursday to Friday shifts, with two 30 minute breaks, which Ms Cannon was able to take when she wanted. Thus, the number of hours she was employed to work during those shifts was 8.

[4]The hours which Ms Cannon worked on Sundays until April 2018 were from 3.30pm to 12.30am, with two 30-minute breaks. After March 2018, when Ms Cannon worked instead on Mondays, her shift was from 4pm to 8pm with a 15-minute break which she could take when she wanted.

[5]So, until April 2018, Ms Cannon worked 16 hours a week, and then from April 2018 to the end of the relevant period, she worked 12 hours per week.

[6]During the relevant period, the store was open to customers at all times except(1) midnight to 10am and from 4pm to midnight on Sundays, or

(2) midnight to 10am on Sundays and from 4pm on Sundays until 8am on Mondays. However, in practice, the store was open for another 10 minutes after 4pm on Sundays. The implications of the presence of customers

[7]The presence of customers on the shop floor, or their possible presence because the store was open for custom, meant the following things as far as the work of Ms Cannon was concerned.7.1 She was required to apply the principles relating to good customer service stated for example at pages 2-17 of C7/145.

7.2 She was required to “[r]emember [to put] customers ... first when tidying or putting out stock” (as stated at C7/616/12). That meant that she had continuously to be aware of the possibility of a customer approaching her and her having to stop what she was doing and respond to the customer. Case Numbers: 3304495/2018 & others 134

7.3 The respondent’s proposed words for paragraph 332 of the EVJD (which were a better description than those of the claimants) are incorporated here.

7.4 The claimants’ proposed words for paragraphs 335-338 of the EVJD are incorporated here (as they were a better description of the subject-matter of those paragraphs, in relation to which we preferred Ms Cannon’s evidence to that of Ms Humphreys to the extent that the latter had any direct evidence to give, which she accepted in cross-examination, at lines 18-21 on page 53 of the transcript of day 18, was limited).

7.5 Paragraphs 344b, 344d, and 345 of the EVJD (despite any overlap with what was said at C7/623/24, which we incorporate via paragraph 23 below) are incorporated here.

7.6 Paragraphs 349-365 of the EVJD (read with what we say in paragraph 195 on page 233 of our second reserved judgment) of the EVJD (despite overlap with C7/616/22-23) are incorporated here.

7.7 Ms Cannon was required to be vigilant to the risk of theft.

7.8 She was otherwise required to be aware of and take the steps referred to on pages 1-6 of C7/135. The risks in the working environment, and the steps which Ms Cannon was required to take to mitigate those risks

[8]Ms Cannon was required to be aware of and apply the guidance and requirements stated at pages 3-23 and 25-33 of C7/142 and C7/823, in particular, but not only, pages 7-25, 27-36 and 53-60 of that document.

[9]The risks to Ms Cannon from being on the shop floor when customers were present until April 2018 (and in part after then) were lower than they were for customer assistants who worked during the day, simply because there were fewer customers on the shop floor when Ms Cannon was working and the store was open than there were during the day. However, that there were nevertheless risks to Ms Cannon from being present on the shop floor is shown by C7/705, which included guidance of which Ms Cannon was required to be aware.

[10]Ms Cannon might reasonably have felt isolated and vulnerable given that the store was open to the public overnight at least from Thursday to Friday. The extent to which Ms Cannon was given instructions about what to do in a shift

[11]From the start of the relevant period until about the beginning of 2015 there was a team leader present at the start of Ms Cannon’s shift on Thursdays, and that team leader would (as stated in paragraph 38(a) of the EVJD) tell Ms Cannon what she needed to do during the shift, i.e. the tasks and the order in which she should do them. Case Numbers: 3304495/2018 & others 135

[12]After June 2014, Ms Cannon’s line manager would (as indicated in paragraph 38 of the EVJD) leave a handover note for the members of the F&F team, stating what she wanted them to do in their shifts. Examples are at C4/38.9, C4/38.10, C4/38.11, C4/38.12 and C4/38.13. Those notes were typically more detailed for Thursday night shifts than for Sunday night shifts. Ms Cannon was obliged to do what was stated on the note if possible, and was accountable to her line manager if she did not do what was asked of her.

[13]Approximately four times a year (i.e. occasionally) there would (as stated in paragraph 38(d) of the EVJD) be a more than minor reorganisation of the F&F department, in which case Ms Cannon’s manager would be present during a Sunday shift to oversee the reorganisation. The extent to which Ms Cannon would receive information about forthcoming events in the F&F department

[14]After June 2014, approximately monthly (i.e. regularly), as stated in paragraph 38(c) of the EVJD, Ms Cannon’s manager would hold a meeting for all of the F&F staff, at which the manager would inform the staff of the next month’s priorities and of any forthcoming developments. Clocking in, the existence of CCTV, and the possibility of being searched

[15]Ms Cannon was required to clock in, and CCTV was present throughout the shop floor and the warehouse. At the latest by April 2018 customer assistants in all of the respondent’s stores knew that their actions might be monitored via that CCTV in the circumstances described in C7/784. Ms Cannon was subjected to random searches as shown by C7/147/10-11. The physical environment in which Ms Cannon worked

[16]The environment in which Ms Cannon worked was the store’s warehouse and its shop floor. The F&F warehouse was (as we said in paragraph 26 on page 186 of our second reserved judgment) approximately 29 metres from the external warehouse doors of the main warehouse area.

[17]The temperature in the warehouse was (as we said in paragraph 27 on page 187 of our second reserved judgment, from which the whole of this paragraph is drawn) up to 2 degrees Centigrade different from that of the shop floor, but when the warehouse was cold, sufficiently warm clothing was available to Ms Cannon. The warehouse contained large pieces of electricity supply-related equipment in the vicinity of which Ms Cannon was required to work. The warehouse was a less congenial place to work than the shop floor.

[18]As we said in paragraph 29 on page 188 of our second reserved judgment,(1) the minimum proportion of the time that Ms Cannon spent in the warehouse was 35%, and

(2) she spent 50% of her Thursday to Friday shifts in the warehouse. Case Numbers: 3304495/2018 & others 136 The extent to which Ms Cannon interacted with colleagues when she was working

[19]As stated in paragraph 536 of the EVJD (which we accepted as accurate via paragraphs 30-33 on pages 188-189 of our second reserved judgment) Ms Cannon generally worked alone when replenishing or tidying the F&F department, and she was discouraged from talking to colleagues on the shop floor while doing so. The tasks which Ms Cannon was employed to do

[20]Our conclusions stated in paragraphs 43-47 on pages 191-194 of our second reserved judgement are incorporated here, as follows. On Thursday night shifts (“Thursdays”), Ms Cannon did the following tasks, using the quoted terms used by the parties:20.1 “Recovery”,

20.2 “Replenishment (including Availability and Tagging)”, and

20.3 “Processing Deliveries (including Scanning-in, Stripping and Pre-sorting)”.

[21]On Sunday night shifts,21.1 between 2012 and April 2014, when Ms Cannon worked alongside a colleague during her Sunday night shifts, Ms Cannon did what the parties called “Recovering the department from the weekend trading (including dealing with the pile of Returns)” and, if she had time to do it after finishing such “Recovering”, “conduct[ing] Availability ... of Essentials”; and

21.2 after March 2014 and to the end of the relevant period, Ms Cannon’s time was almost all taken up with such “Recovery”.

[22]The amount of time spent by Ms Cannon on the main tasks of her job, using her words, were as follows. Sunday shifts22.1 “Recovery: Around 5 to 7 hours”.

22.2 “Returns: Around 30 to 45 minutes”.

22.3 “Around 1h 30 mins of Availability”:

(1) “Filling up a silver from the backstock takes 45 mins – 1 hour”;

(2) “Replenishing a full silver onto the shop floor takes around 30 minutes (it is slightly quicker to off load than to load a silver because, when loading the silver, I would organise it efficiently for Replenishment.” Case Numbers: 3304495/2018 & others 137 Thursday shifts (so up to April 2018)

22.4 “Processing deliveries (including Scanning-in, Pre-sort, Stripping and Tagging)”: (1) “Stripping rails takes around 30 to 40 minutes” (2) “Pre-sort takes between 4 hours and 4 hours and 30 minutes”.

22.5 “Replenishment of Essentials (including Ordinary Merchandising)”, which took “Around 2 hours (spent on the shop floor), including stripping of Essentials”.

22.6 “Recovery/ Availability/ Replenishing left over rails”: “I do this for around 1 – 2 hours at the beginning or end of my shift, depending on when the delivery arrives”. Monday shifts (so after March 2018)

22.7 “Around 2 hours 30 minutes spent on Availability of Men’s Essentials (and occasionally Hanging items) including Tagging”.

22.8 “Around 1 hour and 30 minutes on Recovery of the Men’s department, both Essentials and Hanging.” Ms Cannon’s work in the F&F department in carrying out those tasks Overview

[23]C7/605 (“My role in F&F: 1. Introduction”) is incorporated here. So are C7/623 (“Pride in F&F”; it looked as if three pages were missing between pages 27 and 30) and C7/226 (“F&F: Visual Merchandising Principles Pack”). Although parts of the latter were relevant only to the work of a manager such as Ms Humphreys, the document was a very good statement of what was involved in maintaining the F&F shop floor displays. Occasional task of pulling newly-delivered UODs to the F&F warehouse

[24]Occasionally (see paragraph 53 on page 195 of our second reserved judgment), Ms Cannon would pull newly-delivered UoDs of F&F stock from the back door to the F&F warehouse (i.e. about 29 metres: see paragraph 16 above).

[25]Paragraphs 63-68, 71-72 and the first sentence of paragraph 73 of the EVJD as advanced by the claimants by the time of closing submissions, are incorporated here. Any reference below to any part of the EVJD is, unless otherwise stated, a reference to that part of the EVJD as it was proposed by the claimants by the time of closing submissions, including where we have in our second reserved judgment resolved a factual issue raised by the respondent in favour of the claimants. For the sake of brevity, in the latter circumstances we have not always cross-referred to the relevant Case Numbers: 3304495/2018 & others 138 part of that judgment. In some cases, for the sake of clarity and the avoidance of any doubt, we have included some text which in effect repeats what we have just said.

[26]Paragraph 83 of the EVJD is incorporated here. The weight of a fully-loaded cage was (as the respondent said in response to paragraph 532 of the EVJD) about 60kg. Issues arising from moving UODs

[27]The risks arising from moving UODs from the back door to the F&F warehouse were discernible from C7/142/8-10 and as described by the claimants in paragraph 81 of the EVJD as it stood by the time of closing submissions, namely:27.1 heavier trays were often placed on top of lighter trays, which Ms Cannon came across multiple times a shift;

27.2 on average, 2 cardboard boxes of clothes per delivery were balanced on top of stacks of trays;

27.3 trays could be over-filled. If the top tray was overfilled, then clothing would slip off of the stack as shown by the photograph on the bottom half of C4/1/109. If a bottom or middle tray was overfilled then, as happened around once per delivery, the trays above rested on clothes themselves and not the tray, making the stack unstable;

27.4 throughout the Relevant Period, potholes and cracks appeared in the warehouse floor, rendering the surface uneven; and

27.5 at least once a delivery, Ms Cannon came across a tray where the plastic arms of trays, which were used when stacking to support the trays above, were broken. When such a tray was in the middle of stack, it made all the trays above it unstable.

[28]The guidance at C7/660/67-69 is incorporated here. Paragraph 93 of the EVJD is incorporated here.

[29]Ms Cannon would (as indicated in paragraph 82 of the EVJD: see paragraph 56 on page 196 of our second reserved judgment) regularly have to deal with a roll cage which was covered from top to bottom with several layers of plastic wrap, which Ms Cannon was required to remove with a case cutter as defined at C7/0.1/10, namely a “case opening safety knife”.

[30]Occasionally (as indicated in paragraph 85(c) of the EVJD; we wrongly referred to paragraph 85(d) in paragraph 68 on page 198 of our second reserved judgment), plastic wrap would get caught in the wheels of a cage, resulting in a need to extricate the wrap.

[31]Some faults on UODs were sufficiently minor to be overlooked, and Ms Cannon’s work (as with that of all other persons employed by the respondent who moved roll Case Numbers: 3304495/2018 & others 139 cages and dollies: see paragraph 70 on pages 198-199 of our second reserved judgment) was to continue to use and move roll cages and dollies which were faulty unless the fault interfered to such an extent with the use of the cage or dolly that it was unsafe to use it, at which point Ms Cannon’s work involved taking the cage or dolly out of use. That occurred, as stated in paragraph 92 of the EVJD, rarely. That paragraph is incorporated here.

[32]The warehouse was a busy area and as a result, regularly, (as stated in paragraph 85(f) of the EVJD) when pulling a roll cage, Ms Cannon had to stop and move the cage to the side to create space to let a colleague pass by. The “prepare” part of the “replenishment cycle”

[33]C7/612; (“My role in F&F: 2. Prepare”) is incorporated here. Validation

[34]Ms Cannon’s first role in relation to newly-delivered stock was (see C7/612/9 and step 18 on C7/866/4) to “validate” the stock and “add in missed products” by obtaining an “RFID handheld” device, of the sort described in detail at C7/865.

[35]PDAs (of one sort or another) were (as we conclude in paragraph 73 on pages 200- 201 of our second reserved judgment) used throughout the relevant period to “validate” deliveries.

[36]Paragraph 100 of the EVJD, read with what we say in paragraph 75 on page 201 of our second reserved judgment (as additional things, not replacing the content of paragraph 100 as proposed by the claimants), is incorporated here.

[37]Paragraphs 101 and 102 of the EVJD, concerning the RFID device, are incorporated here.

[38]The handheld PDA or RFID device would (see our conclusion stated in paragraph 78 on pages 201-202 of our second reserved judgment) frequently freeze. When it did, Ms Cannon would either find another one or carry on with her current task and scan the items when she next had a working PDA or RFID device.

[39]In order to validate the stock received in a delivery, Ms Cannon was required to follow steps 5-8 of C7/866, or, as the case may be, steps 5-17 of C7/866. Paragraphs 106-110 of the EVJD are incorporated here. Pre-sorting Overview

[40]C4/19/5-16 are incorporated here in so far as they related to the work which Ms Cannon did. Case Numbers: 3304495/2018 & others 140

[41]Paragraphs 79 and 80 on page 202 of our second reserved judgment (about what “pre-sort” meant in practice for Ms Cannon) are incorporated here. Security tagging

[42]During pre-sorting, the JH was required (see C7/612/8) to check for swing tickets and security tags. Those tickets and tags and how they needed to be used were described at C7/612/12-13 and C4/19/30-33 and 35. Paragraphs 299-308 of the EVJD as proposed by the claimants by the time of closing submissions and as supplemented by what was said at C4/19/30-33 and in the final sentence of paragraph 82 on page 203 of our second reserved judgment, are incorporated here. The pre-sorting process

[43]Paragraphs 111, 112 (with, as we say in paragraph 91 on page 205 of our second reserved judgment, the figure of 75% substituted for 50%; that conclusion applied also to paragraphs 122 and 166 of the EVJD), and 113 of the EVJD are incorporated here.

[44]The subject-matter of paragraph 114 of the EVJD was interlinked with the subjectmatter of paragraph 123 of the EVJD. Paragraph 114 is incorporated in the light of what we say in paragraph 297 on page 79 above and in the light of what we are about to say. Paragraph 114(e) is replaced by these words. “empty trays, which the JH would obtain from those left over in the F&F Warehouse from previous deliveries unless there were no such empty trays, in which case the JH would first have to pre-sort sufficient items in order to free up enough empty trays as described in paragraphs 123-127 of the EVJD.”

[45]The frequency with which that occurred was disputed: the respondent submitted in response to paragraph 114 of the EVJD that it did not happen at all, but in response to paragraph 123 of the EVJD, the respondent appeared to submit that it happened about 10% of the time, but then also appeared to repeat the contention that it did not happen at all. The respondent also submitted that paragraph 123 of the EVJD was a duplication of paragraph 117 of the EVJD. What Ms Cannon said in paragraph 99 of her first witness statement, which we have set out in paragraph 295 on page 79 above, showed that she needed four empty trays for pre-sorting Essentials. We concluded that it was impossible on the evidence before us to come to a firm conclusion on the precise frequency with which the need to clear trays arose. We saw that in Ms Cannon’s witness statement at E1/4/87, the parties were said to have agreed that the frequency with which the need to clear plastic waste (as described in paragraph 117a of the EVJD) arose was best described as “regularly”. Both parties appeared to have linked that factual issue with the question of how often there were empty trays left for Ms Cannon to use. We concluded as a result that the right word to describe what happened as stated at the end of the preceding paragraph above was “regularly”. Case Numbers: 3304495/2018 & others 141

[46]Paragraphs 115 and 116 of the EVJD, and paragraphs 117a and 117d of the EVJD with (we concluded on reconsideration) the word “regularly” used instead of a percentage are incorporated here.

[47]Paragraph 117b of the EVJD was linked in the claimants’ submissions with paragraph 193 of the EVJD. They were in substance a duplication. The claimants in submissions simply relied on what they said in relation to paragraph 193. The factual issue was how often Ms Cannon would “Replenish 2 to 5 [or, as the respondent proposed, “any”] running rails of Hanging items which [were] in the F&F Warehouse at the start of JH’s shift [or, as the respondent proposed, “if the F&F shop floor were tidy and the delivery had not arrived”] that JH’s Day colleagues did not have time to get to”. The claimants said that it happened “regularly before 2014 and occasionally from 2014 onwards”. We initially failed to see why this dispute was maintained (and that was consistent with our conclusion stated in paragraph 54 on page 166 of our second reserved judgment). But on reconsideration, we could see that the parties were in dispute about the frequency because the respondent’s evidence was that Ms Cannon mainly did replenishment of Essentials, so that if she also replenished hanging items then that would, it was possible, mean that she had more demands on her than if she for the vast majority of the time only replenished Essentials. In the table at the back of Ms Cannon’s witness statement, at E1/4/89, Ms Cannon said in this regard: “Whether or not I have to Replenish the rails depends on whether there was someone in to work those rails or whether they were busy doing markdowns or checkouts.”

[48]The dispute was said by the claimants in the next column of the table to be between the use of the word “occasionally” and the word “regularly” (for which the claimants contended). The proposition that it happened twice a year was advanced by the respondent by reference to its submissions advanced in response to paragraph 39 of the EVJD. (We note here, incidentally, that this single factual issue of the frequency with which the claimant put out stock from a running rail that had been pre-sorted by staff on a previous shift was maintained in relation to three separate parts of the EVJD.) The respondent’s submissions in response to paragraph 39 of the EVJD relied on what Ms Humphreys said in paragraph 237 of her first witness statement, at E4/9/50 and what Ms Cannon said in line 17 on page 114 of the transcript of day 17. Paragraph 237 of that witness statement was as follows. “Very occasionally, (around once every six months), Janice filled up to five running rails of Hanging clothing pre-sorted but not filled by the Wednesday Night team. This arose only if the delivery arrived late and once the shop floor had been tidied. Given that Janice almost exclusively filled Essentials, it was generally far more efficient for Janice to leave any Hanging clothing to be filled by a colleague who did so regularly.”

[49]Line 17 on page 114 had to be read in the light of the disagreement of Ms Cannon (recorded in the passage immediately preceding that line) with the proposition that the event occurred once every 6 months. If it happened once every 3 months Case Numbers: 3304495/2018 & others 142 instead, then the characterisation for the purposes of H31 would still be (as contended for by the respondent) “occasionally”.

[50]At pages 133-134 of the transcript of day 18, Ms Humphreys was recorded to have said that “if the delivery was late, she would definitely do it , but .... if there was rails left over, but more often than not those rails would be left and just added to that delivery, because the main task for the night team was presort and then Essentials.” That did not sound like a twice-yearly event. The proposition that it occurred 50% of the time was put to Ms Humphreys on the basis that she had said that it occurred only 10% of the time, and she simply disagreed. In paragraph 22 of her first witness statement, at E4/9/6, Ms Humphreys said that she was “present at the start of most of [Ms Cannon’s] Monday shifts, many of her Thursday shifts, and some of her Sunday shifts”. Given what we say in paragraphs 94-99 on pages 178-179 of our second reserved judgment and in paragraph 82 on page 203 of that judgment about the reliability of certain aspects of the evidence of Ms Humphreys, we concluded that the evidence of Ms Cannon was to be preferred here, so we accepted the claimants’ proposed word to describe the frequency with which she replenished from a presorted running rail of clothing which was not part of the Essentials range, namely “regularly”. Paragraph 117b of the EVJD is incorporated on the basis of that frequency (incidentally making paragraph 193 of the EVJD redundant).

[51]Paragraph 117c of the EVJD was linked in the claimants’ submissions with paragraph 192 of the EVJD. Those paragraphs were in substance a duplication. The claimants in submissions simply relied on what they said in relation to paragraph 192. The dispute was about the frequency with which Ms Cannon replenished “the 1 or 2 stacks of Essentials which [were] usually in the F&F Warehouse at the start of JH’s shift that the previous Night’s colleagues did not have time to get to.” That was said by the claimants to have occurred regularly, and by the respondent to have occurred only “Once every two months ... but only after the floor had been tidied and the delivery processed”. Since replenishing Essentials was said by the respondent to have been the main work of Ms Cannon, it was odd that this dispute was maintained. But maintained it was, and, putting our doubts about the necessity to determine the dispute aside, to resolve it we applied the same analysis of the evidence as we do in the preceding paragraph above: we preferred the evidence of Ms Cannon because of what we regarded as the objectively-proven unreliability of the evidence of Ms Humphreys to which we refer in paragraphs 94-99 on pages 178-179 of our second reserved judgment and paragraph 82 on page 203 of that judgment. Accordingly, paragraph 117c of the EVJD is incorporated here on the basis that what it described occurred regularly (incidentally making paragraph 192 of the EVJD redundant).

[52]Paragraphs 118 and 119 of the EVJD are incorporated here on the basis that what Ms Cannon’s colleagues did was not relevant: it was what Ms Cannon did that was relevant. That was subject to the caveat that it might be relevant that it might be more congenial to work with colleagues instead of alone, so, for the avoidance of doubt and on that provisional basis, we accepted what the respondent proposed in principle. Nevertheless, since no frequency was given by Ms Humphreys for the occasions when Ms Cannon worked with colleagues instead of alone, we accepted the claimants’ words in their entirety. Case Numbers: 3304495/2018 & others 143

[53]We accepted the respondent’s position on the opening words of paragraph 120 of the EVJD, which was that Ms Cannon did not need to look at every item she was presorting since the same ones will have been easily discernible. So, Ms Cannon (and any other F&F customer assistant, of course) was required only to look at one of each discrete item, and not every item, in order to see whether it was “an Essential or Hanging item”, which had to be put respectively “into a tray” or “onto a running rail”. Otherwise, we concluded (in relation to the evidence of Ms Humphreys on the same basis as stated in paragraphs 50 and 51 above) that the words proposed by the claimants for paragraph 120 of the EVJD were correct so that that paragraph should be incorporated here, read in the light of what we say above in this paragraph. The impact of rainwater on the pre-sorting process

[54]In response to paragraph 121 of the EVJD, the respondent said that stacks of trays and cages would arrive wet with rainwater occasionally albeit “no more than once every three months”. Presumably that was not on the basis that it rained no more than once every three months. There was a cross-reference in the claimants’ closing submissions to paragraph 528 of the EVJD, and that was evidently because when the stock was wet, the customer assistant decanting it would get wet. This was one of the disputes that we originally expressly declined to determine, for the reasons given in paragraph 106 on page 208 of our second reserved judgment. The claimants’ case was also that stock arrived wet occasionally. We could not see why it might make a difference whether or not the word “occasionally” was qualified by the words “but no more than once every three months”. Nor could we see how Ms Humphreys could reliably say that the event occurred no more than once every three months. In those circumstances, we concluded that the claimants’ proposed words in paragraph 121 should be incorporated here. Those words were to the same effect as the words of paragraph 528 of the EVJD, but the latter added an assertion that the clothing of the customer assistant would get wet as a result of the stock arriving in wet containers and packaging. For the reasons given in paragraph 307 on page 81 above, we accepted that paragraph 528 of the EVJD was accurate and therefore that it should be incorporated here.

[55]Ms Humphreys also said (in paragraph 182 of her first witness statement, at E4/9/41) that the photograph of one instance of the situation, at the top of C4/1/112, was not representative. We were prepared to, and did, conclude that it was a photograph of the most wet that items would tend to arrive. Pre-sorting items delivered in stacks of trays

[56]Paragraph 122 of the EVJD with (see paragraph 43 above) the respondent’s proposed words in relation to paragraph 122a added at the start “(around 25% of the time)”, is incorporated here.

[57]Paragraphs 123-131 of the EVJD are incorporated here on the basis that a customer assistant who was not tall enough to see through the “handle hold” in a “row of delivered stacks of trays” would be able to use a kickstool for that purpose. Case Numbers: 3304495/2018 & others 144

[58]Paragraph 132 of the EVJD is incorporated here read with what we say in paragraph 93 on page 205 of our second reserved judgment, namely that the average weight of the trays which Ms Cannon was required to move from the dollies on which they arrived at the store was 5.5kg.

[59]While in some ways we thought that paragraphs 133-141 of the EVJD stated what was implicit (such as paragraph 139), we could see why the steps were stated in the detailed sequence set out in those paragraphs, namely to enable the IEs and us to see all aspects of the effort and (albeit limited) decision-making involved in the process of pre-sorting. As an aside, we record here that that in itself caused us to recognise (during this process of reconsideration) that the detailed processes which the AMCs required the comparators to follow needed to be seen in the same light, although in the case of those processes, the steps were already stated in one way or another in most of the training materials.

[60]The opening words of paragraph 142 of the EVJD (for the avoidance of doubt as proposed by the claimants: see paragraph 95 on page 206 of our second reserved judgment), concerning the pre-sorting of shoes and handbags, is incorporated here. (The rest of paragraph 142 is a duplication.) Pre-sorting roll-cages of Hanging clothes

[61]The heading “Pre-sorting roll-cages of Hanging clothes” related to the content of paragraphs 150-164 of the EVJD. One of the disputes which, in paragraph 106 on page 208 of our second reserved judgment, we expressly declined to determine was the one which related to paragraph 155 of the EVJD. Otherwise, we determined the disputes in paragraphs 150-164 of the EVJD by what we said in paragraphs 97-100 on page 206 of our second reserved judgment. That was to accept the claimants’ proposed words for all of the disputed parts of paragraphs 150-154 and 156-164 with the exception of the final sentence of paragraph 161, which was to be ignored or treated as deleted.

[62]As for paragraph 155 of the EVJD, on reconsideration we concluded that what the respondent proposed made sense in the light of what was at C4/19/14-15 and what was in paragraph 156 of the EVJD. Accordingly paragraphs 150-164 of the EVJD, with paragraph 155 as proposed by the respondent, are incorporated here. Pre-sorting roll cages of boxed clothes in the Warehouse

[63]Paragraphs 166 paragraphs 168-172 of the EVJD, read with what we say in paragraphs 102 and 103 on page 207 of our second reserved judgment, are incorporated here. Clearing the F&F Warehouse after the Pre-Sort

[64]Paragraphs 173 (for the avoidance of doubt as proposed by the claimants by the time of closing submissions, incorporating by reference the photograph at the top of Case Numbers: 3304495/2018 & others 145 C4/1/114, to which reference was obviously intended to be made) and 174 of the EVJD are incorporated here. Stripping Pre-Sorted Deliveries

[65]Paragraphs 175-182 of the EVJD, excluding (see paragraph 304 on page 81 above) paragraph 182a (the first one; in bold font in the Leigh Day claimants’ closing submissions), and with the finding of fact stated in paragraph 301 on page 80 above about the content of paragraph 177(e), are incorporated here. That is despite the fact that paragraph 181 of the EVJD stated something which was obviously required when a waste cage was full of plastic waste. Presumably it was included to ensure that the IEs and we did not fail to take into account the effort involved in wheeling the cage to the relevant part of the store’s warehouse, retrieving an empty cage, collecting a fresh plastic bag from the roll, and then preparing another plastic waste cage (as described in paragraph 174(c) of the EVJD). What was omitted, but which was also obvious, was that there was then a need to wheel that cage back to the area where the pre-sorting was being done. Stripping Essentials on the shop floor

[66]Paragraphs 183-185 of the EVJD are incorporated here (putting it beyond any doubt that the process of stripping of plastic waste would need to be done on the shop floor if it were not done in the warehouse). The “present” part of the “replenishment cycle” What was shown by the training materials

[67]Paragraphs 107-121 on pages 208-213 of our second reserved judgment are incorporated here. The fitting rooms

[68]Paragraphs 179-181 on pages 228-229 of our second reserved judgment are incorporated here. So are paragraphs 508-509 of the EVJD. Promotions

[69]Paragraphs 447-466 of the EVJD, read with what we say in paragraphs 196-200 on pages 233-235 of our second reserved judgment, are incorporated here.

[70]Paragraph 188 of the EVJD, read with what we say in paragraphs 126-131 on pages 214-215 of our second reserved judgment, is incorporated here, but with the word “Essentials” after “JH Replenishes” deleted. That is because paragraph 188, read with(1) what we said in paragraphs 111-121 and 126-131 on pages 209-215 of our second reserved judgment and

(2) what was said in the documents to which we refer there, described the manner in which an F&F replenisher such as Ms Cannon was required by the respondent to do the work of replenishing on the shop floor. It is also Case Numbers: 3304495/2018 & others 146 because it involved unnecessary and unhelpful repetition to refer to what merchandising involved in more than one place. On that basis, paragraphs 270-287 of the EVJD are incorporated here, with the disputes about the frequency with which particular issues arose being in our view, i.e. our judgment, irrelevant. That was on the basis that the job of an F&F replenisher such as Ms Cannon was to be alert to the possibility of the need to do all of those things the frequency of the need to do which was disputed by the respondent. The job of such a replenisher was therefore in our judgment to do them as seemed necessary, applying the principles in the training materials such as C7/616, where, at page 10, we noted, one of the four “Key points” stated on that page was this: “Be flexible and creative When flexing space, think about what stock you have, try to be flexible and creative.”

[71]Paragraph 288 of the EVJD read with what we say in paragraph 133 on page 216 of our second reserved judgment is incorporated here. Paragraph 289 of the EVJD was helpfully expanded by the respondent’s words (albeit without any substantive change to the content of the paragraph, as far as we could see) and is therefore incorporated here as so expanded.

[72]Paragraphs 290-293 of the EVJD are incorporated here (albeit that paragraph 290 must be read in the light of what is said in the documents incorporated by reference by what we say in paragraph 67 above).

[73]Although paragraph 190 of the EVJD was in part repetitive, we incorporate even its repetitive parts for the sake of completeness and on the basis that the paragraph added to the picture of Ms Cannon’s work, in the following manner.

[74]Subparagraphs a, c (with the cross-reference to paragraphs 299-309 of the EVJD deleted; tagging is dealt with by us in paragraph 42 above), e, f (read in the light of the training materials to which we referred in paragraphs 107-120 on pages 208-213 of our second reserved judgment and not paragraphs 269-331 of the EVJD) and g are incorporated here. Paragraphs 190h and 190i of the EVJD are incorporated in the light of the part of C7/865 which we set out in paragraph 156 on page 221 of our second reserved judgment, but without the cross-reference to paragraph 99 of the EVJD, i.e. as follows. h. returns the silver / rail / dolly to the F&F Warehouse with any items which were not put out on display on it, via the RFID portals when those were in place (which was to about the end of 2014) and after then using a hand-held RFID Device to record those items as moving from the shop floor back to the F&F Warehouse (as stated in C7/865), and sorting them as backstock into the relevant M/W/C racking together with any other items of the same product, and i. repeats the process for the other Pre-sorted silvers/ rails / dollies. Case Numbers: 3304495/2018 & others 147

[75]Paragraph 195 of the EVJD (stating the obvious, but nevertheless a reminder of what an F&F customer assistant would need by way of equipment and stock in order to start replenishing) is incorporated here. Working with running rails

[76]Paragraph 196 of the EVJD is incorporated here, as is our finding of fact about the content of paragraph 197 of the EVJD stated in paragraph 136 on page 216 of our second reserved judgment (and not, as stated in paragraph 63 on page 197 of that judgment, paragraph 135), namely that some running rail faults were sufficiently minor to be overlooked, and Ms Cannon’s work for the purposes of section 65(6) of the EqA 2010 (as with that of all other persons employed by the respondent who moved running rails) was to continue to use running rails which were faulty unless the fault interfered to such an extent with the use of the rail that it was unsafe to use it, at which point the job-holder’s work involved causing the rail to be taken out of use.

[77]We did not in our second reserved judgment deal with the parties’ contentions about paragraphs 198-199 and 201 of the EVJD. We now clarify that that was because we thought that what the claimants proposed was obvious. By way of illustration, we could see that it was possible in theory for a customer assistant to push the front of a running rail and walk by its side, as Ms Humphreys said in paragraph 244 of her first witness statement, at E4/9/51, but we could see too that that would involve walking and not (as Ms Humphreys said in that paragraph) standing, to one side of the rail, and that was probably not as safe as pulling the rail. Given what was said about pulling a roll cage at C7/142/9 (“Always walk backwards pulling the cage”), we thought that the claimants’ proposed words for paragraph 199 had to be correct. The image at the bottom of C4/19/20 showed a running rail being pulled, which in our view confirmed the correctness of that conclusion. Paragraphs 198-199 and 201 of the EVJD are accordingly incorporated here.

[78]Both parties were right in what they said about paragraph 202 of the EVJD in so far as they differed on it: to move through swing doors which close quickly, it is necessary to proceed both quickly and with care. Paragraph 202 of the EVJD is incorporated here on that basis.

[79]Paragraphs 203 (read with paragraph 138 on page 217 of our second reserved judgment) and 204 of the EVJD (concerning the same topic) are incorporated here. So is paragraph 205 (i.e. as proposed by the claimants), the respondent’s objection to which we did not discuss specifically in our second reserved judgment but which on reconsideration we concluded was mistaken. Working with “Silvers”

[80]Paragraphs 143-149 of the EVJD (for the avoidance of doubt read with what we say in paragraph 96 on page 206 of our second reserved judgment) are incorporated here. Case Numbers: 3304495/2018 & others 148

[81]Paragraph 207 of the EVJD (read with what we say in paragraph 139 on page 217 of our second reserved judgment) is incorporated here. Working with “Stacks of Pre-sorted trays on dollies”

[82]We failed to see why it would be necessary to see beyond a dolly with a stack of trays which was being pulled, as was implicitly claimed in paragraph 208a of the EVJD. We agreed, however, with the claimants that pulling the stack was required: as stated at C7/142/10 (“Always pull a dolly using a handle. You should only push a dolly to park it in a confined space.”). That was consistent with the image at the bottom of C4/19/20 (showing how a running rail was required to be moved: by being pulled). As a matter of fact, a person who was shorter than the height of the stack would have difficulty seeing past it, of course, but here it was not a material fact. Accordingly, paragraph 208 of the EVJD added nothing material except to remind us and the IEs that part of the work of Ms Cannon and therefore of an F&F customer assistant was to move dollies on the shop floor with the implications to which we refer in paragraphs 27 and 28 above.

[83]Paragraphs 209-211 of the EVJD are incorporated on the assumption that each step of the process of moving stock from the warehouse to the shop floor, including ensuring that the movement is recorded via an RFID device where required, needs to be taken into account by the IEs and us. The manner in which that was done was stated in C7/865, which we have already incorporated via paragraphs 34 and 74 above. Putting items out on display

[84]Paragraphs 215-219 and 221 of the EVJD (read with what we say in paragraph 140 on page 217 of our second reserved judgment and otherwise on the basis that the claimants’ proposed words were accurate and those proposed by the respondent were not because the latter were contradicted by the documents incorporated by reference by what we say in paragraph 67 above) are incorporated here.

[85]The respondent’s proposed opening words for paragraph 222 of the EVJD were apt; that paragraph is incorporated accordingly, i.e. starting “JH places items on to the displays so that on,”. That in our view (subject to submissions at the final hearing) rendered paragraph 223 redundant. That was because it was a duplication of paragraph 222, since for the purposes of section 65(6) of the EqA 2010, knowing that one has to do something in a particular way is in our view the same thing as doing it in that way. Counting them both as a demand would in our judgment (subject to submissions) amount to double-counting: the two are one and the same thing, or alternatively it would be unrealistic to separate them out.

[86]As a description of what Ms Cannon did and what any F&F customer assistant would be obliged to do, on the basis that their impact as far as demands within the meaning of section 65(6) of the EqA 2010 are concerned is for submissions at the final hearing, paragraphs 224-227 and 229 of the EVJD (i.e. as proposed by the Case Numbers: 3304495/2018 & others 149 claimants, which was consistent with the training materials incorporated by reference by paragraph 67 above) are incorporated here. Putting items back into the warehouse: “Backstock”

[87]We emphasise here for the avoidance of doubt that(1) the time pressures on both the sample claimants and their comparators are relevant to the question of whether or not the respondent has a material factor defence within the meaning of section 69 of the EqA 2010, and

(2) by saying that the opening words of paragraph 230 of the EVJD are not material facts at this stage, we are not casting doubt in that regard. For the avoidance of doubt, we regard the PI rates imposed on the comparators (whether with or without much effect on performance) as being distinctly relevant as far as the material factor defence is concerned, just as what we concluded in paragraph 205 on page 236 of our second reserved judgment is relevant to the question whether the respondent has a material factor defence. Accordingly, the respondent’s proposed words for paragraph 230 of the EVJD are incorporated here.

[88]Paragraph 231 of the EVJD stated the obvious, but we accepted that as part of a narrative of the work of an F&F replenisher such as Ms Cannon, it had to be included, subject to what we say about scanning in paragraph 74 above about scanning in relation to paragraph 190h of the EVJD.

[89]Paragraph 232, read with the images on pages 8, 10, 11, 13-15, and 22 of C4/19 as showing what the respondent required, is incorporated here. For the avoidance of doubt, figures 25-27 on pages C4/1/118 and the top of C4/1/119, are relevant factual material and therefore are incorporated here also.

[90]Paragraphs 233 and 234 of the EVJD are incorporated here, on the basis that the precise height of the racking is irrelevant, since the photographs at for example C4/19/22 showed the height, and the respondent implicitly accepted that the racking was above head-height. Replenishing shoes and handbags

[91]Paragraphs 235 and 236 of the EVJD are incorporated here read with what we say in paragraph 95 on page 206 of our second reserved judgment and therefore in the claimants’ proposed words.

[92]Paragraph 237 of the EVJD is incorporated here on the basis stated in paragraph 74 above in relation to scanning with an RFID device.

[93]Paragraphs 238, 239 (read with what we say in paragraph 141 on page 217 of our second reserved judgment), and 240-243 of the EVJD are incorporated here. Availability

[94]We agreed with the respondent that what the parties called “Availability” was “an integral part of” replenishment. Paragraph 244 of the EVJD is incorporated on that Case Numbers: 3304495/2018 & others 150 basis here, i.e. with the respondent’s opening words substituted for those of the claimants, as an introduction (which had no effect on the question of what were the demands of the work of an F&F replenisher) to the paragraphs of the EVJD which followed, namely 246-248. The respondent’s proposed correction of paragraph 246 was logically correct. The claimants’ proposed words for paragraph 247 were (given what we say in paragraphs 72-73 on pages 199-200 of our second reserved judgment) factually correct and those of the respondent were not. The respondent’s proposed opening words for paragraph 248 were more apt than those of the claimants. Paragraphs 246-248 of the EVJD are incorporated here on those bases.

[95]Paragraph 249 of the EVJD (concerning “availability”) was largely irrelevant narrative, since in our judgment the impact of targets was not relevant at stage 2 (although it will be relevant at the section 69 hearing starting on 1 September 2025). The essence of the task of “availability” was shown by what was set out by us in paragraph 201 on pages 235-236 of our second reserved judgment. So, on that basis, “availability” was as stated on C7/619/13 to be “backstock replenishment”, which was obviously required to be done as stated in the part of that passage set out at the top of page 236 of our second reserved judgment, namely “throughout the day”.

[96]Paragraphs 202 and 203 of our second reserved judgment are incorporated here as are these words in paragraph 204 on page 236 of our second reserved judgment: “if the JH saw a gap in a display, it would be her job to try to fill it”. Backstock replenishment

[97]As a factual description of what Ms Cannon did when obtaining backstock as part of the work of carrying out backstock replenishment, paragraphs 250-264 of the EVJD are incorporated here. For the avoidance of doubt, we accepted the claimants’ proposed words for all of those paragraphs.

[98]Paragraphs 265-266 (for the avoidance of doubt as proposed by the claimants) and 268 of the EVJD, describing what Ms Cannon did by way of putting out that backstock on display, even though they were in effect summaries, are incorporated here on the basis that they are a helpful narrative description by way of an overview of how Ms Cannon did the work of an F&F customer assistant putting backstock out on the shop floor displays. Dealing with items returned by customers

[99]Paragraphs 467-482 of the EVJD, read with what we say in paragraphs 206-214 on pages 236-239 of our second reserved judgment and paragraphs 107-109 below, are incorporated here. Re-arranging the department

[100]The respondent’s proposed words for paragraph 294 of the EVJD with the word “occasionally” substituted for “twice a year” are incorporated here. That conclusion on Case Numbers: 3304495/2018 & others 151 frequency was arrived at on the basis that what Ms Humphreys said in paragraph 400 of her first witness statement, at E4/9/76, was likely to be accurate, but that it was impossible to be as precise as she was in that paragraph, so that the word “occasionally” should be used for the first and third of the three of the events during which Ms Cannon twice did “ad-hoc merchandising” (seasonal changes, power aisle events, and “sales (for example the summer and Christmas sales)”). The conclusion was also arrived at on the basis of what we said in paragraph 133 on page 216 of our second reserved judgment.

[101]Paragraph 295 of the EVJD is incorporated here on the basis that what the claimants proposed was correct in principle, but also on the basis that Ms Cannon would when doing that work act under the guidance of her line manager. Power aisle events

[102]Paragraph 296 of the EVJD is incorporated here for the sake of completeness: we could not see a difference between merchandising a power aisle rack, for example, and merchandising any other rack. Paragraph 297 of the EVJD is also incorporated for the avoidance of doubt. (Its content happened to show that the respondent’s proposed words for paragraph 296 were in substance agreed.)

[103]The respondent’s proposed words for paragraph 298 of the EVJD were more consistent with the reality as shown by C4/19/78 than those proposed by the claimants, but we thought that the respondent’s proposed words were not wholly accurate. That was because of the room for individual discretion to which we refer in paragraphs 130 and 131 on page 215 of our second reserved judgment. Accordingly, we concluded that Ms Cannon would be provided with instructions from her line manager but that she was required to use some judgment when following those instructions led to what appeared to her to be an unsatisfactory result, and that her line manager would have the last word if there was a difference of opinion between them about how something should have been put on display. Recovery

[104]On reconsideration, having made the above determinations about the work of an F&F replenisher as done by Ms Cannon, we concluded that the task which the claimants called “recovery” and the respondent called “tidying” was best understood as ensuring what the respondent called its “Retail Standards” were maintained, in the manner shown by what was said at C4/19/68 which we set out in paragraph 120 on page 212 of our second reserved judgment.

[105]On reconsideration we saw that paragraph 374 of the EVJD, which was agreed and with which we had no reason to disagree when writing our second reserved judgment, stated simply: “Customers should be able to navigate the F&F area with ease.” That, obviously, was not a statement about the work of Ms Cannon, but it was a principle which would be relevant to the work of an F&F team. However, it was more relevant to the work of Ms Humphreys than that of Ms Cannon. In any event, the words appeared to have been taken from C7/226/7, which was about the “first Case Numbers: 3304495/2018 & others 152 VM [i.e. visual merchandising] principle”, which was “the Clothing Mat Layout”. In the middle of the page, this was said: “All fixtures are positioned in the correct locations so it is easy for customers to shop and navigate the mat.”

[106]We have already (via paragraph 23 above) incorporated C7/226 as a whole, although parts of it were relevant only to the work of a manager such as Ms Humphreys. Parts of the EVJD relating to what the claimants called Recovery were (in our judgment on reconsideration) nevertheless relevant to show how in practice the respondent’s Retail Standards were required to be maintained by an F&F customer assistant such as Ms Cannon. Those were paragraphs106.1 376 (stating why in practice the F&F displays needed to be, using the claimants’ word, recovered more frequently when the department had more customers coming through it),

106.2 378 (explaining why the department needed more tidying on a Sunday than during the week),

106.3 379 (regarding the manner in which Ms Cannon and her colleagues would collaborate on the task of recovery) in (see paragraph 134 on page 216 of our second reserved judgment) the respondent’s proposed words;

106.4 382 (about walking around the department at the start of a Sunday shift);

106.5 383 (see paragraphs 182-184 on pages 229-230 of our second reserved judgment); for the avoidance of doubt we could not see an evidential basis for the respondent’s dispute about the figure of 60 as a maximum rather than 40 for the number of items that might need to be returned to the shop floor, so we accepted that the number was 60;

106.6 384-385, 392 (see paragraphs 185-193 on pages 230-232 of our second reserved judgment; on reconsideration we thought it right simply to incorporate the claimants’ proposed words for paragraphs 384-385 and 392 of the EVJD), 387 and 388;

106.7 393 with (see paragraph 142 on page 218 of our second reserved judgment) the respondent’s proposed words;

106.8 394-399 read with what we say in paragraphs 143-154 on pages 218-221 of our second reserved judgment;

106.9 400-411 read with what we say in paragraphs 122 and 125 on pages 213- 214 of our second reserved judgment; and Case Numbers: 3304495/2018 & others 153

106.10 415-424 (concerning repacking packaged items and pairing up two-pieced items) read with what we say in paragraphs 122 and 124 on page 213 of our second reserved judgment. Price reductions or “sales and markdowns”

[107]The content of paragraphs 389-391, and 427-429 of the EVJD (read with paragraph 124 on page 213 of our second reserved judgment and paragraphs 160-163 on pages 222-223 of that judgment) is incorporated here.

[108]Paragraphs 432-436 (with the words proposed by the claimants for paragraph 436 as they were in our view apt and more accurate than those proposed by the respondent) and 444 of the EVJD are (read with what we say in paragraphs 164-173 on pages 224-227 of our second reserved judgment) incorporated here.

[109]Paragraphs 438-442 of the EVJD read with what we say in paragraphs 174-178 on pages 227-228 of our second reserved judgment, are incorporated here. Grocery replenishment

[110]Paragraphs 311-331 of the EVJD read with paragraphs 218-221 on page 240 of our second reserved judgment, are incorporated here. Cleaning

[111]Paragraphs 483-492 of the EVJD read with what we say in paragraphs 229-235 on pages 242-244 of our second reserved judgment, are incorporated here. Health and hygiene

[112]Paragraphs 493-495 of the EVJD, read with what we say in paragraphs 236-237 on page 244 of our second reserved judgment, are incorporated here. Standards of dress

[113]As stated at the end of paragraph 238 on page 245 of our second reserved judgment, a customer assistant in the position of Ms Cannon was required to comply with the standards imposed by the respondent’s staff handbook, which were shown by what was on pages 74-75 of C7/863, expanded if necessary by reference to the content of C7/777. Assisting new starters and agency staff

[114]Paragraphs 514-518 of the EVJD, read with what we say in paragraphs 239-245 on pages 245-247 of our second reserved judgment, are incorporated here. For the avoidance of doubt in case it is not already obvious, things which we did not include in the above statement of the work of Ms Cannon and why Case Numbers: 3304495/2018 & others 154

[115]Paragraph 85a of the EVJD was catered for by the words “Find the green moveable wheels and make sure they are closest to you” on C7/142/8.

[116]The proposed new paragraph 85b of the EVJD (“that wheels are jolted in different directions or get stuck when rolling over cracks and potholes in the floor, (see Figure 8 – Main warehouse showing uneven flooring on route to F&F Warehouse. Loading bay doors in background under the red panelling, Appendix 1: Photos and Diagrams)”) is in effect a repeat of paragraph 81d of the EVJD (“throughout the Relevant Period, potholes and cracks appeared in the warehouse floor, rendering the surface uneven”), for which we make provision in paragraph 27.4 above.

[117]Paragraphs 505-507 of the EVJD were unnecessary given our incorporation via paragraph 8 above of C7/142/17-23. Case Numbers: 3304495/2018 & others 155 Appendix 4 The work of Ms Thompson and the conditions in which she did it The places where Ms Thompson worked, her job title, her working hours and the times when customers were present during those hours and an overview of the work which she did 1 Ms Thompson worked for the respondent as a “Customer Assistant – Replenishment”. The period to which this appendix relates is (see paragraph 3 of the EVJD, namely in this appendix, the EVJD as it stood for Ms Thompson by the time of closing submissions) 13 October 2017 to 31 August 2018. 2 Paragraphs 4-6 and 26 of the EVJD (describing the place where Ms Thompson worked for the respondent during the relevant period) are incorporated here. So are paragraphs 3-12 on pages 248-251 of our second reserved judgment. 3 Paragraphs 11 and 12 of the EVJD are incorporated here. 4 Paragraphs 41-43 on pages 260-261 of our second reserved judgment are incorporated here. 5 Paragraph 25 of the EVJD is (given what we say at the end of paragraph 43 on page 261 of our second reserved judgment) incorporated here. 6 Paragraph 24 of the EVJD is (given paragraph 50 on page 263 of our second reserved judgment) incorporated here. Ms Thompson’s work of replenishment 7 The training materials to which we refer in paragraphs 14-39 on pages 252-260 of our second reserved judgment and what we ourselves say in those paragraphs, are incorporated here. 8 Paragraph 27 of the EVJD, read with what we say in paragraphs 52 and 53 on pages 263-264 of our second reserved judgment, is incorporated here. 9 Paragraphs 28 and 29 of the EVJD are incorporated here. Replenishing from cages generally 10 Paragraphs 30 and 31 of the EVJD, read with paragraph 54 (where the reference to “paragraph 86 below” was a mistake: it should have been to paragraph 85 below), the first sentence of paragraph 55 and paragraph 57 on pages 264-265 of our second reserved judgment, are incorporated here. Case Numbers: 3304495/2018 & others 156 11 On reconsideration, we concluded that the content of paragraph 32 of the EVJD was not so obviously irrelevant that it should not be included here. Paragraph 32 of the EVJD is accordingly incorporated here. So are paragraphs 33-35 of the EVJD. 12 The dispute maintained in regard to paragraph 36 of the EVJD was about whether or not Ms Thompson “left Cages in the Warehouse safely stacked and tidy before taking a Cage to the shopfloor to begin replenishing”, it being said by the respondent that “Logically, there was no need for JH to stack or tidy Cages, given she was at most dealing with one or two Delivery Cages at any one time, and JH has not provided any evidence of an occasion when she did so.” We did not determine this dispute in our second reserved judgment. We thought on reconsideration that the respondent had misread paragraph 36, which was about leaving the cages internally safely stacked (that being the applicable word, bearing in mind that it applied to the work of assembly in a DC) and tidy, and that it had nothing to do with the location in which a cage was left in the store’s warehouse. However, it would have been astonishing if the respondent had been willing to countenance a cage being left in anything other than an appropriate place in the warehouse, and it beggared belief that the respondent should propose that it was not part of the work of a replenisher to leave backstock cages tidily arranged. In fact, read with what we said in paragraph 26 on page 256 of our second reserved judgment, the respondent could not credibly propose that. It was also plainly contrary to the interests of the respondent for a cage to be left internally disorganised and therefore with items on it at risk of being damaged. In fact, we thought that it was obvious that the requirement stated in C7/373/5 to “keep the backstock areas tidy” as set out in paragraph 26 on page 256 of our second reserved judgment, covered the content of a cage as well as the manner in which cages were placed in the warehouse. Accordingly, we incorporate paragraph 36 of the EVJD here, read with what we say in this paragraph. 13 Paragraph 37 of the EVJD, read with what we say in paragraph 59 on page 266 of our second reserved judgment, is incorporated here. We add here that if the meaning of a term proposed by the claimants was clear, so that disputing it was of no perceivable benefit, then we have not determined the dispute about the proper terminology. We add by way of illustration that the proposition that it was necessary to propose a change of terminology from “Flat Tops” (as used in paragraph 37.3 of the EVJD) to “Flat Top Trollies”, made no sense to us in the circumstance that the parties knew here (as, by the time of writing this paragraph, did we) what was meant by a “Flat Top”. Checking high-value items 14 Paragraphs 38 and 39 of the EVJD are (given what we say in paragraphs 61-66 on pages 266-267 of our second reserved judgment) incorporated here, read with what we say in paragraph 60 on page 266 of our second reserved judgment. Checking for damaged goods 15 Paragraph 40 of the EVJD, read with what we say in paragraph 67 on page 267 of our second reserved judgment, is incorporated here. Case Numbers: 3304495/2018 & others 157 Backstock tasks 16 Paragraph 43 of the EVJD, read with what we say in paragraphs 68 and 69 on pages 267-268 of our second reserved judgment, is incorporated here. 17 Paragraph 44 of the EVJD is incorporated here. 18 Given what we say in paragraphs 70-77 on pages 268-270 of our second reserved judgment, paragraph 45 of the EVJD is incorporated here. 19 Paragraphs 46 and 55 of the EVJD, read with what we say in paragraph 81 on page 271 of our second reserved judgment, are incorporated here. Hardlines replenishment generally 20 Given what we said in paragraphs 78 and 79 on page 270 of our second reserved judgment, paragraphs 48 and 50-53 of the EVJD are incorporated here, albeit that they were in many ways simply descriptive of the merchandise which Ms Thompson replenished. Those paragraphs of the EVJD are therefore incorporated as helpful contextual background facts rather than as statements of the precise work that Ms Thompson did. 21 Paragraph 54 of the EVJD, read with what we say in paragraph 80 on page 271 of our second reserved judgment, is incorporated here. 22 Moving stock from the warehouse to the shop floor and putting it out on the shelves involved an element of discretion, as stated in the agreed paragraph 57 of the EVJD (i.e. the opening part of that paragraph, which had numbered subparagraphs). 23 On reconsideration, we concluded that Ms Thompson’s estimates of the percentages were marginally more likely to be accurate than those of Ms Parkin, and while we could not see it affecting the assessment (whether by us or the IEs) of the demands of the work of a hardlines replenisher such as Ms Thompson, we concluded that we should accept Ms Thompson’s estimate of approximately 90% stated in paragraph57.1 of the EVJD in relation to the extent to which she transported stock to the shop floor in cages (as opposed to on a blue/flat-top trolley or a hand pump pallet). 24 Paragraph

57.2 of the EVJD, read with what we say in paragraph 87 on page 273 of our second reserved judgment, is incorporated here. 25 On reconsideration, we concluded that we should accept the claimants’ proposed words for paragraph

57.3 of the EVJD (i.e. as proposed by the time of closing submissions, so with the erroneous terminology corrected), but read with what we said in paragraph 88 on page 273 of our second reserved judgment. (We erroneously Case Numbers: 3304495/2018 & others 158 referred in paragraph 89 of that judgment to paragraph 37.3 of the EVJD; we obviously meant to refer to paragraph 57.3 of the EVJD.) Cleaning as she went along 26 Paragraph 59 of the EVJD, read with what we say in paragraph 90 on pages 273-274 of our second reserved judgment, is incorporated here. Paragraph 278 of the EVJD was in our judgment on reconsideration a helpful statement of how Ms Thompson would in practice do what was required by way of cleaning as she went along when replenishing, and it is incorporated here. The number of cages “worked” per shift 27 The obvious statement in paragraph 60 of the EVJD that “When JH completed a Cage she returned to the Non-Food Warehouse to collect a new Cage” was in substance repeated in paragraph 268 of the EVJD. That statement is incorporated here to avoid there being any risk of the movement of Ms Thompson with an empty cage to the warehouse and back with a full one not being taken into account by the IEs and us. As for the number of such cages worked per shift, on one view that was, for the reasons stated in paragraph 91 on page 274 of our second reserved judgment, unlikely to be material. That was in part because moving a light cage would be less demanding than moving a heavy one. However, on reconsideration we concluded that the number of cages might be a relevant factor, so we concluded that it was relevant for present purposes. In fact, on reconsideration we could see that the claimants had accepted the respondent’s proposal: the number was between four and seven. On that basis, paragraph 60 of the EVJD was a simple repetition of parts of paragraph 268 of the EVJD. We concluded that the respondent’s objections to paragraph 268 of the EVJD descended into detail which was irrelevant. We accordingly incorporate here paragraph 268 as proposed by the claimants by the time of closing submissions. Moving cages to the shop floor 28 Paragraph 61 of the EVJD’s reference to the manner in which a cage should be moved did not need to be incorporated here given what was said at C7/142/5-12, which we have incorporated in this appendix via paragraph 2 above. The first sentence of paragraph 61 of the EVJD was obvious, but presumably was included to remind the IEs and us of the effort involved in moving a cage from the warehouse to the shop floor. 29 On reconsideration, we concluded that paragraph 61 of the EVJD, minus the second sentence, and read with what we say in paragraphs 82-85 on pages 271-272 of our second reserved judgment (to the effect that it was the aim of the respondent to minimise the need to walk between aisles when replenishing), should be incorporated here, so that while we acknowledged that cages might contain products for different aisles, it was part of the work of a replenisher to minimise the number of aisles between which she needed to move by pre-sorting as described in the extract in paragraph 85 on page 272 of our second reserved judgment. For the avoidance of Case Numbers: 3304495/2018 & others 159 doubt, paragraph 56 of the EVJD is not incorporated here, as it is unnecessary given what we say in paragraphs 82-85 on pages 271-272 of our second reserved judgment and C7/347, which for the avoidance of doubt we now incorporate. Perfume replenishment from a locked cupboard 30 Ms Thompson occasionally (see paragraph 93 on page 274 of our second reserved judgment) did what was described in paragraph 62 of the EVJD. “Filling up shelves”; paragraphs 63-72 of the EVJD 31 Paragraphs 63-68 of the EVJD, read with what we say in paragraphs 94-102 on pages 274-277 of our second reserved judgment (so, with the respondent’s proposed additions to paragraph 66 but otherwise in the terms proposed by the claimants as supplemented by what we say in paragraphs 94-99 on pages 274-276 of our second reserved judgment), are incorporated here. 32 Paragraphs 69-71 of the EVJD (relating to products left by customers in the wrong place), read with what we say in paragraphs 103-105 on pages 277-278 of our second reserved judgment, are incorporated here. Paragraph 72 of the EVJD; organising “reduced-to-clear” items 33 We were puzzled by the content of paragraph 72 of the EVJD when we returned to it in the process of reconsideration. It was, we saw from the claimants’ closing submissions, a simplification of paragraph 66 of the witness statement of Ms Thompson, which did make sense and which we saw no reason to reject. We therefore accepted that paragraph of Ms Thompson’s witness statement as a statement of fact about one aspect of her work and we incorporate it here (and not paragraph 72 of the EVJD). Paragraph 66 was as follows. “Occasionally I organised the shelves for Non-Food reduced-to-clear items. This involved deciding how to display the products that had gone into clearance and rearranging the shelves if necessary. When it was my turn to do this, it was included on my task list. Once every three months is my best estimate as to how often I did this during the Evaluation Period.” Stated prices for goods on display 34 Paragraphs 73 and 74 of the EVJD, read with what we say in paragraphs 106-109 on pages 278-279 of our second reserved judgment, are incorporated here, as is paragraph 76 of the EVJD. “Facing up” 35 Paragraphs 77-79 of the EVJD are incorporated here. “Special displays” Case Numbers: 3304495/2018 & others 160 36 Paragraph 80 of the EVJD with (see paragraph 110 on page 279 of our second reserved judgment) the respondent’s proposed additional words, is incorporated here. 37 Paragraph 81 of the EVJD, read with what we say in paragraph 111 on page 279 of our second reserved judgment, is incorporated here. 38 Paragraph 82 of the EVJD and paragraphs 83 and 85 of the EVJD read with what we say in paragraphs 112-117 on pages 279-280 of our second reserved judgment, are incorporated here. Moving shelves and displays 39 Paragraphs 86-90 of the EVJD, read with what we say in paragraphs 118-122 on pages 281-282 of our second reserved judgment, are incorporated here. Trade spaces 40 Although we doubted that they added anything material, for the avoidance of doubt about whether or not they can be taken into account, paragraphs 91 and 92 of the EVJD are incorporated here. Dealing with customers while replenishing 41 Paragraphs 93 and 94 of the EVJD were agreed. In fact, they were in one sense unnecessary given

(1) what we said in paragraph 51 on page 263 of our second reserved judgment,

(2) our incorporation via paragraph 2 above of pages 2-17 of C7/145, and

(3) that paragraphs 329-338 of the EVJD dealt with the same thing. However, we decided that paragraphs 93-94 of the EVJD should be incorporated here as a statement of the frequency with which the work of this particular customer assistant replenishing hardlines tended to be interrupted by a need to respond to a customer. Products not on file 42 The manner in which any customer assistant had to deal with products which were “not on file” was the same, whoever they were and whatever the job they did. Accordingly, what we say in paragraph 81 on page 104 of our second reserved judgment applied here. Paragraph 95 of the EVJD is incorporated here in the light of the training materials to which we refer in paragraph 81 on page 104 of our second reserved judgment, and therefore on the basis that paragraph 95 of the EVJD is a description of what happened in the course of the work of Ms Thompson in regard to items that were “not on file”. Electrical and entertainment products 43 Paragraphs 96-98 of the EVJD are incorporated here. Case Numbers: 3304495/2018 & others 161 Reductions and clearance 44 Paragraph 99-105 (read as far as paragraph 104 is concerned with what we say in paragraph 123 on page 282 of our second reserved judgment) of the EVJD are incorporated here. 45 Paragraphs 106-108 of the EVJD, read with paragraphs 124-126 on pages 282-283 of our second reserved judgment (including, therefore, C7/381), are incorporated here. 46 Paragraphs 109-114 of the EVJD are, in their entirety, incorporated here. In relation to paragraph 109, that was because of what we say in paragraph 127 on page 283 of our second reserved judgment (so that in our judgment the word “occasionally” was an apt way of recording the demands of that aspect of Ms Thompson’s work). In relation to paragraph 114 of the EVJD we say it is incorporated (i.e. in the claimants’ proposed words) because of what we say in paragraphs 128 and 129 on page 283 of our second reserved judgment. As for paragraph 113 of the EVJD, on reconsideration, we concluded that what was said in it was an apt statement of what was required of Ms Thompson, which, as a matter of fact we concluded, she did do. Rumble 47 Paragraph 115 of the EVJD is incorporated here. Emergency product recalls 48 The words in the final sentence of paragraph 131 on pages 283-284 of our second reserved judgment that Ms Thompson “was involved in emergency product withdrawals as described at C7/385/3, but only rarely”, are incorporated here. Requirement to be aware of range changes 49 Paragraph 118 of the EVJD is (given what we say in paragraph 132 on page 284 of our second reserved judgment) incorporated here. Assisting in replenishment of the health and beauty department 50 Paragraph 122 of the EVJD, read with the final sentence of paragraph 135 on page 285 of our second reserved judgment, is incorporated here (but not paragraph 124 of the EVJD, which had to be read with paragraph 122 and which is superseded by what we say here). Paragraph 123 of the EVJD (“JH needed to learn quickly and be adaptable in the way that she worked. JH had to retain the knowledge of the rules and products in other departments.”), on which we expressed no conclusion in our second reserved judgment, was a statement of the obvious which was too general to be of material assistance in the circumstance that the training materials relating to other departments spoke for themselves. In so far as the department was the health and beauty department, we have incorporated those training materials in paragraphs Case Numbers: 3304495/2018 & others 162 35-39 on pages 259-260 of our second reserved judgment, which we have incorporated in this appendix via paragraph 7 above. 51 As a summary of the products which Ms Thompson replenished, paragraph 125 of the EVJD is incorporated here. 52 On reconsideration, we concluded that the following paragraphs of the EVJD should be incorporated here (with, where necessary, our reasons for the conclusion):

52.1 126,

52.2 127 with the respondent’s proposed words (in regard to which we accepted the respondent’s closing submissions),

52.3 128,

52.4 129 with the respondent’s proposed words (on the basis that they were consistent with what we say in paragraph 108 on pages 278-279 of our second reserved judgment),

52.5 130 without the first sentence but otherwise because it was consistent with what was said in the part of C7/386/8 which we set out in paragraph 18 on pages 253-254 of our second reserved judgment, and

52.6 131-135 (since those were all in terms which were consistent with what was said in C7/382, which we have incorporated via paragraph 7 above, and the respondent’s “would I buy it” policy, to which we refer in paragraph 104 on page 277 of our second reserved judgment as being applicable to the work of Ms Thompson). Working in other departments 53 Paragraphs 137-139 on pages 286-287 of our second reserved judgment are incorporated here. As matters of fact, we concluded on reconsideration, there was no cogent evidence in support of what was said in paragraphs 136-140 of the EVJD, and Ms Thompson’s own initial statement was to a contrary effect: that was to be seen in the passage from line 22 on internal page 96 at C3/4/24 to line 4 at the top of the next page. Having said that, it was plainly possible that Ms Thompson, like any other customer assistant, might have been asked from time to time to help out in another department, and that was a fact which in our judgment should be taken into account by us and the IEs. Working on checkouts and the “Combined Desk” 54 Paragraphs 140-153 on pages 287-291 of our second reserved judgment are incorporated here. We add that what we said in our second reserved judgment and in this judgment on reconsideration can be searched for references to, for example, Case Numbers: 3304495/2018 & others 163 age-restricted sales, lottery sales, or bulk purchases, and our conclusions on the facts relating to them can be found accordingly without difficulty. 55 For the avoidance of doubt, we accepted

55.1 what the claimants proposed for paragraph 142 of the EVJD, since the things said by the respondent in opposition to the words of that paragraph were irrelevant to the substance of the factual assertions in it, which substance the respondent accepted;

55.2 what the respondent proposed for paragraph 143 of the EVJD, as it appeared to be agreed and in any event made sense to us;

55.3 what the respondent proposed for paragraph 146 of the EVJD; that was on the assumption (which was drawn from the absence of any submission about the source of the figures) that the numbers proposed by the claimants had come from the respondent and therefore that the respondent’s proposed correction was probably correct;

55.4 what the claimants proposed for paragraph 150 of the EVJD because what the respondent proposed was in our view unnecessary and did not reflect the factual situation;

55.5 what the claimants proposed for paragraph 152 of the EVJD because it was consistent with the bullet point “promotions and special offers can also be pointed out to customers” set out in the passage at the top of page 253 of our second reserved judgment;

55.6 what the claimants proposed for paragraph 155 of the EVJD because it was in substance agreed by the respondent and in any event as amended by the claimants by the time of closing submissions it was in our view accurate;

55.7 what the claimants proposed for paragraph 162 of the EVJD because it was opposed only on the basis that it did not happen very often, if at all, and in our judgment it plainly might happen, and (see for example paragraph 81 on page 104 of our second reserved judgment) had to be dealt with by Ms Thompson in the manner stated in the paragraph;

55.8 what the claimants proposed for paragraph 165 of the EVJD because it was consistent with what we say in paragraph 129 on page 115 of our second reserved judgment;

55.9 what the claimants proposed for paragraph 175 of the EVJD because the dispute was only about frequency and the most important thing as far as we were concerned was that a customer assistant in the position of Ms Thompson would need to know what to do when a customer had forgotten his or her wallet; and Case Numbers: 3304495/2018 & others 164

55.10 what the claimants proposed for paragraph 176 of the EVJD because the dispute was only about frequency and the most important thing as far as we were concerned was that a customer assistant in the position of Ms Thompson would need to know what to do when a customer had forgotten his or her PIN. 56 So, bearing in mind what we say in the preceding two paragraphs above, and on the understanding that it was agreed that Ms Thompson spent only approximately 6% of her time on “Combined Desk, Mainbank Checkouts, Petrol Station”, paragraphs 142- 263 of the EVJD are incorporated here, with any doubt about any aspect of them being capable of being resolved by us on request by the IEs, as we say in paragraph 141 on page 287 of our second reserved judgment. Paragraphs 264 onwards 57 Paragraphs 154-161 on pages 291-292 of our second reserved judgment are incorporated here. For the avoidance of doubt, we concluded that while the content of paragraphs 264-375 of the EVJD covered aspects of the work of Ms Thompson, they were written in a way which was plainly aimed at maximising the number of points which, we could see on reconsideration, the claimants expected the IEs to award, when in our view that was capable of resulting in an unrealistic approach. For example, paragraph 324 of the EVJD was in these terms. “JH knew that if a chilled product was kept out of a chiller for a sufficiently long period of time, the product may go off or become unsafe before the stated ‘use-by’ date.” 58 Not only was that obvious, but if it were counted as a separate aspect of the work of a customer assistant then it would involve counting twice the requirement to apply the training in C7/232, entitled “Know Your Stuff For Fresh Food Replenishment: Working in the Cold Chain – Chilled” (and we have incorporated C7/232 via paragraph 7 of appendix 2 on page 102 above, read with paragraph 25 of appendix 1 on page 91 above, and paragraph 83.6 on page 53 of our second reserved judgment). Some (non-exhaustive, i.e. some selective) statements of what we did not include, and why we did not include it (where it might not otherwise have been clear) 59 Paragraph 41 of the EVJD was a duplication of paragraph 97 of the EVJD, which is incorporated by paragraph 43 above (which incorporates paragraphs 96-98 of the EVJD). 60 Paragraph 42 of the EVJD was in effect a duplicate of paragraph 98 of the EVJD. In fact, paragraph 98 showed that paragraph 42 of the EVJD was misleading if and in so far as it suggested that a customer assistant in the position of Ms Thompson needed to know where to put items in the secure lock-up part of the warehouse. That was because such items would have “their respective chart position, as set out by Oakwood” in that lock-up, as stated in paragraph 98. Case Numbers: 3304495/2018 & others 165 61 Paragraph 58 of the EVJD asserted (only) that “JH loaded and moved items safely (see paragraphs [268]-[276].)” Obviously, that was repetitious and therefore unnecessary, but in any event it meant nothing here to say that. A hardlines replenisher, as with any other replenisher, was required to work in accordance with the training stated in C7/142, which was all that we or the IEs needed to know about the movement of (1) stock and (2) vehicles for the movement of that stock in a store. 62 Paragraph 84 of the EVJD was, we agreed with the respondent, a simple and unnecessary repetition of what was said elsewhere in the EVJD. 63 Paragraph 116 of the EVJD added nothing material, as it was too general to do so. What it related to was dealt with sufficiently in the paragraphs below paragraph 116. Case Numbers: 3304495/2018 & others 166 Appendix 5 The work of Ms Oz and the conditions in which she did it The places where Ms Oz worked, her job title, her working hours and the times when customers were present during those hours and an overview of the work which she did 1 Ms Oz worked for the respondent as a “customer assistant on the night shift” in the places described in paragraph 2 on page 293 of our second reserved judgment. That paragraph, and paragraphs 3-15, 18 and 23 on pages 293-299 of that judgment, are incorporated here. The main training materials showing the work of Ms Oz as a replenisher of health and beauty products 2 The training materials to which we refer in paragraph 34 on pages 302-304 of our second reserved judgment, together with C7/400, C7/401, C7/402, C7/403 and C7/404, are incorporated here. Ms Oz’s work in so far as it is not already stated via the documents incorporated by what we say above in this appendix The main aspects of the work Main purpose of Ms Oz’s role 3 Paragraph 6 of the EVJD (i.e. in this appendix the EVJD for Ms Oz in the form which it took by the time of closing submissions), is incorporated here in the claimants’ proposed words. We came to that conclusion on reconsideration because we concluded on the balance of probabilities that the respondent would not have expected a manager always to be (as claimed by the respondent in its response to paragraph 6 of the EVJD) “always ... walking the floor”. Ms Oz’s working time was spent on her feet 4 Paragraph 194 of the EVJD (“JH spent the entirety of her shift on her feet, only having the opportunity to sit down during her half-hour break.”) is incorporated here. Discrete tasks Pulling delivered stock onto the shop floor 5 Paragraph 10 of the EVJD is incorporated here. So is paragraph 11 of the EVJD with the respondent’s proposed words, since they were in our view more accurate than those proposed by the claimants. Case Numbers: 3304495/2018 & others 167 6 For the reasons stated in paragraphs 35-42 on pages 304-306 of our second reserved judgment, paragraph 12 of the EVJD is incorporated here. 7 Paragraphs 13-15 of the EVJD, read with what we say in paragraphs 44 and 45 on pages 306-307 of our second reserved judgment, are incorporated here. 8 Paragraphs 16 and 17 of the EVJD (the respondent’s opposition to the word “discussed” in the latter being in our view misplaced, since the thing described was, we concluded on the balance of probabilities, a two-way conversation rather than Ms Oz merely informing her colleague about what she had done) are incorporated here. 9 Paragraph 18 of the EVJD, read with what we say in paragraph 46 on page 307 of our second reserved judgment, is incorporated here. 10 Paragraphs 19-21 of the EVJD are incorporated here despite the doubts that we expressed in paragraph 47 on page 307 of our second reserved judgment. The words of paragraph 19 of the EVJD by the time of closing submissions seemed to us on reconsideration to be an accurate description of what Ms Oz did by way of moving cages, and we could see that it was a helpful illustration of that work. Paragraphs 20 and 21 were in substance agreed and were also to an extent helpful. Whether the aspects of the work which were particular to the stores at which Ms Oz worked are relevant to the determination of the demands of that work for the purposes of section 65(6) of the EqA 2010, is something on which we will be expecting submissions at the final hearing. 11 Paragraph 23 of the EVJD is incorporated here. 12 Paragraph 22 of the EVJD, read with what we say in paragraph 48 on pages 307-308 of our second reserved judgment, is incorporated here. Replenishment Pre-sorting cages 13 Paragraph 24 of the EVJD is incorporated here. We saw no good reason to accept the respondent’s opposition to the penultimate sentence of the paragraph. That was because it was in our view an accurate factual description and it was as relevant as was the fact that the comparators were also under pressure to do their work as quickly as possible. The impact of the disputed sentence for the purpose of determining the value of Ms Oz’s work can be the subject of submissions at the final hearing (and at the material factor defence hearing). 14 With the words “As necessary” inserted at the start of paragraph 25 of the EVJD, that paragraph is incorporated here. That addition best encapsulated what we saw as the reality. Moving UoDs to the shop floor Case Numbers: 3304495/2018 & others 168 15 Paragraphs 26 and 27 of the EVJD are incorporated here. With the reservation that we ourselves could not see the precise physical layout of a store as being relevant to the determination of the demands of the work of for example a health and beauty replenisher, paragraph 65 of the EVJD is incorporated here. 16 Paragraph 28 of the EVJD is incorporated as proposed by the claimants but with a recognition that there was some over-egging of the pudding there but a recognition also that the trays had to be moved somehow (and so they had to be put on a dolly) so that the respondent’s proposed deletion made no sense. Tagging and directly related work 17 The attaching of security tags was part of the work of a replenisher where that was required of the goods and the respondent’s policy about such tags. Whether it took between 15 and 30 or between 15 and 45 minutes was in our view unlikely to affect the demands of the work of the replenisher. Read literally, the claimants’ proposed words for paragraph 29 of the EVJD were in our judgment accurate given the evidence of Ms Oz and given that Mr Priest was not looking over her shoulder every day, so that paragraph is incorporated here. Paragraph 31 of the EVJD was in our view mistaken in some respects, if only because it was inconsistent in some respects with the policy of the respondent in C7/415, which we now incorporate. That policy document showed that there was an element of local discretion, as indicated in what the respondent proposed for the words of paragraph 31 of the EVJD. A replenisher such as Ms Oz would, however, be expected by the respondent to know what was the local policy, and to apply it. With those caveats, paragraph 31 of the EVJD (i.e. for the avoidance of doubt, as proposed by the claimants) is incorporated here. Paragraph 30 of the EVJD was somewhat obvious but it is nevertheless incorporated here too, as is paragraph 32 of the EVJD read with what we say in paragraph 49 of our second reserved judgment. Overview of replenishment as done by Ms Oz 18 Paragraphs 33-36 of the EVJD are incorporated here (the respondent’s objection to the description of the department being about something which had no effect on the demands of the work and which we therefore ignore here and below), but with the caveat that those paragraphs were not directly about the demands of the work. They were about the merchandise which Ms Oz replenished. Equipment used 19 The equipment used by Ms Oz to replenish was, as the respondent said in relation to the opening words of paragraph 37 of the EVJD, not likely to be very different from that of other replenishers. What was the norm appeared to us to be shown by what was said at C7/353/2 and C7/401/1 but we saw that the particular things that were referred to in paragraph 37 of the EVJD were agreed by the respondent and they were slightly different. We were therefore bemused by the respondent’s opposition to the words of paragraph 37 of the EVJD, which we accordingly incorporate here but with the word “chose” replaced by “selected” for the sake of accuracy. We also Case Numbers: 3304495/2018 & others 169 incorporate here paragraphs 38 and 39 of the EVJD. Paragraph 40 was rather general and in our view of little assistance to us and the IEs, but because it was agreed and was not obviously of no potential value, we incorporate it here. Some further aspects of replenishing 20 Paragraph 41 of the EVJD (giving an overview of the products replenished by Ms Oz) was also rather general, but it was rather more informative. Overall, we agreed with what the respondent proposed for the words of paragraph 41 of the EVJD, as we agreed that they added necessary context. Paragraph 41 of the EVJD with the respondent’s proposed words is accordingly incorporated here. 21 Paragraphs 42-44 of the EVJD (about handling items when replenishing and for example over-filled displays) were in substance agreed and in some respects were obvious, such as the need to take care when moving fragile items such as plates. The respondent’s objections were to no material effect if it is borne in mind that the need to take care with handling depended on (or alternatively varied with) what was handled. Paragraphs 42-44 of the EVJD are incorporated here with that obvious caveat. 22 Paragraph 45 of the EVJD (also about over-filled displays) read with what we say in paragraph 50 on page 308 of our second reserved judgment is incorporated here. 23 Paragraph 46 of the EVJD (about replenishing with pride) read with what we say in paragraphs 51 and 52 on pages 308-309 of our second reserved judgment, is incorporated here. 24 As a statement of what was required of Ms Oz in regard to shelf-edge labels, paragraph 47 of the EVJD was correct and is incorporated here accordingly. For the avoidance of doubt, we could not see in that paragraph any duplication of the sort asserted by the respondent. 25 Emergency product withdrawals were dealt with in C7/385 for hardlines replenishment and C7/850 generally. The latter was entitled “Being Responsible in Retail 2018” and was plainly aimed at all of the respondent’s stores staff. It was clear that, as the respondent said in response to paragraph 48 of the EVJD (relating to blue shelf-edge labels, which were used for products withdrawn in an emergency), a customer assistant would not be responsible for identifying products to be withdrawn. That was clear from what was said at C7/385/1, which was this: “The Duty Manager will check the Workplan at least every two hours to check for Emergency Product Withdrawals that have been sent by Head Office.” 26 Paragraphs 49-51 of the EVJD (also relating to shelf edge labels) were consistent with for example C7/425/1-3, and the respondent’s objection to paragraph 51 was simply wrong given what was said at C7/425/1 and in many other places. Paragraphs 49-51 of the EVJD are accordingly incorporated here, but that is purely as an aide memoire because they add nothing material to (1) the training materials which we Case Numbers: 3304495/2018 & others 170 have incorporated via paragraph 2 above and (2) C7/850 (“Being Responsible in Retail 2018”), which we now incorporate also. 27 Paragraph 52 of the EVJD (relating to new stock for places where there had previously been none with a resulting gap on a shelf) made more sense with the first sentence. Accordingly we disagreed with the respondent’s reasons for objecting to the sentence, and the whole of that paragraph is incorporated here. 28 The agreed paragraphs of the EVJD numbered 53 (concerning “product variants”) and 54-57 (concerning the use of a “Capping Shelf”) are incorporated here. 29 Paragraph 58 of the EVJD (concerning “hot spots”), read with what we say in paragraphs 53 and 54 on page 309 of our second reserved judgment (making it clear why we do not incorporate paragraph 64 of the EVJD here, and that we regard the substance of paragraph 58 as applying to promotional displays generally), is incorporated here. 30 We failed to see how paragraph 59 of the EVJD, concerning products arriving on an off-fixture display (“OFD”) and then needing to be tagged, added anything material to a description of the work of a hardlines replenisher. As far as tagging was concerned, it was already the subject of paragraph 29 of the EVJD. As far as off-fixture displays were concerned, their replenishment was the same as the replenishment of something in retail-ready packaging on a shelf, or even something which was simply on a display shelf. However, paragraph 59 had to be read with paragraphs 60-61, which were marginally informative about the replenishment of off-fixture displays. For the avoidance of doubt, we agreed with what the respondent said about the text of all of those paragraphs and they are incorporated (in case they added something material, which we will review at the final hearing) here in the respondent’s proposed words. 31 In contrast, we thought that what the claimants proposed for paragraph 62 of the EVJD, which concerned retail (or shelf)-ready packaging, was all sufficiently material to be incorporated here, which it accordingly is. 32 Paragraph 66 of the EVJD, concerning OFDs, read with what we say in paragraph 55 on pages 309-310 of our second reserved judgment, is incorporated here. 33 With the caveat that we found it hard to see what, if anything, extra was being said in paragraphs 67, 68 and 70 of the EVJD, given what was in the apparently comprehensive information at C7/393. We incorporate that document here, along with all of the other training materials referred to in paragraphs 14-39 on pages 252- 260 of our second reserved judgment. However, as an aide-memoire, paragraphs 67, 68 and 70 of the EVJD are incorporated here. 34 Paragraph 69 of the EVJD, read with what we say in paragraph 56 on page 310 of our second reserved judgment, is incorporated here. “Working the backstock” Case Numbers: 3304495/2018 & others 171 35 Paragraphs 71-75 (with the words proposed by the respondent for paragraphs 74 and 75 because, we concluded, they were more accurate than those proposed by the claimants) of the EVJD are incorporated here. Stock counting 36 Paragraphs 76-78 of the EVJD, read with what we say in paragraphs 57-61 on pages 310-311 of our second reserved judgment, are incorporated here. Facing up and stock rotation 37 We did not in our second reserved judgment determine the parties’ disputes in relation to paragraphs 79 and 80 of the EVJD. At that time, we concluded that what was agreed by the respondent in paragraphs 79-80 of the EVJD related to (or stated) demands which were no less for the purposes of section 65(6) of the EqA 2010 than those which were described in the text originally proposed by the claimants, but subject to the qualification that rotation was (as made clear in for example paragraph 83.1 on page 52 of our second reserved judgment) plainly a necessary part of the work of a replenisher wherever stock had a limited shelf life. Thus, we concluded, (1) the respondent’s opposition to paragraph 80 as proposed by the claimants was wrong, and (2) that conclusion could be seen from what we had already said in our second reserved judgment. As for paragraph 79, the only material difference was that the respondent proposed words showing that Ms Oz might have needed to make only one trip to and from the warehouse per shift when “Facing Up” rather than that she would make such a trip only when “needed”. We could not see that the number of trips required to be undertaken to and from the warehouse when (1) the time required for “Facing Up” was stated to be typically an hour and (2) getting backstock from the warehouse was done “If ... needed”, could conceivably make a difference to the demands of the work for the purposes of section 65(6) of the EqA 2010. We still could not do so on reconsideration. But nevertheless we now state, for the avoidance of doubt and in case it is seen a relevant by the IEs, that paragraphs 79 and 80 of the EVJD as proposed by the claimants are incorporated here. 38 Paragraph 81 of the EVJD, read with what we say in paragraph 62 on page 311 of our second reserved judgment, is incorporated here. Range and promotional changes 39 Similarly, we concluded when writing our second reserved judgment that the differences between the parties in relation to paragraphs 83-89 of the EVJD were of no practical importance in the application of section 65(6) of the EqA 2010. The respondent’s proposal in regard to paragraph 89 was in fact almost all accepted by the claimants and the additional dispute was about nothing material. Subject to that qualification, we concluded on reconsideration as a matter of fact and for the avoidance of doubt that the claimants’ factual assertions in paragraphs 83-89 of the EVJD were correct, and that the words proposed by the respondent were, except in regard to paragraph 84, not to be incorporated. Those in paragraph 84 were, Case Numbers: 3304495/2018 & others 172 however, apt. Paragraphs 83-89 of the EVJD are incorporated here read in the light of the preceding sentences of this paragraph. Clearance 40 What the claimants proposed for paragraph 90 of the EVJD was consistent with common sense and the respondent’s opposition was not. (The possibility that a clearance item might subsequently be moved by a merchandising colleague did not detract from the proposition that it was plainly part of the work of a replenisher to put clearance stock out in as attractive a manner as possible.) Similarly, the respondent’s opposition to paragraph 91 of the EVJD was unrealistic, given that the respondent would in our judgment have wanted its customer assistants to use their own judgment and contribute to the profits of the business by seeking to place clearance items in a place where they could be seen by customers and in an attractive display. Thus, both paragraphs (90 and 91) of the EVJD are incorporated here. Checking the merchandising plan 41 What the respondent said in opposition to paragraph 92 of the EVJD was about things which were of no practical importance as far as the need to check the merchandising plan was concerned. We therefore incorporate paragraph 92 of the EVJD here. It was implicit in that paragraph that a shelf-edge label would in the circumstances described there need to be printed, and Mr Priest did not suggest otherwise. That fact is therefore a relevant one here. Items not on file 42 If something was “not on file”, then it would, as we understood it, not have shelf-edge label. If it had been put on display without a shelf-edge label then that would require remedial action, and if Ms Oz took that action then that was part of her work. What Ms Oz said in cross-examination as recorded on page 144 of the transcript of day 14 showed that such action was required only once as far as she recalled during the relevant period for her work. With that caveat, we found paragraphs 93 and 94 of the EVJD to be accurate, and they are accordingly incorporated here. New game releases 43 Paragraph 95 of the EVJD is incorporated here. Leaking roof 44 If Ms Oz did indeed check for water ingress when there was heavy rain (i.e. without any particular focus), then it could be said that she was wasting her employer’s time. If, however, she knew where the leaks tended to be, then that would make it easier to accept that it was part of her work for the purposes of section 65(6) of the EqA 2010 to do that. But it would have been surprising if leaks of which the respondent was aware had not been mended, and if there had been a leak then one would expect the respondent to have had it mended. Case Numbers: 3304495/2018 & others 173 45 In those circumstances, we incorporated paragraph 96 of the EVJD here without its second sentence, in relation to which we accepted the respondent’s submissions. Clubcard 46 Given what we say in paragraphs 63 and 64 on pages 311-312 of our second reserved judgment, paragraphs 97 and 98 of the EVJD are incorporated here. General aspects of Ms Oz’s work as a customer assistant 47 Paragraphs 99-121, 134-135, 193 and 195 of the EVJD added very little that was material to a description of the work of a customer assistant in the position of Ms Oz, given

47.1 paragraphs 3-7 on pages 293-294 of our second reserved judgment, which we have incorporated here via paragraph 1 above;

47.2 paragraphs 3-6 of appendix 1 on page 89 above, which apply here via the heading to those paragraphs;

47.3 paragraphs 10-12 of appendix 1 on page 90 above, which apply here via the heading to those paragraphs; and

47.4 the training materials which we have incorporated via paragraph 2 above; and

47.5 the training materials to which we refer in paragraphs 14-39 on pages 252-260 of our second reserved judgment in relation to the replenishment work of Ms Thompson, which are incorporated here via paragraph 33 above. 48 The following aspects of those parts of the EVJD (paragraphs 99-121, 134-135, 193 and 195) are either not covered by what we say in the preceding paragraph above or in our view merit a specific mention below. 49 Paragraph 99 of the EVJD added nothing material, but we incorporate it here as an aide-memoire. 50 Paragraphs 100-104 of the EVJD, read with what we say in paragraphs 65-79 on pages 312-316 of our second reserved judgment, are incorporated here. 51 Paragraphs 105-107 of the EVJD were unnecessary given the relevant parts of C7/145, and as far as someone looking as if they might want to steal is concerned, C7/135 and the videos at C7/707 and C7/711, all of which are incorporated via paragraphs 47.2 and 47.3 above. 52 Paragraph 108 of the EVJD was agreed and was relevant; it is therefore incorporated here. Case Numbers: 3304495/2018 & others 174 53 Paragraphs 109-121, 134-135, 193 and 195 of the EVJD were strictly speaking unnecessary given our incorporation via paragraph 47 above of the various training materials and conclusions to which we refer there. However, we concluded that we should incorporate paragraphs 109-121, 134-135, 193 and 195 of the EVJD here as an informative narrative illustrating how in the case of this particular customer assistant the principles and guidance in the training materials referred to via paragraph 47 above had to be applied in practice. One thing was arguably new in paragraphs 109-121: the reference to the use of “freezer bags lined with tin foil” described in paragraph 116 of the EVJD. What was said in paragraph 117 of the EVJD was also arguably new. Those things were only arguably new because the content of the videos at C7/707 and C7/711 might be thought to have covered the same ground. In any event, while what was said in those paragraphs might be said to be a simple description of two particular ways in which some shoplifters worked, and therefore as such irrelevant, what was said in those paragraphs in our judgment constituted statements of things for which a customer assistant could look out and therefore were statements of aspects of the work of Ms Oz (and any other customer assistant employed by the respondent). Missing products 54 Paragraph 122 of the EVJD is incorporated here. Misplaced items 55 Paragraph 123 of the EVJD, read with paragraphs 80-82 on pages 316-317 of our second reserved judgment, is incorporated here. Gaps and anomalies 56 Paragraphs 124-125 of the EVJD (despite the slight overlap of the latter with the content of paragraph 126 of the EVJD, but bearing in mind that overlap) are incorporated here. Checking for out of code products 57 Paragraphs 126-129 of the EVJD, read with the significant caveats that we state in paragraphs 83-89 on pages 317-318 of our second reserved judgment, are incorporated here. Damaged products 58 The manner in which a customer assistant in the hardlines or general merchandise or health and beauty departments had to deal with damaged products did not differ materially from the manner in which a customer assistant in any other department had to deal with damaged products. Paragraphs 130-133 and 136-139 of the EVJD had to be read accordingly. What we say in paragraph 90 on page 318 of our second reserved judgment is incorporated here. We make the following additional findings about those paragraphs of the EVJD. Case Numbers: 3304495/2018 & others 175 59 Paragraph 133 of the EVJD was, we agreed with the respondent, inaccurate in so far as it suggested that particular items in the health and beauty department reacted to moisture. The packaging might react to moisture, but that was a different matter. The packaging was in fact the only thing to which Ms Oz referred in paragraph 48 of her witness statement as being capable of being damaged. Thus, paragraph 133 is incorporated here in the words proposed by the respondent. 60 Paragraphs 136-137 and 139 of the EVJD added nothing to what was in C7/188, the principles in which we have incorporated here via our incorporation via paragraph 58 above of paragraph 90 on page 318 of our second reserved judgment. For the avoidance of doubt, C7/188 applied to the work of all of the claimants. Paragraph 138 of the EVJD was illustrative of how the principles in C7/188 might be applicable in the work of Ms Oz, and for the sake of completeness we incorporate that paragraph here with the following caveat. 61 While we did not see any material duplication in the sub-paragraphs of paragraph 138 of the EVJD, we agreed with the respondent that referring in the opening words of that paragraph to what Ms Oz knew about “the quality issues that could occur with products” might give rise to double-counting. That possibility in relation to paragraph 138 of the EVJD will therefore have to be borne in mind by the IEs and us. Helping temporary staff 62 Paragraph 141 of the EVJD was a helpful illustration of the principle which we state in paragraph 48 on page 262 of our second reserved judgment, namely that it was plainly part of the work of a customer assistant to help any colleague including a temporary member of the replenishment team, whenever it was reasonably necessary to do so. We saw no good reason to reject what the claimants said in paragraph 141 of the EVJD and we therefore incorporate it here on the basis stated in the preceding sentence above. “Safety”; “Cleaning and tidying (CAYG)”; “Pest control”; “Putting out Cages for rubbish and recycling”; “Clearing empty cages” 63 Paragraphs 142-150 of the EVJD were under the heading “Safety”. Paragraphs 151- 164 of the EVJD were under the heading “Cleaning and tidying (CAYG)”. Paragraphs 165-166 of the EVJD were under the heading “Pest control”. Paragraphs 167-169 of the EVJD were under the heading “Putting out Cages for rubbish and recycling”. Paragraph 170 of the EVJD was under the heading “Clearing empty cages”. In some respects those paragraphs were illustrations of the principles in the relevant training materials, but in other respects the contents of paragraphs 142-170 of the EVJD were not as accurate about the work of Ms Oz as those training materials. 64 Paragraphs 142-146 of the EVJD were covered amply by C7/142, which, as a result of what we say in paragraph 26 of appendix 1 on pages 91-92 above, is plainly applicable here. Case Numbers: 3304495/2018 & others 176 65 Paragraph 147 of the EVJD was not disputed, and it is incorporated here. 66 Paragraph 148 of the EVJD, read with (1) paragraph 80 of the witness statement of Ms Oz (at E1/2/16) (showing that there was in practice good reason for Ms Oz not to wear gloves when replenishing fiddly items) and (2) C7/142/25, is incorporated here. With no evidential basis, the respondent opposed the word “often” in relation to the sustaining of cardboard cuts and blisters by Ms Oz, and proposed instead “occasionally”. Both were imprecise descriptions of frequency, but necessarily so. We concluded on reconsideration that there was plainly a real risk of cutting oneself when opening cardboard boxes, and that the frequency with which it occurred could not be stated reliably. 67 Paragraph 149 of the EVJD, which was agreed, is incorporated here. However, we thought that that paragraph over-egged the pudding slightly, as did the next one, which was not agreed (but the disagreement was not for what in our judgment was a good reason). We concluded in regard to paragraphs 149 and 150 of the EVJD that the guidance at C7/179/51-52 (the document was entitled “Know Your Stuff for Express – Silver Food Safety And Hygiene”) was a rather better statement of the applicable principles. Accordingly, C7/179/51-52 are incorporated here, but paragraph 150 of the EVJD is not. 68 The contents of paragraphs 151-166 and 170 of the EVJD were individualised statements of the work of a customer assistant which were better stated at

68.1 C7/214,

68.2 C7/142/13-15 and 27-28,

68.3 C7/234/3-4, despite the latter being written in relation to fresh food replenishment, and

68.4 C7/179/61, 63, and 65-70. 69 Therefore, we incorporate here paragraphs 151-166 and 170 of the EVJD as illustrations as far as the work of Ms Oz was concerned of the application of the principles in those training materials. 70 The agreed paragraphs 167-169 of the EVJD, which were consistent with the training materials before us, are incorporated here. Supervision 71 The level of the responsibility and resulting degree of supervision of Ms Oz was the same as we state in paragraphs 18 and 71 on pages 37 and 50 respectively of our second reserved judgment in relation to Mrs Worthington. In our judgment, while the factors stated in paragraph 191 of the EVJD were relevant, they were of peripheral relevance only. With those caveats, paragraph 191 of the EVJD is incorporated here. Case Numbers: 3304495/2018 & others 177 Parts of the EVJD which we omitted, and why 72 We omitted paragraph 140 of the EVJD, which was a partial repetition of the content of paragraphs 76-78 of the EVJD. 73 Paragraphs 171-187 of the EVJD concerned the work of Ms Oz done in overtime, and that was work done in the F&F (or clothing) department. For the following reasons, we concluded that those paragraphs should not be incorporated here.

73.1 That work was done as overtime, which we concluded was irrelevant here for the reasons stated in paragraphs 79-81 on pages 28-29 of our second reserved judgment.

73.2 The work of F&F replenishment is comprehensively analysed by us in appendix 3 above (concerning the work of Ms Cannon), so the demands of that work have already been stated very extensively by us.

73.3 In paragraph 171 of the EVJD, the extent of the overtime done by Ms Oz was stated as follows. “JH worked one overtime shift every three months between 2012 and November 2015, in any department. From January 2016 JH undertook one overtime shift a month in the Grocery Department. “

73.4 That was a minimal amount of overtime, so that even if overtime work had been appropriately a subject of the EVJD, it would have been disproportionate to deal with it here as it was such a small proportion of the work done by Ms Oz.

73.5 In fact, even paragraph 171 was inapt, if read against the fact (as pointed out by the respondent in its closing submissions) that paragraphs 172-187 were all about working (only) in the F&F department. 74 Paragraphs 188 and 189 of the EVJD related to time pressures. When reconsidering our conclusions generally, we re-read paragraphs 50-55 of our first reserved judgment in this case, issued on 12 July 2023. We found what we said in those paragraphs to be inescapable, i.e. we came to the same view and could see no credible alternative. That did not mean that the factors to which we referred in the paragraphs were of no importance. Rather, we concluded, the fact that the respondent was able to monitor the performance of the comparators will be of considerable importance when applying section 69 of the EqA 2010, in the hearing which is listed to take place in September and October of this year (2025). 75 Paragraph 190 of the EVJD related to the fact that Ms Oz worked night shifts. That did not affect the work which she did. It was not in our view a condition which was relevant for the purposes of section 65(6) of the EqA 2010, and in fact when we returned to those words when reconsidering paragraph 190 of the EVJD, we saw no reference whatsoever in section 65(6) to conditions. The fact that work was done at night would, however, be relevant if it were paid more highly via a night-shift or Case Numbers: 3304495/2018 & others 178 unsociable hours supplement (or premium), for example. But that would be a factor which was applicable to the application of section 69 and not section 65(6) of the EqA 2010. In any event, the facts of the working hours of Ms Oz are stated via paragraph 1 above, and at this stage that is all that we can see to be relevant. 76 Paragraph 192 of the EVJD (“Staff as well as customers were at constant risk of being suspected of theft. JH herself was (after the EP) dismissed for the suspected theft of some razors before being reinstated when an appeal established her innocence.”) was no more than a (in the circumstances, vivid) statement of the effect of what was said at C7/147/3 and C7/147/10-11, which are incorporated here via paragraph 47.3 above. Case Numbers: 3304495/2018 & others 179 Appendix 6 The work of Ms Garrod and the conditions in which she did it The places where Ms Garrod worked, her job title, her working hours and the times when customers were present during those hours and an overview of the work which she did

[1]Ms Garrod worked for the respondent as a “Customer Assistant Express”. Paragraphs 2-5 and 24 of the EVJD (describing the places where Ms Garrod worked for the respondent during the relevant period) are incorporated here.

[2]On the basis that it would be inconsistent with Parliament’s intention evidenced by section 65(2) of the EqA 2010 to focus on the minutiae of the workplace, we could not see how the precise distances that an employee had to travel within the workplace could affect the value of his or her work for the purposes of section 65(6) of that Act. By way of background, however, and in case the IEs regard it as being helpful to do so, we incorporate here the claimants’ proposed words for paragraph 6 of the EVJD for Ms Garrod at the time of closing submissions (which of course includes the photographs to which that paragraph referred). (Unless otherwise stated, a reference to a part of the EVJD below is a reference to it as it so stood.)

[3]The parties disagreed about what was said in paragraph 8 of the EVJD, which was about the “roles within [Danbury]” while Ms Garrod worked there. The respondent’s assertion that the employees who had the job title of “Customer Assistant – Stock Controller” and “Customer Assistant – Cash Admin ... undertook the majority of routine tasks undertaken by all CA’s e.g. replenishment, checkouts etc [but in] addition ... undertook duties which were different to those undertaken by all other CA’s” was, said the claimants, unnecessarily made and in any event was “not supported by evidence”.

[4]We concluded that what the claimants said in paragraph 8 of the EVJD was correct as a matter of fact, and that the substance of the dispute about that paragraph related to the work of Ms Garrod as what the respondent called a “Bake-off” baker. We resolve below such disputes as we concluded were relevant in relation to the work of such a baker. (Where we refer to the work of a baker below, unless otherwise stated, we refer to the work of a “Bake-off” baker.) Accordingly, paragraph 8 of the EVJD (for the avoidance of doubt, in the claimants’ proposed words) is incorporated here.

[5]Paragraphs 9 and 10 of the EVJD were in the same vein and were opposed in the same manner. We agreed with the claimants that the respondent’s assertions in response were unsupported by the evidence before us, but more importantly, the claimants’ assertions in paragraphs 9 and 10 were in our view only just about sufficiently relevant to be included in our findings of fact. But, we concluded that we should accept those paragraphs and that they should be incorporated here. Case Numbers: 3304495/2018 & others 180

[6]Paragraph 11 of the EVJD, however, was a step too far in its generalisation. For example, we found it hard to see that a failure by a customer assistant to comply with the law relating to the retail sale of alcohol in itself was likely to lead to the loss of the licence of the store to sell alcohol. On reconsideration, we could see why the paragraph was included, namely because of the factors to which we refer in paragraph 21 on pages 13-14 above. However, in our judgment there was no need to spell out as a finding of fact for the purposes of section 65(6) of the EqA 2010 the potential consequences of a failure to do properly the work of the employee in question unless there was something out of the ordinary. None of the things referred to in paragraph 11 of the EVJD was in our judgment out of the ordinary.

[7]Paragraph 12 of the EVJD was, however, in our view sufficiently relevant to be included, even if, as the respondent submitted, in practice the acts of Ms Garrod were not followed up by for example tracking her till log-in details. That paragraph is accordingly incorporated here.

[8]Paragraph 13 of the EVJD was on one view so obvious that it did not need to be included. As a matter of fact, however, we accepted, and now state for the avoidance of doubt, that Ms Garrod had to work as a member of a team and therefore had to interact and co-operate with them as necessary. Paragraph 13 of the EVJD illustrated that requirement and is therefore incorporated here on the basis that it was such an illustration. Paragraph 5 on page 321 of our second reserved judgment is incorporated here.

[9]Our finding of fact stated in paragraph 16 on page 324 of our second reserved judgment is incorporated here. That is because what was said in paragraph 22 of the EVJD, which was the subject of paragraph 16 on that page, was illustrative of the manner in which Ms Garrod was required by the respondent to work.

[10]We preferred the respondent’s proposed words for paragraph 14 of the EVJD, which in our view were a better reflection of the reality of how Ms Garrod would in practice help new starters. Paragraph 6 on pages 321-322 of our second reserved judgment is incorporated here.

[11]Paragraphs 7 and 8 on page 322 of our second reserved judgment (concerning Ms Garrod’s shift patterns) and paragraph 9 and the first two sentences of paragraph 10 on the same page (concerning the question whether the respondent encouraged Ms Garrod and of course all other customer assistants working in an Express store to be multi-skilled) are incorporated here. The factual assertions in paragraph 17 of the EVJD are incorporated here, since, on reconsideration, we could see that they were relevant as part of the factual background to an assessment of the value of Ms Garrod’s work for the purposes of section 65(6) of the EqA 2010. The proportions of Ms Garrod’s working hours spent on the tasks summarised in paragraph 20 of the EVJD

[12]Our conclusion stated in paragraph 15 on page 324 of our second reserved judgment (about the proportions of the time spent by Ms Garrod on the various tasks Case Numbers: 3304495/2018 & others 181 summarised in the table in paragraph 20 of the EVJD) is incorporated here but on the basis that, having grasped the nettle so to speak, we accepted what the claimants proposed without any reservation. That was on the basis that Ms Garrod’s estimate was more likely than Mr Diment’s to be reliable, but also on the basis that we retained the doubts expressed in paragraphs 13 and 14 on pages 323-324 of that judgment, which are therefore incorporated here. Store keys

[13]Paragraph 17 on page 325 of our second reserved judgment is incorporated here. Dealing with deliveries Overview

[14]Paragraph 25 of the EVJD was in substance a table, containing multiple factual assertions about what work Ms Garrod did in regard to the receipt of deliveries during the relevant period. Paragraphs 26 and 27 of the EVJD contained supplementary factual assertions. Paragraphs 25-27 of the EVJD, read with paragraphs 18-31 on pages 325-329 of our second reserved judgment, are incorporated here. Preparing to deal with deliveries

[15]What we say in paragraphs 32-34 on page 329 of our second reserved judgment, with the word “was” in the third line of paragraph 32 deleted, is incorporated here.

[16]Paragraph 30 of the EVJD, read with paragraphs 37-39 on page 330 of our second reserved judgment, is incorporated here. What was involved in receiving deliveries Tesco deliveries

[17]Paragraph 31 of the EVJD, read with what we say in(1) paragraphs 40-42 on pages 330-331 of our second reserved judgment and

(2) paragraphs 54-56 on page 335 of that judgment (concerning Ms Garrod’s responsibilities when a delivery arrived; the fact that the respondent required two employees to be present to assist with unloading a delivery was a material part of the background), is incorporated here. Paragraph 32 of the EVJD is incorporated here.

[19]C7/215 (“Bronze 5 (Card 5) – Backdoor and Warehouse – Accepting Deliveries”) is incorporated here. So is the highly informative part of the training video at D9/544 relating to unloading cages from a trailer at a store and what to do when a cage is damaged or it is badly stacked. It started 2 minutes and 30 seconds into the video and ended at 5 minutes 11 seconds in. Case Numbers: 3304495/2018 & others 182

[20]Paragraph 33 of the EVJD, read with(1) C7/215/5,

(2) what is said on C7/215/2 about “Completing Documentation”, and

(3) what we say in paragraph 53 on pages 334-335 of our second reserved judgment, is incorporated here.

[21]Despite repetition of some parts (given what we say in the two preceding paragraphs above), paragraphs 41-43 of the EVJD are incorporated here.

[22]Paragraphs 35, 37 and 39 of the EVJD, read with what we say in(1) paragraphs 43- 50 on pages 331-334 of our second reserved judgment and

(2) paragraph 58 on page 335 of that judgment, are incorporated here. Newspaper deliveries

[23]Paragraph 36 of the EVJD, read with what we say in paragraphs 59-62 on pages 335-336 of our second reserved judgment, is incorporated here. We return to the issue of the putting out of newspapers and magazines in paragraph 80 below. Looking out for damaged items

[24]Paragraph 40 of the EVJD, read with what we say in paragraph 51 on page 334 of our second reserved judgment, is incorporated here on the basis that at a minimum, the frequency with which damaged goods arrived in a delivery was as stated by the respondent, but not as an average: so, one at least per delivery. Third party deliveries

[25]Paragraph 44 of the EVJD, read with what we say in paragraphs 64-65 on pages 336-337 of our second reserved judgment, is incorporated here. Returning UoDs

[26]What we say in paragraph 69 on page 337 of our second reserved judgment is incorporated here. Next steps to take when newly-delivered stock had been taken off the delivery vehicle

[27]Paragraphs 48 and 49 of the EVJD, concerning(1) helping the milk delivery driver reverse out of the Danbury premises and

(2) temporary storage of the delivery paperwork, read with what we say in paragraphs 70 and 71 on pages 337-338 of our second reserved judgment, are incorporated here. Dealing with newly-delivered stock

[28]If and to the extent that paragraph 45 of the EVJD (giving an overview of the work of receiving a delivery) added something factual about the work of a customer assistant in an Express store which was not already obvious (which we doubted given(1) the small footprint of an Express store and

(2) what was said on C7/215/1-3 and C7/215/5-6), that paragraph is incorporated here. Case Numbers: 3304495/2018 & others 183

[29]Paragraph 46 of the EVJD (concerning the delivery of frozen food), read with what we say in paragraphs 67-68 on page 337 of our second reserved judgment, is incorporated here. Pre-sorting

[30]On reconsideration, we concluded that paragraphs 50-54 of the EVJD were accurate in their entirety and should be incorporated here in their entirety subject to what we are about to say. Wasting a product and cleaning up are stated in regard to the work of Ms Garrod in paragraphs 143-144 and 139 below respectively. The application of security tags

[31]On reconsideration, we concluded that what Ms Garrod said in cross-examination as recorded at pages 109-110 of the transcript of day 8 and what Mr Diment said in pages 190-191 of the transcript of day 9 about the extent to which Ms Garrod applied security tags to DVDs and video games, was to the same effect: she did not do that as part of the initial process of putting those things on display, but she did apply security tags to them as necessary.

[32]On that basis, paragraphs 55-58 of the EVJD are incorporated here, but read in the light of the general principle which we state in paragraph 81 on pages 340-341 of our second reserved judgment. Work to do with the coffee machine on the shop floor

[33]Paragraph 84 on page 341 of our second reserved judgment is incorporated here.

[34]The respondent’s words for paragraph 61 of the EVJD (see paragraph 88 on page 342 of our second reserved judgment) are incorporated here, as are the agreed words of paragraphs 62 and 69 of the EVJD.

[35]The final two sentences of paragraph 89 on page 343 of our second reserved judgment are incorporated here, so that C1/32/6-15, showing the work of cleaning and replenishing the Costa machine used at Broomfield Road, are incorporated here. For the sake of completeness, paragraph 64 of the EVJD added nothing material so it is not incorporated here, but paragraphs 65-68 of the EVJD (as proposed by the claimants on the basis that the words to which the respondent objected in paragraph 65 were of some, albeit small, help as part of the background against which the work of changing the milk had to be seen) are incorporated here as supplementing in small ways what was in C1/32/6-15.

[36]Paragraphs 90-92 on page 324 of our second reserved judgment, relating to what was said in paragraph 63 of the EVJD (concerning whether Ms Garrod was required to, or did, leave the coffee machine unattended during its cleaning cycle) are incorporated here. Case Numbers: 3304495/2018 & others 184 Baking Baking as a bake-off baker at an Express store, as done by Ms Garrod; a detailed overview

[37]Paragraphs 93-105 of our second reserved judgment and the training materials referred to in them are incorporated here.

[38]Paragraphs 71-73 of the EVJD are incorporated here.

[39]On reconsideration we concluded that paragraph 74 of the EVJD (for the avoidance of doubt in the form proposed by the claimants), read (also for the avoidance of doubt) with what we say in paragraphs 107-111 on pages 348-349 of our second reserved judgment, was of some evidential value for the purposes of section 65(6) of the EqA 2010. Accordingly paragraph 74 of the EVJD as so read is incorporated here. Defrosting

[40]Paragraph 75 of the EVJD, read with what we say in paragraphs 112-114 on page 349 of our second reserved judgment, is incorporated here. Thus, we accepted the claimants’ words for paragraph 75 of the EVJD but only on the basis stated in paragraphs 112-114 of that judgment.

[41]On reconsideration, we concluded that we should incorporate the claimants’ proposed words for paragraph 76 of the EVJD but in the light of the fact (as found by us) that, as we record in paragraph 119 on pages 350-351 of our second reserved judgment, there were detailed instructions on the packaging in which frozen bakery products arrived, which included a statement of the time which it should take to defrost the product in question.

[42]Paragraphs 77 and 78 of the EVJD are incorporated here. The process of training to be a (bake-off) baker

[43]We accepted as a fact what was stated in paragraph 80 of the EVJD, but that paragraph has to be read in the light of what we say in paragraph 124 on page 351 of our second reserved judgment, to which we now add this: the training required for doing the work of a bake-off baker is shown at least in part by the documents to which we refer in paragraphs 93-104 on pages 343-347 of our second reserved judgment. The process of baking

[44]Paragraph 79 of the EVJD (see paragraphs 121-123 on page 351 of our second reserved judgment) is incorporated here. So is paragraph 82 of the EVJD. The use of protective gloves when moving hot items Case Numbers: 3304495/2018 & others 185

[45]Paragraph 81 of the EVJD, read with what we say in paragraphs 125-127 on pages 351-352 of our second reserved judgment, is incorporated here. What Ms Garrod would do while products were baking

[46]On reconsideration, we could see that we had made a mistake in what we said in paragraph 128 on page 352 of our second reserved judgment. We referred there to what Ms Garrod had said in cross-examination on day 10, but actually that was a record of what Mr Diment had said. As we said at the end of paragraph 128 on page 352 of the judgment, “the respondent plainly was able to require the JH to do some general replenishment work while items were being baked.”

[47]We record here that on reconsideration we were reminded that in response to paragraph 83 of the EVJD, the respondent had proposed these words to replace the final sentence of the paragraph as proposed by the claimants (“Certain products were meant to arrive with sheets of labels, but the sheets were sometimes missing, so JH kept a backstock of labels that she could use if needed.”): “Certain products were meant to arrive with sheets of labels, but the sheets were sometimes missing. It was common practice for colleagues carrying out Bake-Off tasks to keep spare labels that could be used if needed.”

[48]There, we were reminded, the respondent was doing precisely what we concluded had to be done, which was to look at what the work of a baker was, and not how a particular job holder did it.

[49]In fact, there was argument in paragraph 83 of the EVJD of an inappropriate sort, bearing in mind(1) what we say in paragraph 30 on page 17 above about the possibility of double-counting if the knowledge of the potential impact of a mislabelling was taken into account as a fact by us and the IEs as well as that impact, and

(2) the passage of Lavender J’s judgment in Beal & Others v Avery Homes (Nelson) Limited & Others

[2019] EWHC 1415 (QB)

which we set out in paragraph 20 of our first reserved judgment of 12 July 2023 (concerning the need to be at the very least wary of taking into account at this stage the potential legal impact on the employer of a failure to do something).

[50]What we say in paragraph 129 on pages 352-353 is applicable here (and therefore incorporated here). However, given the fact that we had concluded that we should resolve all of the disputes put before us after all in one way or another, we concluded (contrary to what we said in paragraph 132 on page 354 of our second reserved judgment) on reconsideration that paragraph 83 of the EVJD should be incorporated here without the sentence “JH understood the impact incorrectly labelled items may have posed on the health of customers, particularly for those with allergies; JH understood the legal and reputational damage Tesco may face should the correct information not be present.” Case Numbers: 3304495/2018 & others 186

[51]We add that by including what the claimants proposed for the final sentence of paragraph 83, we are simply concluding that what she did there was part of the work of a bake-off baker, which is what, we thought, the respondent was confirming by its proposed replacement words for that sentence.

[52]We add too that what we said in paragraph 131 on pages 353-354 of our second reserved judgment added considerably to what was said in the EVJD. That paragraph is accordingly incorporated here.

[53]We record here that while on one view it would be surprising if it were necessary to label something which is normally made from a grain, such as wheat, as containing gluten (since a person who was allergic to gluten could reasonably be expected to know that for example bread made from wheat contains gluten), what we said in paragraph 131.3 on pages 353-354 of our second reserved judgment showed that such labelling was necessary throughout the relevant period.

[54]Paragraph 84 of the EVJD (which was about the first step to be taken once baked items had cooled), read with what we say in paragraphs 133-135 on pages 354-355 of our second reserved judgment, is incorporated here.

[55]Paragraph 85 of the EVJD, which was about finishing off baked goods, is incorporated here but (see paragraph 138 on page 355 of our second reserved judgment, which is incorporated here) without the sentence “JH had to put the bag into a cup of hot water or the microwave (for 10 seconds) to thaw it out.”

[56]On reconsideration, we concluded that paragraph 86 of the EVJD was, as a factual statement, accurate as far as the demands of the work in question were concerned (and from what we say in paragraph 139 on pages 355-356 of our second reserved judgment, it can be seen that the parties’ factual contentions about the number of trips required to the shop floor with trays of items to be put out on display converged on the number eight). We also concluded that the content of that paragraph was sufficiently relevant to be capable of being taken into account by the IEs. However, paragraph 86 of the EVJD had to be read with what we said in paragraphs 140-141 on pages 356-357 of our second reserved judgment, which we incorporate here but with the reservation that while we will be very surprised if the precise number of trips with baked goods to the shop floor is material, at this stage we cannot say that it is immaterial, so we will look again at this factual situation carefully at the final hearing, when the question of value falls to be determined. What was capable of being material to some extent was the time which it typically took to replenish bakery items, and that was the subject of paragraphs93.1 and

93.2 of the EVJD (to which we return in paragraph 63 below). Cleaning

[57]The agreed paragraphs 87-89 of the EVJD are incorporated here, although the final two of those three paragraphs stated no more than the impact of the requirements of the respondent stated in the training materials to which we refer in paragraphs 144 and 145 on pages 357-358 of our second reserved judgment, which (i.e. those Case Numbers: 3304495/2018 & others 187 paragraphs and the training materials referred to in them) are incorporated here. So is paragraph 90 of the EVJD. The rest of the work of Ms Garrod Introduction

[58]On reconsideration, we addressed the parties’ factual disputes in relation to the rest of the work of Ms Garrod for the sake of completeness and to ensure that no stone was left unturned by us. Replenishment Relevant training materials showing most of the work of replenishment

[59]The documents to which we refer in paragraphs 112, 113 and 154 of appendix 2 above (on pages 115-116 and 121-122 respectively above) are incorporated here. So are the documents to which we refer (in some cases via a cross-reference) in paragraphs 16-19 inclusive of appendix 2 on page 103 above. The documents incorporated here via paragraph 7 of appendix 2 on page 102 above include the documents referred to via paragraph 25 of appendix 1 on page 91 above. Specific parts of the EVJD to which we need to refer here

[60]Paragraph 91 of the EVJD was the single short sentence: “JH replenished throughout the day.” It was opposed on the basis that Ms Garrod did not do that since she did things other than replenishment too. It was obvious that she had to replenish during the whole of the day, as that was part of her work, but when she was for example helping to receive a delivery, working on a till, or doing bake-off work, then she could not be replenishing. That was the purport of the claimants’ justification for the text, and we agreed with them that if and in so far as it added anything to the picture of the work of a customer assistant doing bake-off work, operating a till, helping to receive deliveries and replenishing at an Express store, it was material. Was it material? Yes, it was, because it meant that there was no time when a customer assistant in the position of Ms Garrod could assume that all of the work which she was employed to do was done. That was borne out by what the claimants had put in paragraph 93 of the EVJD: “It was difficult to be more specific about the replenishment part of JH’s role; one of the elements of her job was to be flexible and ‘do what needs doing’.”

[61]In addition, paragraphs 91-93 of the EVJD were disputed by the respondent to the extent that it was implied in those paragraphs that Ms Garrod herself decided what to replenish when she was replenishing. They were also disputed (as we indicate in the final full sentence of paragraph 154 on page 360 of our second reserved judgment) on the assumption that it was necessary to know precisely what kind of goods were being replenished, and as we say in that paragraph, we thought that it was only if the goods were frozen that there might be an additional demand of any sort arising from the nature of the goods. Case Numbers: 3304495/2018 & others 188

[62]On reconsideration, with one caveat, we were still of that view. By way of illustration, the respondent disputed the assertion in paragraph 93.4 of the EVJD that Ms Garrod replenished bread 2-3 times per week for 10-15 minutes. The time estimate of 10-15 minutes was agreed by the respondent, but the respondent said that the frequency with which Ms Garrod replenished bread was, instead, once every two weeks. In our view what was important was the proportion of the time of this particular job holder spent on replenishing items which were not frozen as compared with those which were frozen, even though replenishment of frozen goods was no different from replenishment of other goods in one sense, and even though the impact of the low temperature of the frozen items could be avoided by using protective gloves and other clothing.

[63]We were unable to see from the respondent’s evidence precisely why the respondent objected to three of the five subparagraphs of paragraph 93. The claimants accepted the respondent’s correction of paragraph 93.5, but the respondent said that that was a duplication of paragraph 118 (which it was not, although if it had to be the subject of a specific finding of fact then it was best to group those two provisions together).

[64]The respondent’s evidence on which its objection to the detail of paragraph 93.2 of the EVJD was based did not include an assertion of the amount of time that Ms Garrod spent replenishing fresh items otherwise than in her first six months of working at Broomfield Road. That was unhelpful as we thought that the real issue was what was the proportion of time that Ms Garrod typically spent doing the work of replenishment over the whole of the relevant period, and of course not just in that period of six months. The claimants did not deal with that issue in their submissions in support of paragraph 93.2 of the EVJD. However, the key issue here was what work Ms Garrod did throughout the day, and if she spent more time replenishing during her first six months at Broomfield Road then that will have been because she was not baking.

[65]The caveat which we mention at the start of paragraph 62 above is that the different weights of items being replenished were, on reconsideration we could see, relevant to the demands of the work of replenishment, so that the proportion of time spent on replenishing was relevant. However, that issue was the subject of paragraph 20 of the EVJD, on which we state our conclusions in paragraph 12 above. On that basis, paragraph 93 of the EVJD was a duplication and should not be incorporated, and that is what we concluded.

[66]In contrast, on reconsideration, we concluded that the whole of paragraph 94 was relevant and should be incorporated here. The fact that Ms Garrod used cardboard on damaged flat-top (or blue top) trolleys as necessary was, we thought on reconsideration, a relevant fact. It was true that the respondent required any broken equipment to be replaced, but if in practice the damage could be mitigated by a sensible adjustment by a practice of which the respondent was aware, then that adjustment was plainly in our view part of the work of a customer assistant. Mr Diment himself did what Ms Garrod did in that regard, it appeared from paragraph 194 of his first witness statement. Case Numbers: 3304495/2018 & others 189

[67]We also saw no good reason to reject the content of paragraph 95 of the EVJD, and we therefore incorporate it here. The final sentence, which was opposed on the basis that its meaning was unclear, was in our view clearly to the effect that Ms Garrod decided in which aisle to start replenishing when a cage of mixed products was delivered and those products needed to be put out on the shop floor immediately.

[68]The allegations in paragraphs 96-133 of the EVJD were about relevant things, but in a number of respects those things as aspects of the work of an Express customer assistant were stated more reliably and comprehensively in the documents to which we refer in paragraphs 112-113 of Appendix 2 on pages 115-116 above. Having said that, parts of paragraphs 96-133 needed to be specifically accepted or rejected. We therefore now turn to the content of those paragraphs.

[69]Paragraph 96 of the EVJD related to attaching an empty waste bag to the cage from which the job holder was replenishing. Paragraph 256 of the EVJD was a repeat of paragraph 96, although it referred also to replenishing from a “Flat Top”. The attachment of a “Rubbish Collector” to both of those things was dealt with on C7/353/2. At C7/860/2, it was referred to in connection with a “Slimline cage” as a “Recycling bag (Blue bag)”. Those training materials (which are incorporated here via paragraph 59 above) were the better description of what was said in paragraphs 96 and 256 of the EVJD about rubbish collectors or recycling bags, and we therefore declined to incorporate those parts of those paragraphs here.

[70]Paragraph 96 of the EVJD also referred to the use of gloves for replenishing “cold stock”. In fact, C7/187 (“KYS For Express: Replenishment – Working In The Cold Chain”; it is incorporated here via paragraph 59 above) referred to gloves only for replenishing frozen food. There, this was said on the first page: “When working in the freezer ensure you are wearing a freezer jacket and gloves if you are going to be working in there longer than a few minutes and a fleece when working in the chiller. If a freezer jacket is not available you should report this to the Duty Manager.”

[71]Paragraph 97 of the EVJD was this: “JH pulled her Cage to the shop floor and transferred stock from the Cage to the shelves. She tried to position equipment to limit inconvenience to others, but space was tight. JH regularly used a Kick Stool to replenish the back of the highest shelves.” That was opposed on the basis only that (as it was said by the respondent) Ms Garrod did not use such a stool to replenish the back of the highest shelves regularly; such a stool was said instead to have been used only once a week. However, we thought it right to point out that the first two sentences stated things which were obvious. We saw that they were not opposed, but they were in our view implicit in the proposition that Ms Garrod replenished stock in the store in which she worked. As for the third sentence, equally, if the stock had to be put on a shelf which was too high for the job holder to put it there without being able to stand on a stool, then it was also obvious in the circumstances that she would need a stool. How often that occurred would vary with the height of the customer assistant in question. Did that affect the value of the work for the purposes of section 65(6) of the EqA 2010? We could not see how it could. But in any event, all that was Case Numbers: 3304495/2018 & others 190 needed to be known by the IEs and us for those purposes was in our view inescapably the fact that if a “kickstool” (that being the spelling at C7/353/2) was needed then it was (or at least should have been) available and could be used. That it should be available was clear from C7/353/2.

[72]Paragraph 98 of the EVJD, relating to the replenishment of fresh and frozen stock, was rather less informative about that task than C7/187. In fact, paragraph 98 crossreferred to paragraph 244 of the EVJD, which said merely that “JH checked temperatures (for example as set out in paragraphs 52 and 70) and checked that the freezers are working (as set out in paragraph 115).” Paragraph 243 of the EVJD went a little further than paragraph 244, but we repeat that we found C7/187 to be a more informative and in our view reliable, statement of the work of a customer assistant (whether in an Express store or any other store) replenishing products which were in what the respondent called the Cold Chain. Nevertheless, on reconsideration we could see that paragraph 98 of the EVJD said something which might affect the determination of the value of the work of such a customer assistant because it showed how, in practice, this particular one sought to work within that chain. Paragraph 98 is therefore incorporated here.

[73]Paragraph 99 was not opposed, and for the avoidance of doubt we accepted that, factually, it was not open to criticism and was an apt statement of the work except that if, as it said, Ms Garrod “rearranged” products which were in a place with a shelfedge label which did not apply to them, then doing so, as stated in paragraph 99 “appropriately” must have meant putting them into the place where there was a shelfedge label for them. However, what we regarded as a better description of the work in question was at73.1 C7/142/24 and C7/823/40-44, which we have incorporated here via paragraph 59 above, and

73.2 the documents referred to in paragraphs 154.1 and 154.9 of Appendix 2, at pages 121-122 above (which are incorporated here via paragraph 59 above).

[74]The content of paragraph 100 of the EVJD was in substance agreed by the time of closing submissions, and we incorporate it here.

[75]Paragraph 101 of the EVJD described what was dealt with clearly and definitively at C7/189, which showed that what was said in paragraph 101 was entirely unobjectionable for present purposes. Accordingly, the respondent’s objection to the bulk of it was wrong, but we have already incorporated C7/189 via paragraph 59 above (read with the final sentence of paragraph 53 on page 25 above) and (for the avoidance of doubt) paragraph 112.6 of appendix 2 on page 115 above, so we saw no point in expressly incorporating paragraph 101 here.

[76]Paragraph 102 of the EVJD was about “out of stock” labels for the bakery. There was in substance no dispute about it: whether one described the labels as being merely available or being kept by Ms Garrod was irrelevant. However, someone would have to ensure that the out of stock labels did not run out (while that was obvious, it was Case Numbers: 3304495/2018 & others 191 the clear implication from C7/191/2 which we have set out in paragraph 141 on page 356 of our second reserved judgment) and there was no one better than the person who did the baking to make sure that the labels did not run out. So, we accepted that Ms Garrod took responsibility for ensuring that the “out of stock” labels did not run out, and that it was part of her work for the purposes of section 65(6) of the EqA 2010 to do that.

[77]What we say in paragraph 158 on pages 361-362 of our second reserved judgment is incorporated here, as are paragraphs 103 and 104 of the EVJD, to which paragraph 158 relates.

[78]Paragraphs 105 and 106 of the EVJD were about stock rotation and date codes, as were paragraphs 123-126 of the EVJD. What we say in paragraphs 146-151 on pages 358-360 of our second reserved judgment put it beyond doubt that the content of those paragraphs of the EVJD was apt if taken alone. However, those paragraphs of the EVJD (105 and 106) were repetitious given our incorporation via paragraph 59 above of paragraph 83 on pages 52-55 of our second reserved judgment.

[79]We incorporate here what we said in paragraphs 159 and 160 on page 362 of our second reserved judgment, relating to paragraphs 113 and 117 of the EVJD respectively. Except as stated in paragraph 160 on page 362 of our second reserved judgment, we could see nothing in paragraphs 107-117 of the EVJD which added anything material to the training materials which we have incorporated via what we have said above. Newspapers and magazines

[80]Paragraph 118 of the EVJD was disputed on the basis that it was misleading to say that “Putting out the stock took between 30 minutes and an hour, depending on the inserts and whether another member of staff was available to help.” That was on the basis that (as it was said by the respondent in closing submissions)(1) the work was done at Danbury only and

(2) “there were no magazines to insert into the weekday papers”. Accordingly, the respondent asserted, it took only “up to 15 minutes” to put the newspapers on display. We found it hard to see why it was necessary to make such a detailed finding of fact for the purposes of determining the demands of the work of a replenisher at an Express store. Having said that, we found it hard to see the work taking half an hour, but given the photograph at C1/2/31, we could see that it might do so, depending on what needed to be inserted into the newspapers. We could not conclude that there were never such inserts during the week, so (given what was said in cross-examination by Mr Diment at pages 53-54 of the transcript of day 10) we concluded that the work took up to 30 minutes. As for the respondent’s proposition that the work was done only at Danbury, that was based what Mr Diment said in paragraph 539 of his first witness statement. Given what we say in paragraph 23 above, we concluded that that proposition was not well-founded and that it was simply the case that Ms Garrod did the work of putting out newspapers in the manner stated by us in paragraph 62 on page 336 of our second reserved judgment. Flowers Case Numbers: 3304495/2018 & others 192

[81]Paragraph 119 of the EVJD, read with paragraphs 161 and 162 on page 362 of our second reserved judgment, is incorporated here. Alcohol

[82]Paragraphs 120 and 121 of the EVJD, read with paragraphs 163-165 on pages 363 of our second reserved judgment, and therefore read also with C7/190 (C7/207 being a duplicate of C7/190), which we have incorporated via paragraph 59 above and paragraph 112.7 of appendix 2 on page 115 above, are incorporated here. Fresh produce

[83]Paragraph 122 of the EVJD is incorporated here. Its words (like those of paragraph 20.4.1 of the EVJD for Ms Williams, to which we refer in paragraph 155.8 of appendix 2 on pages 122-123 above) added something slight to the detailed content of C7/454. Out of code products

[84]We concluded on reconsideration that we should incorporate here the whole of paragraphs 123-126 of the EVJD, not least because they were consistent with the respondent’s relevant training materials such as C7/860, to which we refer in paragraph 166 on page 363 of our second reserved judgment. Products that are “not on file”

[85]The fact that an Express customer assistant had to deal with products which were “not on file” was not disputed. The frequency with which that occurred was, however, disputed. We concluded that paragraph 127 of the EVJD was a correct statement of such frequency and that it should be incorporated here, but that paragraph 127 of the EVJD should be read with what we say(1) in paragraph 81 on page 104 of our second reserved judgment and

(2) in paragraph 112 below. The frequency was, for the avoidance of doubt we concluded, as stated in paragraph 81, namely “occasionally”. Given what we say in paragraph 112 below, paragraph 127 of the EVJD is incorporated on the basis that it refers only to what happened when Ms Garrod was replenishing, and not what happened when she was working at a checkout. Paragraph 128 of the EVJD

[86]Paragraph 128 of the EVJD was in these terms: “The Put Back phase of the replenishment cycle covered the process of returning products to the warehouse from the shop floor.” Case Numbers: 3304495/2018 & others 193

[87]They were unobjectionable but of no evidential value, since all that they did was define what the respondent called the “Put Back phase of the replenishment cycle”. To ensure clarity, we concluded that paragraph 128 should be incorporated here. Waste bag

[88]Paragraph 129 was a repeated reference to the use of a waste bag (it was first referred to in paragraph 96 of the EVJD, to which we refer in paragraph 69 above). We could see that there was a need to add the second sentence of paragraph 129 of the EVJD to the factual situation, to ensure that the task of disposing of a full waste bag was not forgotten by the IEs or us. That sentence is therefore incorporated here. The “Rumble”

[89]We erroneously referred in paragraph 167 on pages 363-364 of our second reserved judgment to the Rumble as being described in paragraph 131 of the EVJD. It was, in fact, referred to in paragraph 130 of the EVJD.

[90]In fact, on reconsideration, we could see that the text of paragraph 130 as proposed by the claimants was factually correct. Whether it added anything material to a statement of the work of an Express store replenisher was another matter, but on balance we concluded that it did, despite the ongoing requirement to do the work of rumbling as stated by us in paragraph 167 on pages 363-364 of our second reserved judgment. The parties’ dispute about the frequency with which Ms Garrod assisted in a rumble was about estimated percentages of the times when she did that. If, which we doubted very much, it was necessary to determine that dispute, we did so by concluding that(1) the evidence of Mr Diment in paragraph 582 of his first witness statement showed that the figure of 30%-40% for Danbury had to be accepted and

(2) that evidence showed that the figure of 20%-30% for Broomfield Road was not obviously wrong so that it too should be accepted. Paragraph 130 of the EVJD is therefore incorporated here. Range changes

[91]Paragraph 131 of the EVJD (“Tesco performed a range change to introduce new or seasonal products. JH became aware when a range change was imminent either because a Shift Runner told her or because she noticed different lines of stock arriving in deliveries. Range changes occurred at least twice a year and up to four times a year at both stores. JH assisted with frozen and bakery range changes.”) was disputed on the basis that all that Ms Garrod did by way of assisting with bakery range changes was to swap labels round, so that, it was asserted, she did not participate in such range changes. In addition, it was said that the frozen food range changes occurred only twice a year. We observe that if Ms Garrod was not doing very much about a bakery range change, or if she was not participating in a frozen range change four times a year and was doing so only twice a year, then she will have been doing something else which was probably equally demanding. However, the parties evidently thought that the disputed allegation was material, and on reconsideration we concluded that we should resolve the dispute if only for the Case Numbers: 3304495/2018 & others 194 avoidance of doubt. We did that having read the parties’ submissions and the passage of the cross-examination of Ms Garrod set out in the claimants’ closing submissions. We concluded that the frequency with which a range change occurred was not the subject of any concrete evidence and that both parties were probably overstating their cases slightly, so that the truth was in the middle. We concluded that range changes occurred about twice a year. Paragraph 131 of the EVJD is incorporated here on that basis (so, in the claimants’ proposed words excluding “and up to four times a year”).

[92]As for paragraph 132 of the EVJD, we saw no good reason to reject the factual allegations in that paragraph, and therefore accepted them on the basis that the claimants’ case (and therefore Ms Garrod’s evidence) about packaging being too tall to fit into the intended place was more likely than not to be true. So, paragraph 132 of the EVJD is incorporated here.

[93]Paragraph 133 of the EVJD, read with what we say in paragraph 160 on page 362 of our second reserved judgment, is incorporated here. Stock counts

[94]Paragraphs 134 and 135 of the EVJD are incorporated here. Use of a PDA

[95]Paragraphs 136-140 of the EVJD, read with what we say in paragraphs 169-170 on page 364 of our second reserved judgment, are incorporated here. Product recalls

[96]Paragraph 141 of the EVJD (“A product would be recalled between two or three times a year at both stores. In the event of a product recall, JH assisted with taking products off the shelf when requested by a Shift Runner.”) is incorporated here. We say that on the assumption, which we doubted, that it added anything material. That doubt is based on the proposition that taking identified products off a shelf was no different from moving excess stock from the shop floor. Working on the checkouts

[97]The documents referred to in paragraphs 24 and 25 of appendix 2 on pages 104-106 above are incorporated here. If we do not refer below to a disputed part of the EVJD relating to the work of Ms Garrod on a checkout, it is because we concluded that that part of the EVJD was a repetition of one or more of the parts of those documents. In some cases, for the avoidance of doubt, we resolve disputes about a part of the EVJD which relates to a subject which is fully covered in one or more of those documents. We have, purely for the sake of completeness and the avoidance of doubt, incorporated below agreed parts of the EVJD which were unnecessary given what is said in the documents incorporated via the first sentence of this paragraph. Case Numbers: 3304495/2018 & others 195

[98]Paragraph 142 of the EVJD (which, with paragraphs 143-152 of the EVJD described aspects of the work of a customer assistant in relation to checkouts) is incorporated here.

[99]In our second reserved judgment we did not resolve the parties’ disputes about paragraph 143 of the EVJD. We thought on reconsideration that the claimants’ description in that paragraph of the way in which Ms Garrod worked was precisely how a customer assistant in the position of Ms Garrod should work, and was consistent with the training materials at C7/76 and C7/200 (which are incorporated via paragraph 97 above).

[100]We referred to paragraph 146 of the EVJD in paragraph 171 on page 364 of our second reserved judgment but did not expressly resolve the disputes about it. Here, we record that paragraph 146 in our view raised nothing new, since it was consistent with the training materials which we incorporated via paragraph 97 above (to which, in the rest of this part of this appendix, we refer simply as “the training materials”). Nevertheless, we thought it right to say that we concluded that paragraph 146 of the EVJD was well-founded factually and that it should be incorporated here for the sake of clarity and the avoidance of doubt.

[101]For similar reasons (including what we say in paragraph 172 on pages 364-365 of our second reserved judgment), we concluded that paragraph 147 of the EVJD in its entirety should be incorporated here.

[102]Paragraphs 148-152 of the EVJD are incorporated here.

[103]Paragraphs 153 and 154 of the EVJD (which, with paragraphs 155-156 of the EVJD, related to work done in relation to the self-service checkouts at Broomfield Road), read with what we say in paragraph 173 on page 365 of our second reserved judgment, are incorporated here.

[104]The dispute about the content of paragraph 155 of the EVJD was not resolved by us in our second reserved judgment. We concluded that that content was unimpeachable as an encapsulation of what a customer assistant in the position of Ms Garrod should (as required by the training materials) do, so it is incorporated here.

[105]The entirety of paragraph 156 as proposed by the claimants is incorporated here. That is in part for the reasons stated in paragraphs 174 and 175 on page 365 of our second reserved judgment. It is also because(1) what was in paragraph 156 of the EVJD was consistent with the training materials and

(2) the respondent’s evidence about the frequency with which Ms Garrod in fact did the things which were referred to in the detailed subparagraphs of paragraph 156 (such as replacing a till roll, as stated in paragraph 156.9) was irrelevant in that the paragraph stated what the job holder was required to do from time to time, not how often she did it. Here, we concluded, (1) what was relevant was the fact that there was in practice a need to do those things, and (2) the frequency with which something might need to be done was Case Numbers: 3304495/2018 & others 196 relevant only if it was so rare that it would be wrong to say that it was part of the work of the job holder to be ready to do it if necessary.

[106]We did, however, agree with the respondent that it was necessary to avoid doublecounting, so that any repetition was aptly pointed out. It was said by the respondent that the content of paragraph 156.5 of the EVJD was repeated in paragraphs 206 and 207 of the EVJD. We disagreed with that proposition. Ideally, all of those paragraphs would have been in one place, but the fact that they were dealt in two different places of the EVJD (which, as we say, was not ideal) meant that in order to ensure that nothing relevant was omitted from the IEs’ and our consideration (and because of the need to ensure a certain amount of textual cohesion), we had to incorporate all of paragraphs 156.5 and 206-207 of the EVJD in this appendix.

[107]While, as we said in paragraph 176 on page 365 of our second reserved judgment, the parties had agreed the substance of paragraph 157 of the EVJD by the time of closing submissions, it was in our view aptly pointed out by the respondent that what was said in paragraph 157 of the EVJD meant that paragraph 264 of the EVJD was a simple and unnecessary repetition. The latter (“JH was required to keep her password confidential.”) was in fact obvious.

[108]Paragraphs 158-163 of the EVJD (relating to the use of a “standard, staff-operated” checkout) are incorporated here.

[109]Paragraph 164 of the EVJD was (in part because of what we said in paragraph 177 on page 366 of our second reserved judgment) in our view a correct statement of what was required as well as what was done by Ms Garrod in the circumstances described in the paragraph (which were what had to be done when a till was not working), which we accordingly incorporate here.

[110]Paragraph 165 of the EVJD, read with paragraph 178 on page 366 of our second reserved judgment, is incorporated here.

[111]Given what we say in paragraph 179 on page 366 of our second reserved judgment, paragraph 166 of the EVJD (concerning till prompts) without its final two sentences is incorporated here.

[112]Paragraphs 167-172 of the EVJD (concerning voiding items, reduced items, and items “not on file”) are (given what we say in paragraphs 180 and 181 on page 366 of our second reserved judgment) incorporated here. In fact, on reconsideration we could see that paragraphs 170-172 went further than, and were inconsistent with, paragraph 127 of the EVJD, to which we refer in paragraph 85 above. Given what we say in paragraph 85 above, paragraphs 170-172 of the EVJD are incorporated here on the basis that they referred only to what happened when working at a checkout.

[113]Paragraphs 173-177 of the EVJD (relating to shopping bags and packing bags) are incorporated here. That is in part because while the content of paragraph 174 of the EVJD was stated by the claimants to be contested by the respondent, the respondent’s closing submissions did not contest it, and the relevant page of the Case Numbers: 3304495/2018 & others 197 training materials (C7/151/6; C7/167, to which the claimants referred was a duplicate of C7/151) showed that what was said in paragraph 174 was correct. In addition, for the reasons stated by us in paragraph 182 on page 366 of our second reserved judgment, paragraph 176 of the EVJD was in apt terms.

[114]Paragraphs 178-183 and paragraph 185 of the EVJD concerned payment methods and related issues. In that regard, on reconsideration we remained of the view (expressed by us in paragraph 183 on page 366 of our second reserved judgment) that for the purposes of section 65(6) of the EqA 2010 it was not important how often the things which were described in those paragraphs occurred in practice at the place where Ms Garrod worked, as long as it was not so infrequent that the thing could be ignored for those purposes. What was important was that the job holder was aware of what to do as described in those paragraphs, and did it as and when required to do so. As a result, paragraphs 178-183 and paragraph 185 of the EVJD, read in the light of what we say in this paragraph and in paragraphs 183-186 on pages 366-367 of our second reserved judgment, are incorporated here. For the avoidance of doubt, as we say in paragraph 186 on page 367 of our second reserved judgment, what was required for and in relation to a till lift was stated by us in paragraphs 29 and 30 on page 88 of our second reserved judgment.

[115]Paragraphs 186 and (see paragraph 187 on page 367 of our second reserved judgment) 187 of the EVJD, concerning what to do about clubcards, are incorporated here.

[116]Paragraphs 188-191 of the EVJD concerned vouchers on which customers relied and the use of staff discount cards (called by the respondent “Privilegecards”). We did not in our second reserved judgment resolve the dispute about frequency maintained by the respondent in regard to paragraph 188 of the EVJD, relating to “voucher-based promotions”. On reconsideration, we concluded that that was right, for the reasons given in paragraph 114 above and because paragraph 188 was merely illustrative of the type of thing that a customer assistant such as Ms Garrod might have to do in relation to a “vouchers-based promotion”. Paragraphs 188-191 (in relation to the latter, see paragraph 188 on page 367 of our second reserved judgment), are incorporated here.

[117]Paragraphs 192-199 concerned age-restricted sales. The responsibilities of a customer assistant in an Express store in that regard were stated most clearly in C7/32, C7/48, and, as we say in paragraphs 137 and 138 on page 67 of our second reserved judgment, C7/13 (although in fact only the first 18 pages of that document are relevant), C7/15 and C7/190. As for the respondent’s allegation (in response to paragraph 193 of the EVJD) that a till prompt might appear, that was true and relevant, but had to be read with what we say in paragraph 83 on page 104 of our second reserved judgment. With those rather significant caveats, we decided that paragraphs 192-199 of the EVJD should be incorporated here as a helpful reminder of the manner in which Ms Garrod in practice did (and a customer assistant in the position of Ms Garrod was required to do) in relation to age-related sales. Case Numbers: 3304495/2018 & others 198

[118]Read with paragraph 190 on page 367 of our second reserved judgment, paragraph 200 of the EVJD (concerning the selling of fuel) is incorporated here.

[119]Read with what we say in paragraph 191 on page 368 of our second reserved judgment, paragraphs 201 and 202 of the EVJD (which related to “other services” which were offered at a checkout and the respondent’s policies on returns and exchanges) are incorporated here.

[120]Housekeeping at a checkout was dealt with in C7/155, which is incorporated via paragraph 97 above. The content of C7/155 showed that the content of paragraphs 203-205 of the EVJD was correct, but by no means a comprehensive statement of what a checkout operator needed to do by way of “housekeeping”. Nevertheless, for the avoidance of doubt, paragraphs 203-205 of the EVJD are incorporated here.

[121]Items left behind by customers were dealt with at C7/155/3, which showed that paragraphs 206-208 of the EVJD were apt. We concluded that those paragraphs should be incorporated here. Lottery sales

[122]The training materials relating to lottery ticket sales referred to in paragraph 62 of appendix 2 on page 109 above are incorporated here.

[123]On reconsideration, we could see that it would avoid problems if we determined the disputes in paragraphs 209-227 of the EVJD.

[124]Paragraph 209 is incorporated here including the words “but JH knew the login information if needed”. That is because C7/172/1 showed that a customer assistant might be required to log onto and off a lottery terminal, so if Ms Garrod knew the “login information” then that was relevant to her role of customer assistant, even if in practice she did not need to use that information.

[125]Paragraph 210 of the EVJD is incorporated here as the opposition of the respondent to its content was about a very small potential difference in the time it would take to create “a new Fastpay card”, which was in our view immaterial for present purposes.

[126]Paragraph 211 of the EVJD is also incorporated here as C7/170 showed that customer assistants who sold lottery tickets were encouraged to learn about the lottery games for which tickets were sold at the stores at which they worked.

[127]Paragraphs 212-223 of the EVJD are incorporated here but must be read with what we say in paragraph 193 on page 368 of our second reserved judgment. So, paragraphs 212-213, concerning Fastpay tickets, were less informative than C7/173, which superseded those paragraphs. Paragraph 214 of the EVJD was rather less informative than C7/172. What was said and shown at C7/174/3-4 was almost the same as the content of paragraph 220 but those pages of C7/174 were more informative because they contained pictorial guidance as well as words of instruction. They also showed that the word “validated” in paragraph 219 of the EVJD was not Case Numbers: 3304495/2018 & others 199 used, but that it appeared to be a reference to the “pink Camelot slip” to which reference was made at the bottom of page C7/174/4, which was this: “On completion staple together the winning ticket, pink Camelot slip and till refund slip and place in the till draw[er].”

[128]Given what we say in paragraphs 193-195 on pages 368-369 of our second reserved judgment, and the words set out at the end of the preceding paragraph above, paragraph 224 of the EVJD is incorporated here despite any duplication given the incorporation of C7/174.

[129]As for paragraph 225 of the EVJD, while it was unlikely to add anything material to the demands of the work of Ms Garrod, we could see that it was about something done in the course of her work which was consistent with the respondent’s customer service principles, and that the only opposition to it related to the frequency with which she did that thing. On that, we could see no good reason (despite Mr Diment’s evidence in paragraph 474 of his first witness statement, which he expressly said was an “estimate”) to reject the evidence of Ms Garrod. Paragraph 225 of the EVJD is accordingly incorporated here, as are the following two paragraphs of the EVJD (which were agreed). Safe manual handling practices

[130]Paragraph 228 of the EVJD (about “safe manual handling techniques”) was unnecessary given our incorporation via paragraph 59 above of C7/142.

[131]We did not in our second reserved judgment decide whether the respondent’s objection to the detail of paragraph 229 of the EVJD was apt. That paragraph was about what Ms Garrod actually did in putting UoDs and green trays away once she had put their contents out on the shop floor or away as backstock. The manner in which green trays had to be stacked was stated at C7/142/10, which was not as stated in paragraph 229 of the EVJD, but the content of paragraph 229 was not in substance opposed by the respondent. The only reason for the respondent’s opposition to it was that it did not make it clear that it was only for the first six months of Ms Garrod’s employment at Broomfield Road that she was likely to have had to stack green trays. As a matter of fact, that was a well-founded objection, but it did not mean that it was not part of the work of an Express customer assistant (including Ms Garrod here) to know how to stack green trays safely, and to apply that knowledge. We therefore accepted that paragraph 229 of the EVJD should be incorporated in the respondent’s proposed words but with that caveat in mind. Personal hygiene

[132]Paragraphs 230-233 of the EVJD concerned personal hygiene. They were not opposed and, not least because they were perfectly sensible and consistent with the content of C7/179, they are incorporated here. Case Numbers: 3304495/2018 & others 200

[133]Paragraph 234 of the EVJD was opposed on the basis that it wrongly said that Ms Garrod could not work if she had “open or weeping wound”. That opposition was wellfounded, because at C7/179/52, this was said. “All cuts and wounds should be covered with a waterproof dressing before starting work - these are blue so that they can be spotted if they fall off into food. They can be found in the first aid boxes - if a dressing does fall into food - the food must be thrown away.”

[134]Paragraph 234 of the EVJD was also opposed on the basis that it said that if Ms Garrod “had been in contact with anyone suffering from food poisoning symptoms” then she “would not be able to work”. That opposition was also well-founded. That was because all that was said in that regard in C7/179 was also at page 52 and was this, which was under the heading “Scratch Bakery Staff”. “You must inform your manager immediately (and before starting work) if you are suffering from a cold, boils, sore throat, septic wounds, upset stomach, diarrhoea, sickness. Also, if you have any symptoms of food poisoning or have been in contact with someone with it, or you have an ear, nose or throat infection.”

[135]As a result, it was possible that the job holder would then be asked not to work, but plainly it was not mandatory. As a matter of common sense, that was plainly correct: for example, the mere fact that an employee had been in contact with someone who had had food poisoning would not, at least normally and as far as we could see, make them a risk to anyone else. Food safety

[136]Paragraphs 235 and 236 of the EVJD were about knowledge of higher risk foods. Paragraph 235’s reference to higher risk foods was shown to be apt by what was said at C7/179/21. The opening words of paragraph 236 were probably taken from the contents page at C7/179/3. Both of those pages of C7/179 were therefore rather better at showing the impact of the requirements of food safety than those words of the EVJD. For the sake purely of the flow of the text, however, we decided that paragraph 235 of the EVJD and the opening words of paragraph 236 of the EVJD should be incorporated here.

[137]Paragraph 236.4 of the EVJD was about allergens, and that was a duplication given what we say in paragraph 52 above but for the sake of simplicity and coherence, we incorporate it here on the basis that that does not mean that the responsibility in relation to allergens can properly be counted twice.

[138]Paragraphs 236.1-236.3 of the EVJD were agreed and for the sake of completeness are incorporated here. Cleaning Case Numbers: 3304495/2018 & others 201

[139]Concerning cleaning, on reconsideration we were reminded that the respondent had unreasonably opposed the reference in paragraph 240 of the EVJD to Aseptopol being labelled “Very toxic to aquatic life with long lasting effects” on the basis that there was “no aquatic life in store”. Of course the warning was there to ensure that the product was used carefully and was not caused to go into the waterways if at all possible.

[140]In fact, on reconsideration, we concluded that the description in paragraphs 237-242 of the EVJD of the cleaning work which Ms Garrod did was a helpful and fair encapsulation of her responsibilities in that regard as shown by what was said on pages 13-15 and 27 of C7/142 and C7/234/3-4 (which are incorporated in this appendix via paragraph 59 above). It was also an accurate description of the work which she did in fact do and which we concluded was her work in this regard for the purposes of section 65(6) of the EqA 2010, but which should not be counted twice if and to the extent that it was a repetition of one or more parts of C7/142 and C7/234. Paragraphs 237-242 of the EVJD are incorporated here on that basis.

[141]Paragraph 247 of the EVJD was about keeping the yard clean. What we say in paragraphs 197-199 on page 369 of our second reserved judgment about the responsibilities of a customer assistant in the position of Ms Garrod in regard to keeping the yard clean is incorporated here. Pest control

[142]Pest control was the subject of paragraphs 245 and 246 of the EVJD. Those paragraphs were less informative than what was said on pages 61, 63, and 65-70 of C7/179, which, accordingly, we incorporate here instead of paragraphs 245 and 246 of the EVJD. Waste and reductions; product care and store presentation

[143]Paragraphs 248, 250 and 290-294 of the EVJD were about linked things. That is why we dealt with them in one place in our second reserved judgment (paragraphs 200- 208 on pages 370-372).

[144]We concluded on reconsideration that, given what we said in paragraphs 200-201 on page 370 of our second reserved judgment, paragraph 248 of the EVJD was apt and should be incorporated here.

[145]Contrary to what we say in paragraphs 203-207 on pages 370-371 of our second reserved judgment, we concluded on reconsideration that paragraph 250 of the EVJD should be incorporated here. That was because we could see on reconsideration that the respondent’s aim was to ensure that its shop floor, i.e. its sales and replenishment, workforce was aware of why it was important to avoid waste, so that awareness of that importance was part of the knowledge required of its staff. Case Numbers: 3304495/2018 & others 202

[146]There were vigorous disagreements between the parties about the content of paragraphs 290-294, but we did not resolve them in our second reserved judgment as such: we merely said in paragraph 202 on page 370 of our second reserved judgment that the subject-matter of paragraphs 290-294 of the EVJD was “covered by what was said at C7/188/3 and C7/656, but was also in our view self-evident and therefore for current purposes obvious”. On reconsideration we could see that there was another training document which was also applicable and was rather more helpful for the determination of some of those disputes: C7/454, which we have incorporated here via paragraph 59 above.

[147]In paragraph 202 on page 370 of our second reserved judgment, we said that we accepted what was in paragraphs 292-294 of the EVJD. On reconsideration, we could see that paragraph 292 was almost certainly based on C7/454/2. The respondent’s opposition to part of paragraph 292 was that “The part of the paragraph describing avoiding overfilling the shelf with produce is describing something that JH did not do and that, if she had done it, would defy common sense. JH was required to replenish shelves and units appropriately. JH is portraying the inappropriate conduct of a task as a task within itself (like the wording regarding not overfilling freezers).”

[148]In our view that submission missed the mark completely. In putting out produce, it was necessary to apply the training at C7/454/2, which stated the problems which would arise from overfilling, with a view to ensuring that employees such as Ms Garrod did not overfill trays on display.

[149]In any event, for the avoidance of doubt, we incorporate here paragraphs 290-294 of the EVJD.

[150]As for paragraphs 251-255 of the EVJD, the respondent opposed the heading to those paragraphs, which was “Rubbish”, on the basis that it should instead have been “Waste Packaging”. That was an unhelpful stance as the issue was what was the work of someone in the position of Ms Garrod for the purposes of section 65(6) of the EVJD in regard to the disposal of waste, and “rubbish” is not an inaccurate description of waste. In addition, waste packaging was not the only thing which needed to be disposed of. As it happened, even the respondent’s relevant training materials referred to “Rubbish” in connection with waste packaging: see paragraph 69 above. In fact, the respondent’s opposition to the term “rubbish” arose from one aspect of the respondent’s opposition to paragraph 251 of the EVJD. The respondent’s opposition to the use of the term “rubbish” was also based on the proposition that Ms Garrod did not herself do all of the things to which reference was made in paragraph 252 of the EVJD (which related to “5 types of rubbish disposal in store”).

[151]On reconsideration, we could see (as we could when writing our second reserved judgment) that the things which were the subject of paragraphs 251-253 and 255 of the EVJD were dealt with in some respects rather more clearly and effectively in C7/119 and C7/262. For example, paragraph 255 concerned the disposal of liquids, Case Numbers: 3304495/2018 & others 203 and that was dealt with clearly and authoritatively at C7/119/6. However, paragraphs 251-253 and 255 went further than the training materials, so we concluded on reconsideration that they should be incorporated here, along with C7/119 and C7/262, as should be the agreed (and plainly sensibly agreed) paragraph 254 of the EVJD. For the avoidance of doubt, if Ms Garrod did not herself do all of the things to which she referred in paragraph 252 of the EVJD, in our view she needed to know about them all, as was shown by what was said in C7/119, even though it appeared that the content of paragraph 252 was not wholly supported by the content of C7/119. Preventing trespass and theft

[152]We have (via what we say in paragraph 11 of appendix 1 on page 90 above and paragraph 7 of appendix 2 on page 102 above) incorporated C7/147/2-15, C7/135, C7/707 and C7/711. We refer to the first two of those training materials in paragraphs 209-211 on page 372 of our second reserved judgment in connection with paragraphs 257-262 of the EVJD. In the light of paragraphs 209-211 of that judgment and in the light of C7/707 and C7/711, on reconsideration we concluded that what was said in paragraphs 257-262 should, for the avoidance of doubt and for the sake of clarity, be incorporated here despite the duplication which that involved as a result of our incorporation of C7/147/2-15, C7/135, C7/707 and C7/711. That is on the basis that paragraphs 257-262 of the EVJD include helpful illustrations of the manner in which the respondent required customer assistants to do work within the meaning of section 65(6) of the EqA 2010.

[153]Given our conclusions stated in paragraphs 212 and 213 on page 372 of our second reserved judgment, we concluded that we should incorporate paragraph 263 of the EVJD here also.

[154]On reconsideration we could see that the amended proposed text of paragraph 265 of the EVJD (concerning “Electronic Article Surveillance”) was in fact agreed. That paragraph is incorporated here. Reporting of health and safety issues

[155]On reconsideration, we concluded that, while it was obvious and applied to the comparators also, it was for the sake of completeness best to acknowledge that, as was implied by paragraph 268 of the EVJD, Ms Garrod (along with all of her colleagues) had responsibilities under the Health and Safety at Work etc Act 1974. We do so here, but on the basis that the responsibility was catered for by our incorporation of C7/142 via paragraph 59 above. Fire safety

[156]Pages 17-23 of C7/142 were rather more informative than paragraph 267 of the EVJD and the latter added nothing material, so, for the avoidance of doubt, it is not incorporated here. Securicor-related responsibilities Case Numbers: 3304495/2018 & others 204

[157]The agreed paragraph 266 of the EVJD was, in contrast, material, and it is incorporated here. Customer service

[158]Given what we say in paragraphs 3-6 of appendix 1 on page 89 above, and the heading above them, paragraphs 269 and 270 of the EVJD did not need to be incorporated here.

[159]We had no objection to the inclusion of what was said in paragraphs 271-275 of the EVJD if and in so far as they sought to state things which were the result of the application of the principles in the documents to which we refer in paragraphs 3-6 of appendix 1 on page 89 above. We could also see that a willingness to look out for improvements which could be made to the store and to suggest them to the respondent’s management was, contrary to what we say in paragraph 218 on page 373 of our second reserved judgment, capable of being regarded as being part of the work of a customer assistant. We did not accept the respondent’s contentions in opposition to what was said in paragraphs 271-275 of the EVJD. On that basis, we decided that we should incorporate those paragraphs here.

[160]Our incorporation here via paragraph 7 of appendix 2 on page 102 above (read with paragraph 8 of appendix 1 on page 89 above) of the words at the end of paragraph 13 on page 35 of our second reserved judgment (relating primarily, but not only, to the mystery shopper regime) meant that paragraphs 278-280 of the EVJD were not strictly necessary. However, they were so far as relevant agreed and for the avoidance of doubt, we incorporate them here, to be read with the words at the end of paragraph 13 on page 35 of our second reserved judgment. Dealing with unhappy customers

[161]Our incorporation for the purposes of Ms Garrod’s work of paragraphs 3-6 and 10-12 of appendix 1 on pages 89 and 90 above (via the headings to those paragraphs) meant in our view that paragraphs 281-289 of the EVJD were not strictly necessary. However, they were helpful illustrations of the kinds of situation with which a customer assistant might have to deal in the course of his or her work. Accordingly, those paragraphs are a part of the factual background which we will take into account and the IEs can take into account when assessing this aspect of Ms Garrod’s work. Working conditions Heat and cold

[162]While on reconsideration we saw no reason to change what we said in paragraphs 221 and 222 on page 374 of our second reserved judgment about paragraphs 326- 328 of the EVJD, we concluded that for the sake of completeness we should incorporate the content of what appeared to be revised versions proposed by the claimants at the time of closing submissions of paragraphs 326 and 327 of the EVJD, Case Numbers: 3304495/2018 & others 205 stating the time spent by Ms Garrod in a freezer and in a chiller, but on the basis that she had, or should have had, appropriate apparel available to her to avoid her getting cold when there. What we say in paragraph 70 above applies here on the basis that C7/187 showed that if any PPE were not available (i.e. not just a freezer jacket) then a customer assistant was required to ask for it to be procured and it was the respondent’s obligation to provide it. We concluded that we should in addition formally record that working in close proximity to the ovens was bound to be warmer than normal. Unpleasant spillages

[163]We incorporate here paragraph 223 on page 374 of our second reserved judgment. Working outdoors

[164]We incorporate here paragraph 224 on page 374 of our second reserved judgment. Confined spaces

[165]We incorporate here paragraph 225 on page 375 of our second reserved judgment. Sitting and standing

[166]We incorporate here paragraphs 226-228 on page 375 of our second reserved judgment. Obligation to wear a uniform

[167]We incorporate here paragraph 229 on pages 375-376 of our second reserved judgment. Protective equipment

[168]We incorporate here paragraphs 230-232 on page 376 of our second reserved judgment. Suspicion of theft

[169]We incorporate here paragraph 236 on page 377 of our second reserved judgment. Parts of the EVJD which we did not include, the reason for which may not be obvious at first sight

[170]Paragraph 144, concerning the time spent by Ms Garrod on checkouts, was a repetition of one of the factual assertions in paragraphs 18 and 20.

[171]Paragraph 145 was unnecessary as it added nothing, being no more than a summary of what was stated in the training materials to which we refer in paragraphs 3-6 of Case Numbers: 3304495/2018 & others 206 appendix 1 on page 89 above, which is applicable here by virtue of what is said in the heading to those paragraphs. Case Numbers: 3304495/2018 & others 207 Appendix 7 The work of Mr Jones and the conditions in which he did it Introduction

[1]Paragraphs 203-209 on pages 440-441 of our second reserved judgment (relating to the manner in which Mr Jones was employed generally) are incorporated here.

[2]Paragraph 3.3 of the EVJD for Mr Jones as it stood by the time of closing submissions (to which we refer below in this appendix as “the EVJD”) is incorporated here, but read with what we say in paragraph 211 on pages 441-442 of our second reserved judgment as corrected by what we say in paragraphs 93-95 on pages 34-35 above. Protective clothing and footwear

[3]Paragraph 6.2 of the EVJD, read with what we say in paragraph 215 on page 442 of our second reserved judgment, is incorporated here. Thus, we concluded that it was relevant that Mr Jones was provided with steel capped safety boots and a high visibility waistcoat, which he was required to wear at all times while inside the DC at which he worked. In addition, gloves were available to, and recommended for, an assembler, and Mr Jones was provided with, and/or had available to him for his use, a range of work clothing (in the form of a beanie hat, polo shirt, sweatshirts, trousers, thermal underwear, a standard fleece, a heavier fleece, and shorts). Induction training

[4]Paragraph 4.7 of the EVJD (amended by us slightly textually) is incorporated here on the basis that it was typical of the induction training for becoming an assembler, namely: “The job holder underwent induction training over five days (40 hours) from 26 to 30 September 1994. The training consisted of a mix of classroom-based input, practical demonstration, supervised practice and assessment/validation.”

[5]Paragraph 4.8 of the EVJD is incorporated here but with one correction: there was an error in the record of day 2 of the training in that a Manual Pump Truck is not a Pedestrian PPT: the latter is a pedestrian powered pump truck and a manual pump truck is just that.

[6]Otherwise, the training which an assembler in the position of Mr Jones was given was for the most part at least (and for present purposes we concluded that so far as relevant it was only) recorded in the training materials to which we refer below, which stated the time which the training referred to in the materials was expected by the respondent to take, albeit with some repetition (which of course meant that there was a need for the IEs and us to avoid double-counting). Case Numbers: 3304495/2018 & others 208

[7]Since it appears that(1) all new warehouse operatives were given induction training only on assembly, and

(2) training to do other tasks such as loading was given subsequently, once they had proved themselves as assemblers, in the rest of the appendices below, we say no more about induction training. Overview of the work of Mr Jones, who worked only as an assembler

[8]Mr Jones spent all of his day on the task of assembly, of which there were overall descriptions at(1) D9/144/2-7 (“Know Your Stuff For Grocery/Non-Food Assembly – Introduction to Paperless Assembly”),

(2) D9/170/2-9 (“Know Your Stuff For Grocery/Non-Food Assembly – Assembling Paperless Assignments”), and

(3) D9/193 (the SSOW entitled: “Area: Warehouse; Activity: PBS Assembly”). Those passages of those training documents are incorporated here. The importance of reading them with care in order to obtain a clear and full overview of the work of assembly cannot be over-stated. The documents to which we refer in paragraphs 23 and 27 below contain much that is of great significance in the task of determining the demands of the work of an assembler, and there are other aspects of the work which are also of such significance, so the documents to which we refer above in this paragraph do not stand alone, but that does not detract from the importance of the content of those documents as a highly informative overview of the work of assembly.

[9]The video at D9/187 (“PBS Assembly”), all of which is relevant, is also incorporated here; the failure by the parties to refer to it (at least initially; the respondent referred us to one small part of it in paragraph 163(a) on page 26 of its application for reconsideration) as probably the best evidence of what was involved in the work of assembly in an ambient DC baffled us. D9/144 also contained a statement of what was required at the start of the day for an assembler such as Mr Jones and also how to use an AMC and its attached scanner. D9/640 went a little further in relation to the use of an AMC. That document is also incorporated here. D9/265 showed that the use of voice guidance as added in 2013 was simply a replacement for reading what was on the screen of an AMC. In the rest of this appendix and in the appendices which follow it (namely appendices 8-14), a reference to any document or part of a document, including(1) the EVJD and

(2) any document in which training is recorded or set out, is, unless otherwise indicated, to be taken as a statement that that document (or part of it) is incorporated in the appendix in question (or that appendix and any others in which it is said by us at that point to be incorporated). For the avoidance of doubt, that is the case in relation to any training material, no matter where the reference appears, including in the final parts of some of the appendices, where we say which parts of the EVJD were not incorporated in that appendix, and why. Also for the avoidance of doubt, the word “document” applies to any training video as well as to digital or hard copy documents.

[10]Paragraphs 6.5-6.7 of the EVJD added something material, but shorn of irrelevancies, i.e. as follows. ‘6.5 Before collecting his AMC, the job holder went to the I-Fob Charging Board which was located at the entry point to the warehouse, swiped his personal ID card, checked to confirm onscreen that he had been correctly identified Case Numbers: 3304495/2018 & others 209 (by name) before inserting his I-Fob into the I-Fob Charging Board until a green light appeared, indicating that his I-Fob had been activated and he could proceed to collect an AMC. The job holder was required bring his I-Fob to work every day. 6.6 The job holder then entered the warehouse floor and walked about 25 metres into the Battery Bay where available AMCs were stored, mounted on individual charging units. The job holder removed an AMC from its charging unit and checked that it was fully functioning by pressing the “enter” button on the AMC and also checking for any damage to the keyboard (e.g., buttons loose or missing, key labelling not visible due to wear/peeling off). The job holder also visually confirmed that the Scanner attached to the AMC was working properly by operating the scan reader button against any flat surface to check for a red light (taking care not to shine it in his eyes or those of his colleagues). Provided that a red light appeared, the job holder then attached a functioning AMC to one of his arms, just above wrist level. 6.7 The job holder then logged into the AMC by using the keyboard to enter his unique 4-digit Personal ID Number which he memorised. The AMC automatically recognised the job holder before displaying the home screen. If the number was entered correctly, his name appeared onscreen. The job holder checked his name was on the screen before proceeding.’

[11]The use of an I-Fob was dealt with in D9/474 (where it was called an “iFob”). We saw from what was said in the left hand column on page 2 of that document that it took only a few seconds to charge the I-Fob.

[12]The manner in which a LLOP was to be collected for assembling non-high value goods was stated in rows 7-18 at D9/620/3-4. (For the sake of convenience, unless it was clearly necessary to do so, we have referred only to that document and not also its predecessors, which were, as stated in paragraph 17.3 on page 389 of our second reserved judgment, D9/560 and D9/151. We have taken the same approach in relation to other documents which were updated from time to time.) High value goods were dealt with slightly differently, but not materially so: see rows 1-6 on D9/620/3. Row 9 on D9/620/4 referred to “the LCD continuous working screen”, which we inferred was the same screen as the one referred to at the top of D9/170/2 (which was referred to as “the Mechanical Handling Equipment Allocation Screen”). If they were not the same then (we concluded on the evidence before us) they performed the same function.

[13]Paragraph 6.14 of the EVJD seemed to us to add something (not much, it is true, but something) material. It was in these terms. “The job holder inserted his I-Fob to the Assembly Truck controls and pressed the adjacent button for 2-3 seconds before inputting the alpha numeric number of the selected Assembly Truck into his AMC. This required the job holder to scroll across the AMC screen using the left/right controls before inputting the code into Case Numbers: 3304495/2018 & others 210 the relevant field to enable the Assembly Truck to be allocated to him personally.”

[14]The MHE checks referred to at the top of page D9/170/3 and in row 14 on D9/620/4 were stated (as far as we could see) most clearly at D9/463/15.

[15]If the MHE was faulty, then the assembler had to do what was stated in row 7 on page D9/561/2. Paragraphs 6.18-6.20 of the EVJD (concerning the “defect procedures” for MHE) were relevant and are incorporated here. The obvious need to be alert to the possibility of damage to the LLOP developing while using it, which was the subject of paragraph 6.42 of the EVJD (which was in the same terms as paragraph 6.29 of the EVJDs for Mr Hornak, Mr Macko and Mr Davis), is relevant here. We refer to that obviousness in paragraph 139 on page 45 above. We did not think that paragraph 6.42 overstated the requirements of a user of MHE, but we did think that the possibility of the MHE malfunctioning as it was being used was rather low, given that it would have needed to be checked carefully before being used and defected if it was faulty, and given that the obligations of all of the respondent’s DC staff included one to pick up and dispose safely of any detritus of the sort to which paragraph 6.42 of the EVJD referred.

[16]Concerning the use of a LLOP, D9/476/3-6 stated what was required.

[17]What was a sufficient charge for the battery, as referred to on page 4 of that document, was shown by what was said in D9/475/2, and that was three bars (out of 10); so that if there were 2 or fewer bars, then Mr Jones was required to do what was referred to in paragraph 6.15(e) of the EVJD, which was to drive to the battery bay and obtain a LLOP with a fully charged battery (the manner in which it came to be provided being irrelevant, although if Mr Jones had to wait for the battery to be replaced on the current LLOP then he was idle during that period, so that he would have in effect a bonus break).

[18]The LLOP was worth (see D9/463/10) in 2012 £23,000.

[19]The agreed related part of the EVJD concerning being alert to battery damage, namely paragraph 6.237, is incorporated here, read with what we say in paragraphs 304-309 on pages 464-465 of our second reserved judgment. The related need to be alert to the possibility of battery acid spillage, dealt with in the agreed paragraphs 6.239-6.241 of the EVJD, is incorporated here read with(1) what we say in paragraphs 310-319 on pages 465-466 of our second reserved judgment and

(2) paragraph 111 of appendix 11 on page 269 below, which concerned words which were slightly different from, but to the same effect as, those of paragraphs 6.239-6.241 of the EVJD.

[20]What checks should be made of a cage (and implicitly what cages should be rejected) was dealt with most clearly in the “paper” documents before us at D9/256/5. That document was more informative than paragraphs 6.178 and 6.179 of the EVJD in relation to cages. The document was entitled “Know Your Stuff For Fresh Assembly – Product Handling and Cage Stacking”. There was no equivalent Case Numbers: 3304495/2018 & others 211 in the bundle before us for assembly in an ambient DC, and the best guidance in a document aimed specifically at an ambient DC, an example of which was on page 4 of D9/224, entitled “Know Your Stuff For Grocery/Non-Food Assembly – Cage Stacking Guidelines”, was less thorough. Plainly, there was no justification for saying that the latter’s guidelines were better evidence of what checks the respondent required to be done of cages by assemblers in an ambient DC, since the cages were the same as those used in a fresh DC.

[21]Paragraphs 6.178 and 6.179 of the EVJD (for Mr Jones) were repeated as paragraphs 6.504 and 6.505 of the EVJDs for Mr Hornak and Mr Macko and as paragraphs 6.564 and 6.565 of the EVJD for Mr Davis, and those paragraphs were agreed. Both sets of paragraphs referred to the possibility of damage to a pallet as well as damage to cage, and concluded with this sentence: “Damaged Pallets were placed to one side so that they could be collected and recycled.” Unfortunately, there was no evidence before us apart from that assertion in the EVJDs to the effect that it was part of the work of an assembler to do anything in relation to a pallet except take stock off it. Accordingly, we rejected the proposition that it was part of the work of an assembler to identify a damaged pallet and, “if appropriate ... remove [it] from use”, by “plac[ing it] to one side so that [it] could be collected and recycled”.

[22]Rows 20-78 at D9/620/4-10 in some respects added materially to the description of the work of an assembler at D9/170/2-9 and D9/144/2-7. Those documents should be read (despite the repetition in them) with what was said in paragraphs 6.26 and 6.27 of the EVJD with the claimants’ submissions accepted (and, as with the rest of this judgment wherever possible, without what we saw as unnecessary capitals), namely: “In order to complete each of his assembly assignments, Mr Jones had to drive up and down the 76 aisles across the warehouse, repeatedly stepping on and off the LLOP to select and lift units of stock from pallets positioned underneath the racking on both sides of the aisles and place them into the cages mounted on the rear facing forks. The aisles were 2.94 metres wide, which meant that two LLOPs could pass each other side by side.”

[23]The warehouse highway code referred to in row 34 at D9/620/5 was referred to in many places in the training materials, and we picked D9/463 as it showed not only the code itself but also(1) the respondent’s reasons for its use, which were stated at the top of D9/463/14, and

(2) at D9/463/19, how it was enforced. However, what was required when using MHE was the subject of a training video which was highly informative. It was D9/512, and it is incorporated here and in the following appendices. So is the video at D9/511 showing the kinds of hazard which in practice plainly did arise when driving MHE in a DC. The Pristine training video at D9/537 about “slips, trips and falls” and how to avoid them was also highly informative and is also incorporated here and below (the fact that it was made in a fresh DC notwithstanding). Case Numbers: 3304495/2018 & others 212

[24]Paragraphs 6.169-6.170 of the EVJD were about what was dealt with in row 49 on D9/620/8. Plainly, damaged items had to be rejected and reported, which is what row 49 provided for.

[25]Paragraph 6.171 of the EVJD added something material (about putting damaged items to one side), and we concluded that it should be incorporated here.

[26]Paragraph 6.176 of the EVJD added something relevant (about unpleasant leakages to which Mr Jones might be exposed) and we incorporated it (as proposed by the respondent by the time of closing submissions; the claimants simply opposed the whole of the paragraph) here. Stacking of cages and dollies

[27]The manner in which an assembler was required to stack cages, which was a particularly important part of the role of an assembler, and the demands arising from doing that work, were shown by the following passages in the documentary and video evidence before us.27.1 D9/224/2-8;

27.2 D9/543 (its title was “Cage Stacking Routines Training Video”; all of it was highly informative and made the content of D9/224 more clear than any oral evidence could have done);

27.3 despite the repetition, we incorporate here the passage from 3 minutes 26 seconds into the video at D9/187 to 5 minutes in;

27.4 D9/540, the 2017 Pristine manual handling refresher video, which applied to all of the comparators who stacked cages or pallets;

27.5 D9/538, another annual Pristine manual handling refresher video, which helped further to explain the “inside base” concept and message; the section at the end of the video was also helpful to show (albeit by reference to assembly in a fresh DC) other ways in which good lifting and moving techniques could reduce wear and tear on the body and the risk of injury; the Pristine concept of working “inside base” was helpfully stated in a written document: D9/532, which was entitled “Know Your Stuff for Unloading Condensed Walkers Cases – Drivers Unloading Condensed Walkers cases and stacking back into cages at store”; there was on page 2 of that document a “Trainer’s Note!” in the following words, after which there were highly informative diagrams showing what it meant to lift and carry “inside base”: “Review the following photographs to ensure that the trainees understand the correct way to stack into a cage using Pristine principles”;

27.6 D9/145, all three pages of which were highly informative;

27.7 D9/230, D9/227, D9/228, D9/225, D9/229, and D9/226; Case Numbers: 3304495/2018 & others 213

27.8 D9/168/2-3 (bearing in mind that part of that passage was addressed to trainers); and

27.9 paragraphs 6.93 and 6.94 of the EVJD (for the avoidance of doubt, including the words opposed by the claimants in paragraph 6.93: “As the Pallet emptied, the combination of bending down and reaching up and over to pick up Units required the adoption of increasingly awkward body positions”, which the part of the training video at D9/535 which we incorporate via paragraph 48 below showed, was not inapt, as did the part of D9/187 starting at 5 minutes 28 seconds in and lasting for 10 seconds); and

27.10 paragraph 6.139 of the EVJD, read with what we say in paragraphs 103-104 on pages 36-37 above and therefore taking into account the weights referred to in paragraph 110 on page 420 of our second reserved judgment.

[28]Dolly stacking was shown by the SSOW at D8/9 (which, despite evidently having been compiled for fresh DCs, applied also to the work of an ambient DC assembler if he or she were stacking trays on a dolly).

[29]Condensing was dealt with clearly by D9/580, which showed that managers were responsible for ensuring that “partially full cages [were] condensed prior to being loaded” and that “all condensing [was] done using the Arm Computer” as well as the other things referred to in the bullet points under the row numbered 2 on page 1 of that document. The circumstances and manner in which condensing was to be done by Mr Jones were stated in the bullet points below the row numbered 1 on that page. The procedure to be followed was stated clearly, succinctly, and apparently comprehensively, on page 2 of that document.

[30]If there was a late pick or a multi-store assignment, then it had to be dealt with slightly differently, as described in D9/223/2-4. We found the content of those pages to be a rather better statement of that aspect of the work of an assembler than paragraphs 6.128 and 6.129 of the EVJD.

[31]We concluded that the process of picking from a “breakdown pack” as described in rows 37 and 38 D9/620/6 was the same as picking from a “breakpack” location, which was described in paragraphs 6.142-6.144 of the EVJD, which described “Assembling from Breakpack Locations”.

[32]We also concluded that paragraphs 6.147-6.155 of the EVJD should be incorporated here with the second sentence of paragraph 6.154 amended by the replacement of the word “were” by “could be”, so that it was now: “They could be awkward to lift and carry and, subject to the content could weigh up to 25Kg.” Case Numbers: 3304495/2018 & others 214

[33]We concluded that paragraph 6.174 of the EVJD should be incorporated here (despite the existence of what was said in row 49 on D9/620/8, which, we could see, dealt with a parallel, but different situation). Average weights of things moved by an assembler and other physical aspects and risks arising from the moving of stock and equipment by an assembler

[34]Given that D9/189 (which was a “manual handling risk assessment” relating to “Assembling units from pallet to pallet (Grocery)”) and the document at pages 130- 132 of the bundle of documents supplied by the respondent with its application for reconsideration (which was a manual handling risk assessment for “Assembling green trays (lifting, carrying and putting down) from pallet to dolly”) were created without the current litigation in mind, we accepted the figures in them, despite the fact that their accuracy was not proved in any material way to us. We saw that in the first of those two documents, it was said on the first page that “Assemblers could be required on occasion to lift an item weighing up to 25kg from a range of heights (maximum average height 168cm) and then potentially place this weight anywhere on the pallet up to the average maximum height of 168cm.”

[35]The second document related to the process of assembly in a fresh DC, so the figures in it did not apply to the work of Mr Jones. We noted, however that on page 3 it was said that there was “a maximum tray weight setting for suppliers of 23kg.”

[36]Paragraph 3.4 of the EVJD, with words proposed by the claimants preferred by us to those of the respondent, was in our view relevant and we incorporated those words here, namely: “On each shift, the job holder was standing, leaning or walking for 100% of his working time, including when driving his Assembly Truck. Approximately 95% of his working time (around 7 hours and 20 minutes each day) was spent travelling between Assembly Aisles, lifting and carrying products from Pallets to Cages and despatching Cages to the loading Bays.” Working conditions

[37]We also concluded that the first sentence of paragraph 2.31 of the EVJD stated something relevant, but the second sentence did not. The first sentence was this: “The warehouse was a hazardous environment especially given that at any one time, there were up to 200 operatives in the warehouse driving various types of vehicular MHE weighing up to 3.9 tonnes (in the case of a High Reach FLT).”

[38]As far as the working environment for Mr Jones and the other ambient DC comparators was concerned, we concluded (in part applying our conclusion stated in paragraph 114 on page 39 above) that paragraphs 2.26-2.28 of the EVJD (for Mr Case Numbers: 3304495/2018 & others 215 Jones), mostly as proposed by the respondent but slightly amended by us, stated the following relevant things. “2.26 The temperature within the warehouse could vary significantly depending on the outside temperature. The DC was old, not insulated and often cold, especially in the winter; similarly, it could become hot inside the warehouse during periods of hot weather. Wet weather also impacted on working conditions inside the warehouse as a result of water regularly coming through holes in the roof and causing wet patches on the floor. 2.27 Whilst certain PPE was provided to mitigate the impact of the temperature, this did not eradicate the disagreeable nature of the environment. 2.28 The DC had the look and feel of a mini town particularly given the widespread use of vehicular MHE and the traffic routes. There also was constant noise arising from the industrial nature of activities.”

[39]In addition, the (single-sentence) paragraph 6.30 of the EVJD (“The maximum speed of MHE was 12.5 kph when unloaded and 9.5kph when fully loaded.”) was in our view sufficiently material to be included.

[40]The passage in D9/504 about what to do if for example an assembler came across a battery acid spillage, which we set out at the end of paragraph 101 on page 417 of our second reserved judgment, is relevant here.

[41]D9/509 (“Know Your Stuff For Mechanical Handling Equipment – Battery Safety”) is (given what we say in paragraphs 304-309 on pages 464-465 of our second reserved judgment) incorporated here.

[42]Paragraph 6.52 of the EVJD (“The AMC identified the number and size of Cages the job holder needed to complete the Assignment”) was informative and a necessary statement of the background to paragraph 6.53 of the EVJD, most of which was also relevant. We incorporate here paragraph 6.52 as it stood and the following text to replace paragraph 6.53. It is a mix of the parties’ proposed words with some minor textual alterations. “During the Relevant Period, 3 different types of cages were used. Standard (full size) cages were 1.830 metres high (before being mounted on MHE forks at which time they were 1.865 metres) had a base that measured 820mm x 685mm. From 2014, red-based slim line cages were used. They were of the same height but narrower. After 2016, (black based) slim line cages were used, and were of the same height but narrower at 820mm x 584mm. Large stores used standard (full-size) cages and convenience stores generally used slim line cages.”

[43]We concluded also that paragraphs 6.54, 6.57 and paragraph 6.61 (except for the final sentence) of the EVJD should be included here. Respectively, without that final sentence, those paragraphs were as follows. Case Numbers: 3304495/2018 & others 21643.1 “For each Assignment, whether assembling for delivery to a single store or multiple Stores, the job holder placed either up to 3 standard (blue or silver based) Cages, or up to 4 (black based) or 5 (red based) Slim Line Cages, onto the forks of his Assembly Truck.”

43.2 “All Cages were stored folded in rows (referred to as nests) (Photo T8). Having removed the selected Cages from the relevant nest, the job holder pulled on the two sides of each Cage to open the Cage before he undid the retaining strap on the base and lowered the base into position. This activity was noisy especially in the early part of the Relevant Period when Cages [with] silver metal base plates were in use (see Working Conditions at paragraphs 9.26 to 9.28 below).”

43.3 “At all times when travelling through the warehouse (prior to the completion of the Assignment), the job holder was vigilant to ensure the Cage straps were securely attached to the sides of Cages mounted on the MHE forks in an upright position to avoid the risk of accidents arising from trailing strap(s) becoming caught in other equipment.”

[44]The manner in which empty cages were to be put on the forks of a LLOP was shown by a short part of the video at D9/187: the part which started 2 minutes 19 seconds in. Thus, they were put on by being tilted and pushed onto the forks with a foot, in the manner shown there.

[45]We concluded too that it was relevant that when any kind of slim line cage was used, the final two cages were strapped together as described in D9/193 and at paragraph 6.69 of the EVJD, the latter of which was as follows. ‘The last and the penultimate Slim Line Cages placed on the Assembly Truck forks were tied together by the job holder using additional Cage straps (not those already present on the Cages) to ensure safe transit throughout the Assignment (given the increased risk of them toppling due to their particular dimensions making them “tall and thin”).’

[46]We concluded too that D9/152, concerning optimal stop locations, or where best to stop the LLOP, was relevant. That was because that document contained a detailed description of what was involved in the various scenarios to which it related. As we said in paragraph 238 on page 448 of our second reserved judgment, in the period before the AMC told the assembler what was the optimal stopping place for the LLOP, so before 23 June 2015, Mr Jones had to exercise some judgment in deciding where to park his LLOP but in doing that he had to (in our view this was an inescapable conclusion) take account of the risk of injury to himself as a result of poor placing of the LLOP.

[47]We incorporate here paragraph 6.87 of the EVJD without the reference to page 27 of “the AMC guide”, i.e. D7/2/27 (which did not seem to apply to the text of Case Numbers: 3304495/2018 & others 217 paragraph 6.87 of the EVJD and in any event added nothing material), in the following manner. “The base of each pallet, sitting at ground level, was 122 cm wide and 102 cm deep, each of which sat within its own metal racking section”.

[48]D1/3/3-4 (showing how Mr Jones was required to lift, carry and put down the stock which he was required to put on trolleys for delivery in the course of assembly) are incorporated here and in all of the following appendices. So is the training video relating to manual handling at D9/540. We also incorporate here and in the following appendices the video at D9/538 (which was evidently made in a fresh DC but the principles in which applied to all DCs) and the part of the video at D9/535 to which we refer in paragraph 27.9 above starting at 7 minutes 20 seconds in and lasting for 2 minutes 17 seconds, showing the techniques which DC staff were required to use when moving stock and pallets. Roll cages

[49]The manner in which roll cages had to be strapped was stated at D9/539. The manner in which they had to be moved was stated at D1/3/8. Those documents applied not only here but also in the following appendices wherever they were applicable. “Completing Assignments and Delivering Assembled Cages to the Loading Bay”

[50]Part 5 of the EVJD, which was paragraphs 6.202-6.230 of the EVJD, was in our view less helpful as a statement of what was involved in “Completing Assignments and Delivering Assembled Cages to the Loading Bay” than(1) the overview in rows 56-62 of D9/620 (although the first part of that series of rows applied to high value stock only),

(2) D9/170/7-8, and

(3) what we say in paragraphs 273-282 on pages 456-458 of our second reserved judgment, but with the latter read as corrected in the light of our conclusion on reconsideration stated in paragraph 112 on page 39 above. What we say in paragraphs 273-282 on pages 456-458 of our second reserved judgment states our conclusions, subject to that correction, on the paragraphs of the EVJD to which we refer in that passage.

[51]As for the rest of paragraphs 6.202-6.230 of the EVJD, we concluded on reconsideration that paragraphs 6.208 and 6.209, 6.212-6.215 and 6.223A were relevant here, but that the content of paragraphs 6.210, 6.211, 6.216, 6.217, 6.218, 6.224, and 6.226 did not need to be incorporated here given(1) what we say in the first sentence of this paragraph,

(2) our incorporation via paragraphs 48 and 49 above of D1/3/3-4 and D1/3/8,

(3) the videos to which we refer in paragraph 48 above,

(4) the training materials we incorporate via paragraph 27 above, and

(5) what we say in paragraph 68 on page 25 of our second reserved judgment. We point out here that the agreed paragraph 6.222 stated something which was obvious, and was a detail which probably did not need to be stated, although the IEs can take it into account if they regard it as being material. We state in Case Numbers: 3304495/2018 & others 218 paragraphs 74 and 75 below why we concluded that the content of paragraphs 6.220, 6.227 and 6.228 of the EVJD should not be incorporated here.

[52]On reconsideration, we concluded that the part of the video at D9/535 to which we refer in paragraph 48 above provided cause for thinking that the overall weight of products moved by an assembler might be a relevant factor, so that the content of paragraph 6.229 of the EVJD might be relevant and paragraph 281 on page 458 of our second reserved judgment might therefore not be wholly apt. In the circumstances, we concluded that what the respondent proposed for paragraph 6.229 of the EVJD (i.e. both sentences, and not just the first sentence of that paragraph, but not the reference to “page 60 of the AMC Guide”, which was at D7/2/60 and did not relate to the content of paragraph 6.229 of the EVJD) should be capable of being taken into account by the IEs and us at the final hearing. However, the figures given by the respondent in paragraph 6.229 of the EVJD were, like many of the other figures given by the respondent, open to the criticisms which we make in paragraph 61 of our reserved judgment of 12 July 2023. That made us all the more cautious about accepting the second sentence of paragraph 6.229 of the EVJD. Submissions on that sentence and on the materiality of the overall weight of products moved during a shift by an assembler can be made at the final hearing. At this stage, we were of the view that the more important questions were(1) how often a person doing the work of assembly at a reasonable speed would need to move products for example from a pallet to a cage, in other words how many per period (such as an hour) the assembler would be expected to move,

(2) what was the average weight of products so moved, and

(3) what was the maximum weight of a single product which might be moved from a pallet to a cage. Hygiene and fire risks

[53]On one level, paragraphs 6.248-6.263 of the EVJD added nothing to what was said in, or shown by, D9/449 and D9/450, both of which we now incorporate both here and in the following appendices. The whole of D9/450 was a useful statement of the requirements of the respondent imposed on Mr Jones and all of the other comparators in regard to food safety generally. D9/449 was less obviously relevant, but it was a useful set of questions, which showed the need for careful thought about the requirements stated in D9/450. It was also a helpful illustration of some of those requirements. In addition, it helped to show the training which all of the comparators will have been given on hygiene and food safety in a DC. However, in order to avoid doubt, we remind the parties of what we said in paragraphs 322-328 on pages 467-468 of our second reserved judgment, and we point out that what we said there was intended to be applicable to all of the comparators. It should not need to be stated, but we do now state that all of the comparators had the same general obligations in regard to for example cleaning and fire hazards. In regard to trip risks and the need to clean as one went along, the training video at D9/537 up to 6 minutes and 45 seconds in was clear and showed that the respondent expected all of its DC staff to pick up or stow away any trip hazard as they went along. As for pest control, that was the subject of the informative training video at D9/526, referring to “zero tolerance to pests” and how the comparators were required to act in respect of signs of pests and the risk of pests in DCs. The video Case Numbers: 3304495/2018 & others 219 was applicable to stores also in principle, but the steps to be taken in stores were necessarily different as they are not sealed, or sealable, environments. Things which are not included by us in our above statement of the work of Mr Jones on which our conclusion may not be discernible from what we say(1) in our reserved judgment of 12 July 2023,

(2) our second reserved judgment, and

(3) above in this appendix

[54]We now return to aspects of the EVJD on which we did not make a specific finding or about which we thought we needed, for the sake of clarity and completeness, to say more in these reasons. In the course of doing so, we refer to one or more parts of the training materials which we found were a better statement of the aspect of the work in question, and by doing so, given what we say in paragraph 9 above, we incorporate in this appendix those parts of the training materials.

[55]Paragraph 6.30A of the EVJD (to only part of which we referred in paragraph 219 on page 443 of our second reserved judgment) was not necessary given what was at D9/476/3.

[56]Paragraphs 6.159-6.162 of the EVJD were (apart from the issue of frequency) a repeat of row 36 on D9/620/6. Paragraph 6.163 was agreed, but it was about the impact of the pressing of the P1 button, which was not in our view an aspect of the work of an assembler. Was it relevant? It was what we might call something which was informative in a “nice to know” way rather than something which could be regarded as essential. Did it have a place in a statement of the work of an assembler for the purposes of section 65(6) of the EqA 2010? No. It did not. Paragraph 6.164 was about the same thing and, we noted, it was not agreed.

[57]Paragraph 6.165 of the EVJD consisted of three sentences. The first two were the background reasons for the need to “[investigate] unavailable stock carefully ... before selecting P1 on the AMC”. Paragraph 6.165 of the EVJD added nothing to row 36 on D9/620/6.

[58]Paragraphs 6.166-6.167 of the EVJD were a repeat of row 35 on D9/620/5.

[59]What was described in paragraph 6.168 of the EVJD, even though it was agreed as a matter of fact (on what sound evidential basis we could not see), was not part of the work of an assembler for the purposes of section 65(6) of the EqA 2010. That was for the following reasons. Reversing back up an aisle alongside other operatives was plainly unsafe, and in paragraph 6.168 it was expressly recognised that other operatives would not be expecting it. That would make it even more unsafe than ordinarily, and it was ordinarily so unsafe that it was specifically prohibited by the highway code at D9/463/14, which at the bottom of the code as set out on that page said “Never reverse picking trucks in an aisle”. So, reversing back down an aisle was not part of the work of an assembler such as Mr Jones for the purposes of section 65(6) of the EqA 2010. Case Numbers: 3304495/2018 & others 220

[60]Paragraph 6.173 of the EVJD was in our view as a matter of fact correct but it was unlikely to be material because shop floor staff were in substantially the same position as was described in the first sentence of that paragraph. The second sentence merely described the consequence of the first sentence, and added nothing material given that stores staff in the position of the claimants were in an equivalent position, although arguably they had more responsibility because what they put out on the shop floor would be found by customers to be damaged and that would affect the respondent’s customer relations directly. We therefore agreed with the claimants that only the first sentence was a statement of a relevant fact, but we concluded that it could not assist the respondent in this case because the claimants worked under the same condition.

[61]Paragraph 6.175 of the EVJD merely stated the obvious risk of injury from damaged products. We observe that the same risk was undergone by the claimants, who handled the same products.

[62]The requirement to keep stock dry and off the ground stated in paragraph 6.177 of the EVJD was stated most clearly in paragraph 3(b) on D9/449 and D9/450/5.

[63]Paragraphs 6.180-6.181 of the EVJD were a description of what was dealt with in row 39 on D9/620/6 and what was said at pages 3-15 and 3-17 of the complete “Pick by Store” AMC user guide (“AMC user guide for PBS”; we refer to it below simply as “the AMC guide”, even though it in fact referred to what the parties referred as an AMC as an “AMT”, i.e. arm-mounted terminal) which was sent to us as stated in paragraph 255 on page 452 of our second reserved judgment (at pdf pages 58 and 60 respectively of that guide). Our reasons for that conclusion are as follows.63.1 We initially thought that paragraphs 6.180-6.181 of the EVJD added something material and were helpfully succinct, but then we read paragraphs 6.182 and 6.183 of the EVJD and read again pages 3-15 and 3-17 of the AMC user guide. We then read page 3-18 of that user guide.

63.2 On page 3-17 of that guide, it was said that “[i]f neither the location number nor an OCC number can be scanned, the assembler should press the P2 key in order to manually select the location.” Further down that page, this was said. “The entry of a valid location will have the same result as the scanning of a product barcode and the AMT then instructs the assembler to pick the desired quantity. However, the fact that the location was keyed is reported to the SPH.”

63.3 The situation in which the assembler keyed in an “invalid location or OCC” was dealt with at the bottom of page 3-17. It was clear from what was said there that nothing further could be done at that time until the correct location was entered. Case Numbers: 3304495/2018 & others 221

63.4 If a location was short then that was reported to the respondent’s network by what was shown at the next page, page 3-18.

63.5 So, there was a staged procedure to be followed if there was an invalid scan. The first stage was this, stated on page 3-15 of the AMC guide, which was pdf page 58: “If an invalid location or product barcode was scanned, the AMT will beep four times and display the error on the screen. The assembler is requested to rescan.”

63.6 We noted, incidentally, that pages 3-17 and 3-18 of the AMC guide (pdf pages 60 and 61) were not included in the extracts from the AMC guide appended to the EVJDs of the comparators. In any event, this was said at the top of page 3-17. “If neither the location number nor an OCC [i.e. outer case code] number can be scanned, the assembler should press the P2 key in order to manually select the location. The following screen then appears with numbers in front of each location.”

63.7 That referred, we saw, to it not being possible to scan both the location and the OCC. We presumed from that that if one of those things was scannable then the other could be corrected. That was borne out by the possibility of having a correct product number but it not scanning because the AMC was telling the assembler that it was not in that location.

63.8 In any event, the next step was stated in the following words (on page 3-17): “The assembler should enter the number in front of the desired location.”

63.9 We understood that to mean that the product/OCC number was required to be keyed into the box by the location code for the physical place where it in fact was, but which the AMC was not accepting as the place where that product was.

63.10 The next words showed what happened next: “Another screen then appears where the assembler can key in the location selected. The OCC of the product at this location is also accepted by the AMT.”

63.11 What that meant was that the keying in of the correct location updated the SPH (which was defined at page 12/pdf page 9 of the AMC guide as the “Selector Pro Host System”) and therefore (see that page) Denver. That was shown by the next two paragraphs on page 3-17/pdf page 60 of the AMC guide, which were as follows. Case Numbers: 3304495/2018 & others 222 “The assembler may also press the ESC key in order to cancel the manual identification of the location and return to the Locations screen. The entry of a valid location will have the same result as the scanning of a product barcode and the AMT then instructs the assembler to pick the desired quantity. However, the fact that the location was keyed is reported to the SPH.”

63.12 The interconnection of the AMC with Denver via the SPH was shown by the following passage on page 1-2/pdf page 9 of the AMC user guide. “The Pick by Store System (PBS) automates and directs picking activities throughout the warehouse. PBS consists of two components that function as an integrated system by communicating to each other via a spread spectrum radio system. The specific components involved are:

• The Selector Pro Host System (SPH) that serves as the PBS communications hub and data depository. The SPH also provides the communications interface to the Warehouse Management System (DENVER).

• The Selector Assistance System (SAS) is made up of an armmounted computer (AMT) with an integrated spread spectrum radio, keyboard, display and hand mounted laser scanner. The AMT provides the assembler with assignment information, accepts and validates the assembler’s responses, displays corrective action messages, stores captured data, and sends the data via radio to the host system (SPH). Data input and validation of each pick are accomplished through laser scanning of bar codes on pick locations or products.”

63.13 Returning to how an error was in practice at least by June 2021 communicated to Denver, the entry of a valid location meant a correct entering of a location which actually existed. That could be seen from the part of page 3-17/pdf page 60 of the AMC guide which we have set out in paragraph 63.11 above).

63.14 If it was not possible to correct the errors on the system, then it was necessary to follow the process at page 3-18/pdf page 61 of the AMC guide, which was to put into the AMC the information that nothing had been picked from the location in question. That was then reported to the SPH, as could be seen from what was said at the top of that page.

63.15 In fact, the AMC guide that we had was issued in June 2021 and it may be the case that the AMC/SPH/Denver system did in the past require a personal message to a manager, who would have to tell someone else or do something to the system to correct the error. But we doubted very much that that happened. What pages 3-17 and 3-18 of the AMC guide showed was Case Numbers: 3304495/2018 & others 223 that at least in 2021 the error was required to be corrected by the assembler, and we could not see any good reason why anyone else should at any time have been required to correct the error. Who, after all, could have been in a better position to do it? How else was the error reliably to be corrected? Having someone working on the ground doing the correction, and doing it “live”, must, we thought, at all times have been the best solution for the respondent.

63.16 In any event, as far as the responsibility of an assembler was concerned for present purposes, we could see no difference between being required to report an error on the system to a manager and being required to key the correction into the AMC: the degree of responsibility was the same. But it would be best to have the factual position stated accurately. We thought that if there was a need to report to a person then it would probably have been someone who administered the SPH, and row 39 on D9/620/6 referred to reporting to “the Systems team”, not a manager. In addition, D9/634 showed that the systems team member would make the change on the SPH/Denver. That was clear because in rows 126 and 131-133 on D9/634/6-7 (the respondent’s “Grid Walking” procedure and policy),

(1) reference was made to inputting changes where there was an RTS which meant (we saw from D9/634/4) “return to supplier”, and

(2) that inputting was to be done by a “Systems Team Member”.

[64]Paragraph 6.182 of the EVJD described what was in the second indent in row 39 on page D9/620/6, but it added an assertion that the assembler would then ‘be invited to enter the number of products he had assembled, he selected “0” to inform the system that he had not assembled any’. That did not make sense, since if the AMC/SPH/Denver system had been told that the “wrong product” was “in select”, then there would be no need to key in “0”.

[65]We could not see any justification for the assertions in paragraph 6.183 of the EVJD that(1) Mr Jones or any other assembler had an obligation or need to report the situation referred to in that paragraph to a manager or

(2) the situation would be dealt with more swiftly if they did that. Even that paragraph was contradicted by the last sentence of paragraph 6.182, which referred to the assembler informing “the system that he had not assembled any”.

[66]Paragraphs 6.184-6.189 of the EVJD referred to the situation which was dealt with in rows 52-54 on D9/620/9, and we concluded that paragraphs 6.184-6.189 of the EVJD were a less accurate description of the work of an assembler described in rows 52-54 on D9/620/9 than what was stated in those rows. In saying that, we took into account the fact that row 53 was about an aspect of the work of a “Warehouse Manager” and not the assembler. We note here that it was stated in row 52 that it was for the “Warehouse manager”, not the assembler, to decide what to do if “a Unit of Delivery is full or a product protrudes outside of the Unit of Delivery.”

[67]The subject-matter of paragraphs 6.190-6.199 of the EVJD (concerning the undertaking of part-completed assignments) was dealt with in rows 28-33, 45 and Case Numbers: 3304495/2018 & others 224 52-54 of D9/620 at pages D9/620/5, D9/620/8 and D9/620/9 respectively. We therefore concluded that there was nothing material in paragraphs 6.190-6.199 of the EVJD.

[68]In fact, we saw that paragraph 6.193 was wrongly included in the EVJD in any event. That was because a part-picked assignment could not be expected to result in cages which were detached from the truck and which had to be located. Row 30 on page D9/620/5 showed that, as did what was said on D9/170/9 in the second of the two indented boxes under the heading “Logging Off (continued)”, which was this. “You will then be asked to park up your mechanical handling equipment by scanning the appropriate barcode. If you are leaving a part-picked assignment leave your destination labels on the truck. Swipe out at your shift end time.”

[69]In addition, question and answer 3 on page 11 of that document showed that (as we thought) the part-picked assignment would come with its own LLOP. The question and answer were as follows. “What will you need to change if you get a part-picked assignment midway through your shift?• My mechanical handling equipment.”

[70]We saw that all four ambient comparators said the same on this, and that no witness statement addressed it. That must have been, we concluded, because the factual assertion of the respondent about the possibility of cages being left partpicked but not on the forks of the part-picker’s LLOP was (in our view wrongly) accepted by the claimants.

[71]Paragraphs 6.197-6.199 of the EVJD would, if they had been correct factually, have been about doing the job well and not a statement of a part of the work of an assembler for the purposes of section 65(6) of the EqA 2010. However, they were in fact contrary to D9/224/8 under the heading (“Part-Picked Assignments”), which included this: “It is Important that any poor cage stacking of these part-pick assignments are identified and reported to your Team Manager. The Team Manager may request that the cage be restacked and provide coaching for the Team Member who handed over the poorly stacked ’part-pick’ assignment, with the correct cage stacking techniques.” Case Numbers: 3304495/2018 & others 225

[72]We saw that the content of paragraphs 6.197-6.199 of the EVJD was also not included in the EVJDs for the other ambient DC assemblers. In fact, we saw that what was claimed in paragraphs 6.197-6.199 of the EVJD was not specifically approved by the two managers of the respondent who referred to those paragraphs (i.e. more than by way of general statements of approval of anything done by Mr Jones which was not what most other warehouse operatives did). They were Mr Evans and Mr Matthews. Mr Evans merely confirmed (in paragraphs 451 and 452 of his witness statement, at E4/5/64-65) that it was what Mr Jones did. The same was true of what Mr Matthews said in paragraphs 145-146 of his witness statement (at E4/11/36). (The general statements of approval in those witness statements were in paragraph 398 of the witness statement of Mr Evans, at E4/5/55, and paragraph 12 of the witness statement of Mr Matthews, at E4/11/3.)

[73]We decided that paragraphs 6.200 and 6.201 of the EVJD should also not be included. That was because what was said in paragraph 6.201 in our view added nothing material, since the need for accuracy in counting units for putting into cages, and putting them into the right cages, was obvious and because the term “monotony” was best regarded as evaluative in this context. As for paragraph 6.200, which asserted that the number of units from pallets moved by Mr Jones was an average of 1,910 per shift and might be as many as 2,500, was not supported by any evidence that we could see. We point out here, however, that the nature of the work will have to be taken into account by the IEs and us when comparing its demands with those of the work of the sample claimants.

[74]We record here that we did not see any corroboration for what was said in paragraph 6.220 of the EVJD. We saw that that paragraph was agreed and that Mr Davis’ EVJD had the same thing included (as paragraph 6.606). The EVJDs for Mr Hornak and Mr Macko said something similar, but in fewer words (in paragraphs 6.545 and 6.546 respectively). We would not have expected the respondent’s digital management system to require loads to be taken to a location that was already full, but we could see that it might have happened. However, we saw no material difference between driving a LLOP to the Goods Out Office rather than the loading bay.

[75]Paragraphs 6.227 and 6.228 of the EVJD were not statements of the work of an assembler as such. Rather, they were about the application of performance indicators to the work of an assembler. For the reasons given in paragraphs 62 and 63 on page 23 of our second reserved judgment, those indicators are in our view irrelevant to the work of an assembler, although(1) we and the IEs will be taking into account at the final hearing the fact that the respondent’s business operates in a competitive market environment, and

(2) the impact of the imposition by the respondent of a performance management regime via PI rates will be relevant when considering whether or not there are one or more material factor defences to the

claims.

[76]We saw that Mr Jones did not do battery changes himself: that was clear from paragraph 6.232 of the EVJD for him. (We have of course already stated, in paragraphs 283-303 on pages 458-464 of our second reserved judgment, our Case Numbers: 3304495/2018 & others 226 conclusions on the relevance of what was said in paragraphs 6-234 to 6-235 of the EVJD.) In fact, if Mr Jones did, as stated in paragraph 6.232 of the EVJD, only take the LLOP which he was using to the battery bay “when one bar was showing”, then he was not doing what he should have been doing, which was shown by what was said at D9/475/2, which was this (and although we referred to the relevant part of page D9/475/2 in paragraph 287 on page 460 of our second reserved judgment, we did not set it out): “If the battery gauge indicates three bars or less you should get your battery changed before downloading a new assignment. If the battery gauge drops to three bars whilst you are doing an assignment you should finish that assignment and drop it at the correct Goods Out Bay before getting your battery changed.”

[77]We could not see a need to incorporate paragraph 6.21 of the EVJD (“The job holder was required to provide statements to support the investigation of any incident or accident in which he was personally involved or had otherwise witnessed.”). That was because we concluded that the implied term of trust and confidence required any employee of the respondent, including therefore the claimants, to “provide statements to support the investigation of any incident or accident in which he [or she] was personally involved or had otherwise witnessed.”

[78]We thought too that paragraph 6.22 of the EVJD (which was about managers carrying out random spot-checks to ensure that the users of MHE had carried out the required pre-use checks on the MHE which they were using) contained no material fact. That was because it is implicit that all responsibilities/duties/job tasks of an employee may be the subject of action by the employer if the responsibilities are not met, the duties are not complied with, or the job tasks are not in fact done. There was as a result a need to include here a statement about what happened in practice by way of enforcement only if the respondent did not in practice take any action when an employee failed to do the work which was claimed to fall within section 65(6) of the EqA 2010. Accordingly, paragraphs 6.22-6.24 of the EVJD said nothing material for present purposes. G94.7

[79]We record, finally, that G94.7 seemed to us to say nothing of any assistance in relation to the work of Mr Jones. Case Numbers: 3304495/2018 & others 227 Appendix 8 The work of Mr Hornak and the conditions in which he did it

Introduction

[1]Simply as a statement of the factual context, we record here that Mr Hornak worked at Thurrock DC, which is an ambient DC.

[2]Paragraphs 336-338 on page 470 of our second reserved judgment are incorporated here. Those paragraphs give an overview of the tasks done by Mr Hornak in the course of his work for the respondent. They must be read with G94.3, to which we return in paragraph 6 below. Assembly

[3]In paragraphs 340-341 on page 471 of our second reserved judgment, we referred to the proportion of time spent by Mr Hornak on assembly. On reconsideration we could see (as we say in paragraph 254 on page 70 above) that the key part of those paragraphs was the number of units moved by Mr Hornak per shift, and their weight. As we say in paragraph 254 on page 70 above, it was important to know the number of units and their likely weights for the purpose of assessing the demands of the work of an assembler, and in that regard the figures set out in paragraph 110 on page 420 of our second reserved judgment were in our view reliable. Generally, Mr Hornak’s assembly work was the same as that which was done by Mr Jones, with the result that the parts of appendix 7 above which relate to that work of Mr Jones and the conditions in which it was done, are incorporated here.

[4]As far as could see, the only parts of appendix 7 above that are not directly related to the work of assembly are paragraphs 10-13 of that appendix, at pages 204-205 above. Those paragraphs relate to the manner in which Mr Jones’ working day will typically have started and to the iFob and AMC. Those paragraphs are also incorporated here. That is on the basis that(1) we saw no good reason to conclude that Mr Hornak’s day started any differently from that of Mr Jones and

(2) Mr Hornak was required to use the same equipment as any other assembler. Loading The proportion of Mr Hornak’s time spent loading

[5]Paragraph 3.17 of the EVJD for Mr Hornak (to which we refer below in this appendix as simply “the EVJD”) is incorporated here, but read with G94.3, on which that paragraph was based. Paragraph 3.17 is, for convenience, as follows. “During the Relevant Period, the job holder was deployed on Loading and all related activities for a total of 83% of his overall working time.”

[6]In G94.3, this was said: Case Numbers: 3304495/2018 & others 228 “Across the whole of the Relevant Period, job holder was deployed as follows (overall average % plus in brackets the minimum and maximum percentage in each 12-month period) Loading – 83.7% (65.1% to 91.6%) Assembly -14.5% (6.7% to 32.6%)”

[7]That made a total of 98.2%, and there was no statement about the other 1.8% of Mr Hornak’s time, but it is at least possible that what he did in that 1.8% is irrelevant. In any event, it is necessary in the rest of this appendix to refer only to the task of loading in an ambient DC. An overview of the task of loading as done by Mr Hornak

[8]The task of loading in an ambient DC was stated in an overall way (but in some detail) at D1/3/17. We found the video at D9/525 also to be highly informative about the process of loading, including preparation by way of dekitting. (We were referred to that video in support of the claimants’ closing submissions in relation to paragraph 6.247 of the EVJD, but it was only on reconsideration that we realised how helpful a piece of evidence that video was for a number of reasons, as stated below in this appendix and in appendix 11 below.)

[9]Paragraph 3.7 of the EVJD is incorporated here. Since we were not given the page references in the bundle for the photographs referred to in that paragraph, for our own future reference and for the benefit of the IEs, those photographs are, respectively, at the following pages of the bundle:9.1 G26.1, the “Loading Truck (a LLOP with front facing forks)”: D9/0.2/40;

9.2 G39: the “ Ride-on PPT”: D9/0.2/59; and

9.3 G31: the “ Pedestrian PPT”: D9/0.2/48.

[10]The first sentence of paragraph 3.8 of the EVJD is incorporated here.

[11]Paragraph 3.9 of the EVJD is incorporated here (on the basis that the final sentence may be relevant to an assessment of the overall demands of the work of loading here).

[12]We thought (but we could not find where in the documents before us it was recorded, so this understanding might be incorrect) that the IEs were more concerned to know the maximum weight of a cage than its average weight. However, the parties had focused on average weights, as shown by what was said in paragraphs 3.10 and 6.145 of the EVJD, where it was said that the average weight was 277kg. If the key issue was the maximum weight of a cage, then that was (as we say in paragraphs 61 and 62 of our reserved judgment of 12 July 2023) Case Numbers: 3304495/2018 & others 229 not the subject of evidence before us as far as we could see. However, we saw that in paragraph 3.22 of the EVJD it was said that a cage was “heavy” if it weighed more than 400kg. More helpfully, it was said in paragraphs 6.143 and 6.144 of the EVJD that12.1 a standard cage was classified by the respondent as “heavy” if it weighed between 400kg and 499kg, which implied that the maximum weight of a standard cage was 499kg, and

12.2 the maximum weight of a slim line cage was 374kg. Preparation for loading

[13]D9/373/1-3 are incorporated here and were applicable in the case of a loader such as Mr Hornak if the loader had not already been doing assembly work (see the first sentence of paragraph 75 on page 406 of our second reserved judgment).

[14]D9/383/1-2 up to the end of the section on operating a dock leveller, are incorporated here.

[15]There was conflicting evidence about the frequency of the need to open the door of a trailer: the oral evidence of Mr Macko to which the claimants referred in their closing submissions in relation to paragraph 6.96 of the EVJD (it was on day 24, at page 40), was that he would “rarely need to open the trailer”. Column 7 on D2/3/14 required a dekitter to close “the trailer shutter” and then “the bay door”, but we saw no requirement to close the door stated at D9/379. Paragraph 6.62 of the EVJD stated that “Approximately 80% of the single deck Trailers per shift that the job holder loaded arrived closed (i.e., the roller door had not been opened).” We therefore concluded that a trailer shutter door would be closed only if the trailer were not about to be loaded. In the circumstances, we concluded that the frequency with which a loader had to open the shutter door was not determinable but that it had to be done more or less daily.

[16]We agreed with the claimants’ submission in relation to paragraphs 6.105-6.106 of the EVJD for Mr Davis (which were in part in the same terms as paragraphs 104- 105 of the EVJDs for Mr Hornak and Mr Macko), which was that Mr Davis’ oral evidence showed that it was only about once every two weeks that what was referred to in those paragraphs (removing “shrink wrapped Cages containing high value electrical Products, bought online but returned by customers, which were to be trunked from Thurrock to another Tesco DC”) needed to be done by him. We saw no reason to conclude that that frequency varied between DCs. Paragraphs 6.104-6.105 of the EVJD for Mr Hornak (i.e. as written by the respondent) are accordingly incorporated here on that basis, namely, with that frequency incorporated. The loading process; an overview Case Numbers: 3304495/2018 & others 230

[17]D9/375 is incorporated here. The part of the video at D9/525 starting 6 minutes 22 seconds in and continuing to 6 minutes 47 seconds in (showing, incidentally, that the use of the scanner on the AMC was straightforward), and the part of that video from 7 minutes 5 seconds in and continuing until 8 minutes 16 seconds in, were very informative as an overview of the process of loading.

[18]D9/374/2 is incorporated here. So is what we say in paragraphs 349-351 on page 473 of our second reserved judgment about what was described in paragraph 6.64 of the EVJD, with the following reservation. On reconsideration, we saw in the very short part of the video at D9/525 starting at 10 minutes 5 seconds in and lasting for 11 seconds that the closing of a trailer roller shutter door could, and at least in that video did, occur with no substantive gap between the trailer and the bay floor. Having heard no submissions on the impact of that part of the video, we did not alter the conclusion which we stated in paragraph 351 on page 473 of our second reserved judgment, but we did think that the video showed that at least in some cases there would be a need neither to lean nor to reach across a gap to open a trailer roller shutter door. Checking that the trailer is safe to load

[19]As part of the process of checking that the tractor has been uncoupled from the trailer by the driver or (as the case may be) the shunter, row 21 or row 22 at D9/141/6 applies here. (Those are rows 18-19 on D9/149/5 and there is just one applicable row at D9/146/3: row 12. For the sake of simplicity, reference is made only to D9/141 below, with the exception of what is said in paragraph 21 below, which we have included to further reinforce our conclusion in paragraphs 363 and 389 on pages 477 and 484 of our second reserved judgment and because in paragraph 217 on page 33 of the respondent’s application for reconsideration, it is asserted that our conclusion in this regard was not clear.)

[20]Rows 23-29 at D9/141/6-7 apply here. The subject-matter of row 24 was shown very well by the part of the video at D9/182 starting from 1 minute 30 seconds in and lasting for 30 seconds. In relation to row 27, the substance of the claimants’ proposed words for paragraph 6.215 is incorporated here, namely: For the majority of trailers, the scanner to the AMC would not read the bar code on the inner wall of the trailer, with the result that the code would have to be keyed directly into the AMC. The respondent’s own trailers had 6-digit numbers, while trailers which were provided by contractors had various mixed alpha and numeric codes.

[21]The words:21.1 “Trailers are safe and clean”, at D9/146/2, and what is said in row 19 on the following page (“Check the floor is clean and free of any debris. The floor must be cleaned before loading commences. Report to [sic] any defect to the Warehouse Manager.”); Case Numbers: 3304495/2018 & others 231

21.2 “Trailers are checked and are free of debris and safe to be used prior to loading, any defected trailers are recorded to the manager who will follow the defect process” at D9/149/2 and what is said in row 27 on page 6 of that document (“Check the floor is clean and free of any debris: [i]f the floor needs cleaning inform the warehouse manager who will arrange the cleaning staff to attend or defect the trailer [i.e. deal with the trailer on the basis that it has a defect]”); and

21.3 “Trailers are checked and are free of debris and safe to be used prior to loading, any defected trailers are recorded to the Warehouse Service Coordinator who will follow the defect process” at D9/141/2, and what is said in row 30 on page 7 of that document, which is “Check the floor is clean and free of any debris: [i]f the floor needs cleaning inform the Warehouse Service Co-ordinator who will arrange the cleaning staff to attend or defect the trailer”, are incorporated here.

[22]If the trailer was to any extent unsafe, for example because the floor or the dock leveller was wet to such an extent that there was a risk of slipping (and there was likely to be such a risk if the dock leveller was at all wet and if the floor was metal then if it was at all wet), then the loader had to either(1) make the trailer safe by eradicating the cause of the risk (such as by himself drying the dock leveller or the floor), or

(2) “report it to the Team Manager” as stated on D9/374/2 and leave the decision about what to do in order to make loading the trailer safe to that manager. (For the avoidance of any doubt, what we say in paragraphs 362, 363, 388, 389 and 397 on pages 476, 477, 484 and 486 respectively of our second reserved judgment, is applicable here. We emphasise here that the document of which we have set out an extract in paragraph 388 on page 484 of our second reserved judgment referred to the need to check that the trailer was “dry”, as well as being “clean and tidy and free of debris”.)

[23]If a trailer had curtains and those curtains had damage or a tear which was more than 2 inches in length, then (see paragraphs 399-402 on pages 486-487 of our second reserved judgment) Mr Hornak was required to report that fact to a member of the respondent’s management staff, who would decide what (if anything) to do about that damage or tear.

[24]If (as we say in paragraph 431 on page 494 of our second reserved judgment)(1) a trailer had been inadvertently omitted from the dekitting regime, or

(2) a dekitter had been called away mid-dekit, and the loader’s manager had failed to ensure that the “correct job card” had been swiped for the loader, allowing the loader to move between tasks, then the loader would be obliged to inform his manager, who would decide what to do about the need to dekit the trailer. There was insufficient evidence for us to decide reliably how often Mr Hornak dekitted trailers, but if it happened only 20% of the time (which could be inferred from what was said in paragraph 6.89 of the EVJD for Mr Pratt, which we set out in paragraph 421 on page 491 of our second reserved judgment), then it happened daily. But we could Case Numbers: 3304495/2018 & others 232 not believe that a trailer would routinely not be dekitted by the respondent’s apparently very well-run organisation. At 4 minutes 20 seconds into the video at D9/525, the team manager says that once he is told by a shunter that a trailer is in place, he allocates the job of dekitting to the next team member assigned to dekitting. In the circumstances, we concluded that the question whether to finish off the work of dekitting (which it was for Mr Hornak’s manager to decide) arose at most weekly. However, for the reasons stated in paragraph 324 on page 85 above, Mr Hornak himself actually did the work of dekitting only rarely.

[25]If Mr Hornak or any other loader were required to dekit a trailer, or finish the dekitting of the trailer, then D2/3/14 applied and is incorporated here. There was a helpful short section in the video at D9/544 showing how the cages would be removed using MHE. That section started 5 minutes 55 seconds in. What would be on the loading bay when the loader arrived

[26]Paragraph 6.118 of the EVJD (about what UODs would be at the loading bay when the loader arrived at the bay) is incorporated here. Initial planning of the load

[27]The claimants’ proposed words for paragraph 6.119-6.121 of the EVJD are incorporated here, with mostly minor textual changes made by us and a crossreference to D9/141, namely as follows.27.1 The loader first walked around the UODs to get a sense of how many he would need to level or condense, what needed shrink- wrapping, and the mix of the UODs and weights he had to load. Typically, while doing any condensing, levelling or shrink wrapping, the loader would identify the cages that he would load first in the trailer. In single decker trailers that would normally be lighter cages, and in double-decker trailers, that would normally be heavier cages.

27.2 After loading the first few rows of cages, the loader would see how many pallets or dollies there were and think about how they should be loaded.

27.3 If during the loading process, additional UODs were delivered to the loading bay, the loader would be required to load them (unless it became clear that there was no room for them on the trailer: see rows 76-78 and 81 at D9/141/12). In some cases, the job holder might have to adjust the loading order. For example if a pallet was delivered to the loading bay when the load was almost complete, the job holder might have to remove cages already loaded, so that the pallet was loaded at least 3 rows from the back of the trailer.

[28]The content of paragraphs 6.191 (with the respondent’s proposed words, as they were in accordance with our conclusion that they stated what the loader was required to do), 6.192, 6.194 and 6.195 of the EVJD is incorporated here because Case Numbers: 3304495/2018 & others 233 of the absence before us of an equivalent for ambient DCs of D9/395 (which applied to fresh DCs). D6/2/28 did not appear to relate to the content of paragraph 6.194 of the EVJD, so the words “See page 28 of the AMC Guide” are not included in that paragraph. The manner in which the movement of the stock in question had to be recorded on the AMC was shown by D9/395/3, which is incorporated here. Breaking down pallets

[29]Paragraphs 6.196-6.202 of the EVJD with essentially the words proposed by the claimants for paragraphs 6.200 and 6.202 instead of those proposed by the respondent (as accepted by the respondent in its application for reconsideration), are incorporated here, on the basis that the frequency with which there was a need to break down a pallet for delivery to a convenience store was (see paragraph 126 on page 42 above) on average once a week. The words for paragraphs 6.200 and 6.202 are accordingly as follows. The loader removed the shrink wrapping around the pallet using a safety knife (Photo G40 – at D9/0.2/60) before lifting and moving each of the individual units by hand into the correct empty cages, ensuring that all units were stacked within the cages. The job holder then attached each of the UOD labels onto the correct cages ready for loading. Depending on the weight and size of the units, each pallet would take between 15 and 60 minutes to break down. That task needed to be done by a loader on average once a week. Pending UODs

[30]Paragraphs 6.203-6.206 of the EVJD, with the substance of the respondent’s originally-proposed words for paragraph 6.203 are incorporated here. (The claimants’ proposed words for paragraph 6.203 differed only in minor textual ways). Paragraph 6.203 should be as follows. When planning his load, the loader had to navigate to and select P1 on his AMC, to check for any UODs classed as “pending”. This referred to UODs which were intended to be part of the load but, according to the system, had not been recorded as having been placed into the relevant loading bay.

[31]Rows 1-4 on page 2 of D9/629, are incorporated here. Trunked UODs

[32]Paragraphs 6.207-6.211 of the EVJD are incorporated here with the following slightly amended words of paragraph 6.209 as conceded pragmatically by the respondent in its closing submissions: The loader used the AMC to locate the relevant UOD in the OTB area and collected it so that it could be loaded. Priority cages Case Numbers: 3304495/2018 & others 234

[33]Paragraphs 6.212-6.213 of the EVJD are incorporated here, on the basis that the loader’s AMC would not permit the task of loading to continue if any UOD was identified as being required to be put on the trailer in the manner stated in those paragraphs. (D6/2/61, to which reference was made in paragraph 6.213 of the EVJD, did not relate to the content of that paragraph.) Planning the load

[34]D9/374/3-6 (concerning how to load trailers) are incorporated here (on the basis that S-Dock pallets were full pallets which were going straight to a store, as explained in D9/205 and D9/207). If clarification of any aspect of what is said on those pages is required, it may be found in the questions and answers at pages 8- 10 of D9/374.

[35]Pages 4 and 5 of D9/382 (concerning how to plan the load for a double deck trailer) are incorporated here.

[36]What we say in paragraphs 438 and 439 on page 496 of our second reserved judgment is incorporated here.

[37]What we say in paragraphs 441 to 447 on pages 496-498 of our second reserved judgment is incorporated here with the qualification that we concluded on reconsideration that, contrary to what we say at the end of paragraph 442 on page 496, we were now sure that it was not part of the work of a loader for the purposes of section 65(6) of the EqA 2010 to “consider whether the intended load might be too heavy for the intended trailer” and, if it appeared that that might be so, raise it with the loader’s line manager.

[38]What we say in paragraph 452 on page 499 of our second reserved judgment applies here. Accordingly, paragraph 6.129 of the EVJD is incorporated here, as are the agreed words of paragraph 6.130 of that EVJD which we set out in paragraph 509 on page 512 of our reserved judgment. On reconsideration we could see that it might not have been clear whether or not we had approved of the final sentence of paragraph 6.130 (“Whilst uncommon, where necessary to maximise load capacity, the job holder could also mix standard and Slim Line Cages within the same row”), although it was clear that, as we say in paragraph 452 on page 499 of our second reserved judgment, we were of the view that the sentence concerned something that was “at best of only marginal relevance”. In any event, for the sake of completeness, we accepted on reconsideration that the sentence could be taken into account by us and the IEs at the final hearing. That sentence is accordingly also incorporated here.

[39]Paragraphs 6.131-6.134 of the EVJD (read with what we say in paragraph 453 on page 499 of our second reserved judgment) are incorporated here.

[40]Paragraph 6.137 of the EVJD, read with paragraph 456 on page 500 of our second reserved judgment, is incorporated here. Case Numbers: 3304495/2018 & others 235

[41]Paragraph 6.140 of the EVJD, on reflection on reconsideration (for the reasons given in paragraph 117 on page 40 above), in our judgment said something material except that what was required was mental arithmetic, not mental mathematics. In saying that, we recognised that the respondent’s computer system could not be assumed always to have been correct.

[42]The substance of paragraph 6.142 of the EVJD as determined by us in paragraphs 462-464 on page 501 of our second reserved judgment, read with what we say in paragraph 467 on page 502 of that judgment, is applicable here, namely: It was for the loader to determine the order in which UODs were loaded on to each trailer, taking into account a number of factors including attempting to distribute weight evenly across the trailer and to avoid overloading any particular axle.

[43]Paragraph 6.146 of the EVJD was agreed, and it is incorporated here on the basis that it is just about relevant as opposed to being about something which Mr Hornak did well. The relevance arises from the fact that it was about some of the knowledge which a loader would be expected by the respondent to acquire.

[44]On reconsideration we concluded that (despite what we say in paragraphs 466-470 on pages 502-503 of our second reserved judgment) paragraphs 6.147-6.152, 6.154, and 6.157 of the EVJD, all as proposed by the claimants where the text was not agreed, should be incorporated here. Checking cage condition and if necessary re-stacking

[45]Paragraphs 6.184-6.187 of the EVJD (concerning checking the cages and their contents on arrival at the bay) are incorporated here. The task of stacking (which the loader might then be given under the description of “restacking”) is described in paragraphs 27 and 28 of appendix 7 above, at pages 208-209, and those paragraphs are incorporated here. The need to “condense”

[46]D9/378, D9/426 (on the basis that at least its core contents applied not only to condensing in fresh DCs but also in ambient DCs), D9/580 and D9/630 are incorporated here so far as relevant (some parts being applicable to fresh DCs rather than ambient DCs).

[47]Paragraph 6.167 of the EVJD is incorporated here on the factual basis stated in paragraph 471 on page 503 of our second reserved judgment and read with these words on D9/378/1: “When condensing units of delivery it is important to remember not to overload the cage, dolly or pallet, making it unsafe to load or unload.” Case Numbers: 3304495/2018 & others 236 Paragraph 6.169 of the EVJD is incorporated here.

[49]Paragraph 6.171 of the EVJD (relating to the frequency with which the loader might need to condense), read in the light of the explanation in paragraph 474 on page 504 of our second reserved judgment, is incorporated here. Multi-store loads

[50]Concerning multi-store loads, the claimants’ proposed words to replace those proposed by the respondent in paragraphs 6.172-6.174 of the EVJD were applicable here, bearing it in mind that, as stated in paragraph 6.175 of the EVJD, the circumstances described in paragraph 6.174 of the EVJD (so, those stated by us in the third of the three following subparagraphs) occurred only rarely. The claimants’ proposed words (amended slightly by us) were as follows.50.1 For multi-store loads, the AMC identified the order of store delivery. Therefore the loader would load all the UODs for the final delivery first, taking into account the guidance on weight distribution at D9/374/3-4.

50.2 The fact that UODs were grouped by store on the AMC simplified multi-store loads to some extent as the order in which UODs had to be loaded was predetermined. However the job holder also needed to load in accordance with the respondent’s loading guidelines.

50.3 If, for example, the first and third stores to be loaded in a 3-store delivery (i.e. the last and first in the delivery schedule respectively) contained only (or predominantly) heavy cages and the second store to be loaded (i.e. so that its UODs were going to be in the middle of the trailer) contained predominantly light cages, then both the optimum loading pattern and the ability to distribute the overall load weight evenly would be compromised. However, the loader would load in accordance with the correct order and the weight distribution guidelines, and seek advice from a manager if he had any concerns.

[51]Paragraphs 6.311-6.313 and 6.315-6.316 of the EVJD (also concerning the loading of trailers with deliveries for more than one store) are incorporated here. The process of scanning and loading UODs

[52]Rows 31, 33-41, and (if loading a double deck trailer, including one which had a “swan neck”) rows 44-70 and 72-75 of D9/141 are incorporated here.

[53]Paragraphs 6.216-6.218 and 6.232 of the EVJD as agreed by the parties are incorporated here with the reservation that if the forks of the loading truck were uneven then that would mean that loader would (by reason of D9/481/4) have to “tell a Warehouse Manager to let them know what is wrong with [the truck] so that they can arrange for the equipment to be marked as defective and for it to be repaired”, and the loader would then be able to get another loading truck, which it Case Numbers: 3304495/2018 & others 237 would be safe to use. As a result, we concluded that paragraph 6.217 had to be read as misleading and the work of a loader had to be regarded as being required to be done using the most appropriate MHE available, which would include a loading truck which it was safe to use. There was therefore, in our view (arrived at only on reconsideration because we had not looked at the agreed text of paragraph 6.217 when writing our second reserved judgment because there had been no reason to do so) in reality no discretion for a loader to exercise in regard to the choice of MHE.

[54]The content of paragraph 6.220 of the EVJD was rather less informative than the following sentence in row 11 of the table at D9/220: “The Loader lines up the UODs to be collected in the lane by hand prior to slowly reversing their truck back under the UODs and lifting them to the safe travel height on the forks.”

[55]Paragraphs 6.222 and 6.223 of the EVJD were in part unnecessary given rows 39 and 40 on D9/141/8, but paragraphs 6.222 and 6.223 of the EVJD are incorporated here since they added something (although on one view it was implicit and therefore already there).

[56]As we say in paragraph 505 on page 511 of our second reserved judgment, it was obvious that the movement of all UODs by a loader had to be done with care. We noted that the word “carefully” was used in the first line of row 38 on page D9/141/8, i.e. in these words: “Scan each unit of delivery label and place carefully on the loading truck”.

[57]The substance of paragraph 6.224 of the EVJD as proposed by the claimants is incorporated here. Accordingly, the loader would have to manoeuvre each cage or dolly in the first row to be loaded up to 9 metres in distance.

[58]Paragraphs 6.227, 6.232-6.237 and 6.240-6.242 of the EVJD are incorporated here.

[59]Paragraph 6.229 of the EVJD was in part a repeat of what was in row 40 on D9/141/8. What was additional was the proposition that the UOD label had to be “facing towards the rear of the Trailer”. The video at D9/525 at 7 minutes 24 seconds in showed that that was correct. With those explanations, paragraph 6.229 of the EVJD is incorporated here. The process of loading a double deck trailer

[60]D9/382 (concerning the loading of double-decker trailers) is incorporated here (as it fleshes out considerably what is said in the relevant rows of D9/141) in so far as it is not already incorporated via paragraph 35 above.

[61]Paragraphs 6.317, 6.321-6.322 and 6.324 of the EVJD apply here. Case Numbers: 3304495/2018 & others 238

[62]On reconsideration, we concluded that the content of paragraphs 6.326-6.328 of the EVJD should be incorporated here with a recognition that there was no reliable evidence about the weight of products moved per double deck load, so that the figure of 100kg in paragraph 6.328 is a guess (arrived at without any statement in the witness statements of the methodology used), and that in any event in our view the precise figure for the weights moved is of only peripheral relevance.

[63]Paragraph 6.333 of the EVJD (which was agreed) was a statement about the equipment used when loading a double deck trailer. It had to be read with paragraph 6.335 of the EVJD, to which we now turn.

[64]The first sentence of paragraph 6.335 of the EVJD was unnecessary given the description of a bay mounted scissor lift at the bottom of D9/382/1. The second sentence appeared to us to be inconsistent with what was said and shown at pages 3, 5 and 6 of D9/382, but giving the respondent the benefit of the doubt since paragraph 6.335 of the EVJD was agreed, we concluded that there might be a need to check whether the “bridge-plate” (that being the term used in D9/382 in place of “dock leveller”) was “out of the way” before moving the lift up or down by pressing a button.

[65]Paragraphs 6.338-6.339 of the EVJD are incorporated here.

[66]Paragraph 6.337 of the EVJD is incorporated here without the words “the Hydraulic Lift platform or”. That is for the reasons given in paragraph 536 on pages 518-519 of our second reserved judgment.

[67]Paragraph 6.341 of the EVJD is incorporated here without the reference to “page 94 of the AMC Guide”, not least because there was no page 94 at D6/2, but in any event as far as we could see without being referred to any potentially relevant page, there was no need to refer to any part the AMC guide in support of the content of paragraph 6.341 of the EVJD.

[68]Paragraphs 6.345, 6.347 and 6.349 of the EVJD (also without the reference to “page 94 of the AMC Guide”) are incorporated here, on the basis and to the extent that they flesh out what is said in D9/141 and D9/382.

[69]Paragraphs 6.350-6.353 of the EVJD are incorporated here but on the basis that paragraph 6.352 is a repeat of what is said in the second half of D9/382/4, so that we incorporate paragraph 6.352 purely for the sake of narrative clarity.

[70]Paragraphs 539-541 on pages 519-520 of our second reserved judgment are incorporated here.

[71]Paragraphs 6.356 and 6.358-6.362 of the EVJD are incorporated here.

[72]The short passage starting 9 minutes 50 seconds into video at D9/525 was relevant in that it showed how a bay-mounted scissor lift was used in practice. Case Numbers: 3304495/2018 & others 239

[73]On reconsideration, for the reasons given in paragraph 327 on pages 85-86 above, we concluded that what we say in paragraph 542 on page 520 of our second reserved judgment was not correct and that the potential financial or physical impact of a failure by a loader (or any other employee of the respondent) to do his or her job properly was relevant in that it was an aspect of the demands of the work for the purposes of section 65(6) of the EqA 2010. The extent to which the loader was “held accountable” as described in paragraph 6.365 of the EVJD was, however, not relevant. There was much over-egging in paragraphs 6.363-6.377 of the EVJD, and we concluded that the impact for the purposes of section 65(6) of the EqA 2010 of a failure by a loader to do his job properly was something which both could and should be assessed by taking into account(1) the factors referred to in paragraph 327 on pages 85-86 above,

(2) the obvious fact that the bigger the load, the greater would be its likely value, so that the financial impact of spilling the load of a double deck trailer would be greater than that of spilling the load of a single deck trailer, and

(3) these words at D9/382/4: “If excessive weight is placed at the front or rear of the trailer, it can have an adverse effect on the handling characteristics of the vehicle, making it difficult and dangerous to drive.” Strapping

[74]D9/615 concerning the need to have enough straps of the right sort in a trailer, is incorporated here to the extent that it refers to the work of a team member. The section of the video at D9/525 starting at 6 minutes 33 seconds in and lasting for 10 seconds was relevant and helpful here.

[75]D9/376 concerning strapping (using the “Strap 2000” process) is incorporated here. So is D1/3/19 as it is a helpful statement of the steps required to be taken in that regard. The videos at D9/186 and D9/652 were particularly helpful in showing how strapping should be done. So was the section of the video at D9/525 starting at 9 minutes 7 seconds in until 9 minutes 58 seconds. What we say in paragraphs 513- 516 on pages 513-514 of our second reserved judgment is applicable here, except that on reconsideration, we concluded that we should make it clear that we regarded what was said in paragraphs 6.247-6.251 of the EVJD as proposed by the claimants (which was consistent with the training materials to which we refer in the preceding sentences of this paragraph, whereas what the respondent proposed was not so consistent) to be relevant, and therefore capable of being taken into account by the IEs as long as the demands were not counted twice. So, if what was said in paragraph 6.247-6.251 of the EVJD as proposed by the claimants added anything as far as the IEs were concerned to what was said in D9/376 and D1/3/19 and the videos at D9/186 and D9/652, then it can be taken into account by the IEs in assessing the demands of the work.

[76]We add that on reconsideration we looked in vain for evidence in the training materials that a strap anchor was riveted rather than bolted, and we concluded (in part in the light of the video at D9/186) that what was said both at D9/376/3 and Case Numbers: 3304495/2018 & others 240 D1/3/19 about putting too much tension on a strap made clear what the obligations of a loader were, namely: “Straps should never be over-tensioned or cranked too fast as this may damage the ratchet, the strap or the trailer.” The need to shrink-wrap

[77]Paragraphs 6.253-6.258 of the EVJD (concerning shrink-wrapping; we deal with paragraph 6.259 of the EVJD in paragraph 72 on page 26 of our second reserved judgment) are incorporated here,(1) without the reference to “page 51 of the AMC Guide” in paragraph 6.254, since D6/2/51 appeared not to relate to the contents of that paragraph, and

(2) on the basis that what the claimants proposed for paragraph 6.258 stated its substance sufficiently, but with the word “firmly” retained (because we concluded on the balance of probabilities that it was apt), namely: “The loader usually started at the top and worked his way down to the bottom of the cage, bending down and reaching up as necessary, while at the same time pulling firmly to release the self-adhesive shrink wrap from the roll.” What a loader had to do if there was a sloping trailer floor

[78]What we say in the final sentence of paragraph 517 on page 514 of our second reserved judgment, suitably adapted, is (for the reasons given in that paragraph) incorporated here, namely: If the floor of a trailer ever became sloped to such an extent that it materially affected the task of loading, then the loader would be required to go to his manager and ask for the trailer to be adjusted so that its floor was again level. Missing UODs, missing UOD labels, and what to do if there was too much to put onto a trailer

[79]Paragraphs 6.264-6.273 of the EVJD are incorporated here but with the following caveats.79.1 Only the words “This search could take up to 20 minutes” of paragraph 6.267 are applicable (i.e. incorporated) at this stage. (The rest of that paragraph is capable of being relevant to a material factor defence, although the reference to “page 61 of the AMC Guide”, i.e. D6/2/21, was apparently mistaken.)

79.2 The words of paragraph 6.270 for the avoidance of doubt are to be read as including “by the Loading Co-ordinator”.

[80]We also incorporate here paragraph 6.274 of the EVJD in substance as proposed by the claimants, namely: the loader “would seek to minimise overspill by Case Numbers: 3304495/2018 & others 241 condensing UoDs if he identified that there were too many UoDs to fit onto the trailer”. We incorporate here too paragraphs 6.275 and 6.279 of the EVJD.

[81]In addition, we incorporate here paragraphs 6.276-278 of the EVJD read in the light of what we say in paragraphs 518 and 519 on page 514 of our second reserved judgment, but with a slight revision on reconsideration (relating to the possibility of driving to the desk and the journey on foot or by truck taking the same maximum length of time, given what Mr Macko said in paragraph 71 of his witness statement) and generally to fit our preferred terminology, namely as follows.81.1 In relation to any cages (or other UODs) which the loader could not then include in the load, the loader checked whether another load for the store was on the delivery despatch schedule at another time before the end of his shift. He did this by selecting “Store Summary” from the AMC options menu before entering the store number which he took from the UOD label attached to the cage.

81.2 If there was another delivery scheduled to the store during the loader’s current shift, the AMC stated the bay number for the additional scheduled delivery. The loader then walked or drove to the loading desk (which took up to a maximum of 5 minutes) to inform his manager and give him/her the details of the cages he was not able to include in his load.

81.3 The loader and the manager discussed whether it was possible to transfer those cages on to the later load rather than create overspill. Having agreed the best approach with the manager, the loader liaised (as appropriate) directly with the warehouse operative handling that later load to transfer the relevant UODs. This (referred to as a “UOD transfer”) was something which the loader did roughly twice a week.

[82]Where there was such a UOD transfer, the loader was required to follow the applicable steps in paragraph 3.14 on pages 3-97 to 3-100 (pdf pages 139-142) of the “Loader Assistance System (LAS) User’s Guide” which was sent to the parties on 2 May 2024 at the same time as the Pick by Store AMC User Guide to which we refer in paragraph 255 on page 452 of our second reserved judgment. For present purposes it is sufficient to state that there was a series of steps which needed to be followed on the loader’s AMC when any UOD was moved from the place where it was currently recorded as being on the respondent’s Denver system, and that those steps required the same attention to detail as was required when following other steps as directed by the AMC. Damaged units

[83]Paragraph 6.287 of the EVJD is incorporated here. Lighting in trailers Case Numbers: 3304495/2018 & others 242

[84]The substance of the claimants’ proposed words for paragraph 6.179 of the EVJD is incorporated here, in the following manner (both for the reasons which we state in paragraphs 606-611 on pages 534-535 of our second reserved judgment and because we saw on reconsideration that the trailer shown in the video at D9/186 had good internal lighting). Some trailers had neither internal lighting nor natural daylight. However, the loading bays had directional lighting, and the trailers were sufficiently well lit for safe loading to be carried out.

[85]We saw that at D9/382/5, there was this sentence about loading a double deck trailer which supported that conclusion. “The lift/trailer should be sufficiently well-lit for safe loading to be carried out.” The risks arising from damaged cages

[86]The claimants proposed the following words for paragraph 6.183 of the EVJD. Minor damage to the metal structure of cages could cause lacerations to a loader’s hands, despite wearing safety gloves. Because of this and the risk of finger compression injuries when manoeuvring cages, MUs and dollies into tight rows within the rear of a trailer, the loader needed to take care, particularly when loading slim line cages. However, the training video to which we refer in paragraph 68 of appendix 1 on page 99 above (D9/544, “The Journey of a Roll Cage”), where we set out some of the statements made about the need to remove stock from any damaged cage from a delivery and put it on an undamaged cage, made us treat that agreement with caution. We accepted that in practice, minor damage is likely to have been permitted to pass unnoticed, but we thought that if a cage caused a laceration then it would be regarded by the respondent as so damaged that it needed to be removed from use. As for the “risk of finger compression injuries when manoeuvring cages”, that plainly applied also to the claimants, as was demonstrated by the part of the video at C7/668 entitled “Working Safely” from 3 minutes 15 seconds in, lasting for 45 seconds, i.e. up to the point 4 minutes in. In any event, with those reservations, the claimants’ proposed words for paragraph 6.183 of the EVJD are incorporated here. Closing a trailer

[87]Rows 76-79, 81 (read in the light of row 80), 82, 84-87 and 94-95 on pages 12-14 of D9/141 are incorporated here.

[88]Paragraphs 6.288-6.292 of the EVJD are incorporated here (as they flesh out what is said in D9/141), subject in the case of paragraph 6.291 to what we say in paragraph 90 below. Case Numbers: 3304495/2018 & others 243

[89]We incorporate here what we say in paragraphs 522-524 on pages 515-516 of our second reserved judgment in relation to paragraph 6.293 of the EVJD, with which paragraphs 6.294-6.295 of the EVJD must be read, but with a recognition on reconsideration that a roller shutter door might not be maintained by the respondent and that in any event we accepted that it was likely that such a door, even if wellmaintained, would at some time or another be difficult to move. Given that recognition, we decided on reconsideration that we would resolve the dispute, and we did so by accepting the claimants’ submission, which was that doors stuck about 10% of the time (that being what the EVJD for Mr Davis was amended by the respondent to show).

[90]What we say in paragraphs 525-526 on page 516 of our second reserved judgment applies here about the risk of there being a gap of 6-8 inches between “where [the loader] was standing on the edge of the Bay and the back of the Trailer” as asserted by paragraph 6.291 of the EVJD and, as the possibility, asserted in paragraph 6.296 of the EVJD, of a leg “falling down into the gap between the edge of the Bay and the back of the Trailer”. However, on reconsideration we realised that the video at D9/525 had a section, starting at 10 minutes 5 seconds in and lasting for 11 seconds, which showed how the trailer door was closed by the loader, and it showed no gap between the trailer and the dock leveller. That may have been atypical, but certainly it showed that it was possible for the trailer to be placed in such a way that there was no substantial gap.

[91]Paragraphs 6.297, 6.300 and 6.301 of the EVJD are incorporated here.

[92]Paragraphs 6.302-6.304 of the EVJD (on the basis that they are a fair statement of the procedure required to be followed on the AMC when recording via the AMC that a trailer has been closed) are incorporated here without the reference to “page 89 of the AMC Guide”, if only because D6/2 consisted of 61 pages. If the precise steps to be followed in using the AMC become material, then they can be agreed by the parties applying the complete guide to the use of the AMC when loading, unless we correctly identified the relevant steps in paragraph 528 on page 516 of our second reserved judgment, in which case those are the steps.

[93]Paragraphs 6.306 and 6.310 of the EVJD (concerning the agreed impact of the weighbridge) are incorporated here. Parts of the EVJD the reason for whose exclusion was not obvious (or discernible from what we say in our second reserved judgment) and which are not included in the above statement of the work of loading as done by Mr Hornak, and the reasons why they are not so included

[94]We concluded that the fact that Mr Hornak loaded up to 45 cages into a singledeck trailer and up to 75 cages into a double-decked trailer was stated already, at D9/374/3, so that paragraph 3.10 of the EVJD added nothing in that regard.

[95]We did not, as the respondent queried (in paragraph 219(b) on page 34 of its application for reconsideration), overrule the parties’ agreed words in paragraph Case Numbers: 3304495/2018 & others 244 6.84 of the EVJD. What we did decide in paragraphs 393-397 on pages 484-485 of our second reserved judgment, as we thought was already clear, was that if what was described in paragraph 6.84 of the EVJD (reading it with paragraph 6.83 of the EVJD) happened (and the agreement by the parties, arrived at apparently on the basis only of the factual assertions in and in relation to that paragraph emanating from the respondent, was that it did), then it was not part of the work of a loader for the purposes of section 65(6) of the EqA 2010 to work in the way described in that paragraph.

[96]Paragraph 6.160 of the EVJD could be read only as being about how well or otherwise Mr Hornak did the job of loading.

[97]The agreed single-sentence paragraph 6.163 of the EVJD is not incorporated both because it was obvious and because it was unnecessary given our incorporation via paragraph 46 above of D9/378, the first page of which said words to the same effect.

[98]Paragraph 6.170 of the EVJD is unnecessary because of the content of D9/630, which in fact showed that paragraph 6.170 was erroneous.

[99]Paragraph 6.214 of the EVJD was unnecessary given row 20 on D9/141/6.

[100]Paragraph 6.219 of the EVJD was a repeat of what was said in column 4 on D1/3/17. So, our failure to incorporate in this appendix paragraph 6.219 of the EVJD did not mean that what was said in that paragraph was incorrect.

[101]Paragraph 6.221 of the EVJD was in part a repeat of the first sentence in row 38 on D9/141/8, and to the extent that it was not such a repeat, it stated something which was obvious but was also in our understanding irrelevant at this stage (but not necessarily irrelevant in the application of section 69 of the EqA 2010).

[102]Paragraph 6.225 of the EVJD made no sense if it was intended to refer back to paragraph 6.224 of the EVJD since the latter applied to loading the first row of cages in a trailer. In any event, the content of paragraph 6.225 was an explanation which seemed to us to add nothing relevant to the factual background.

[103]Paragraph 6.228 of the EVJD added nothing to the content of paragraph 6.227, which implied the content of paragraph 6.228.

[104]We came to the clear conclusion when writing this record of the work of a loader that what was described in paragraphs 6.280-6.282 of the EVJD was not part of the work of a loader. What we said in paragraphs 441 and 442 on page 496 of our second reserved judgment (which related to the same subject-matter, albeit stated in a different way in paragraph 6.109 of the EVJD), as expanded in paragraph 37 above, applied here. A loader could not, without the agreement of his manager, swap UODs between loads, i.e. simply because the loader and another loader agreed that that was a good idea. Case Numbers: 3304495/2018 & others 245

[105]Paragraphs 6.283-6.286 of the EVJD are related directly to paragraphs 6.280-6.282 of the EVJD, so if only for that reason they are now irrelevant. However, in so far as they describe the impact of a failure by the loader to make a mistake in the use of the AMC which the AMC did not detect, they are about something which is obvious.

[106]Paragraph 6.314 of the EVJD was a repeat of what was addressed in paragraphs 6.172-6.175, which are dealt with in paragraph 50 above.

[107]Paragraphs 6.318-6.320, 6.325, 6.329-6.331, 6.357, 6.366-6.368 and 6.370 of the EVJD were unnecessary given the content of D9/382.

[108]Paragraph 6.332 of the EVJD was unnecessary given what was said 9 minutes 50 seconds into the video at D9/525.

[109]Paragraph 6.334 of the EVJD was in part a repeat of what was said in rows 20 and 27 on D9/141/6, and was simply what had to be done every time a trailer was loaded. Otherwise, the paragraph’s content was covered by what was said at D9/382/2.

[110]Paragraph 6.336 of the EVJD was about (and only about) “[operating] the lift control to raise the Dock Leveller to the correct position (Photo T12)”. What that meant could be seen only by looking at “Photo T12”, which, after some searching, we found was at D9/0.6/14. Paragraph 6.332 of the EVJD was therefore just about pressing a button. The whole process was much more clearly and amply stated in the following sequence of words in the middle of D9/382/5. “The lift is manoeuvred down to the lower trailer deck using the down button on the lift control panel and the relevant button is held until the lift is level with, or very slightly above, the deck to be loaded. Once the button is released, the lift stops. The lift bridge-plate is lowered using the depot specific control button/mechanism until it rests on the trailer bed with sufficient overlap to allow for trailer suspension creep.”

[111]Paragraphs 6.340 and 6.348 of the EVJD were in part contrary to the passage set out by us at the end of paragraph 536 on page 519 of our second reserved judgment. The use of a Pedestrian PPT to move products will have involved only the control of that MHE, and so added nothing relevant to the content of paragraphs 6.340 and 6.348 of the EVJD. The need to balance the weight across the trailer was obvious and in any event is covered by what we say in paragraph 35 above. Case Numbers: 3304495/2018 & others 246 Appendix 9 The work of Mr Macko and the conditions in which he did it 1 Like Mr Hornak, Mr Macko worked at Thurrock DC. 2 The work which Mr Macko did was almost precisely the same as that which Mr Hornak did. It was described in the EVJD for both of them as(1) assembly,

(2) loading and

(3) dekitting. However, the last of those three things was very much the least of them, and was described almost only in passing in paragraphs 3.31 and 3.32 of the EVJDs for both of them. Paragraph 3.32 of the EVJD for both of them simply said this. “The job holder was not deployed specifically on Dekitting duties but as part of Loading, removed Cages from Trailers not already dealt with by the Dekit team (paragraph 6.94).” 3 By the time of closing submissions, the respondent accepted that Mr Macko did not do any work which could be described as “marshalling”: that was, we thought, clear from the fact that the new paragraphs 6.554A and 6.554B of Mr Hornak’s EVJD, which were under the heading “Marshalling”, were stated in the respondent’s table of submissions relating to the work of Mr Macko to have been left “intentionally ... blank”. 4 So, the work of Mr Macko was of assembly, loading and in the course of loading doing dekitting work. In regard to the latter, what we say in paragraphs 336 and 337 on page 470 of our second reserved judgment was applicable. So was what we said in paragraphs 409-431 on pages 488-494 of that judgment. 5 In those circumstances, we could not see in what way a separate analysis of the work of Mr Macko would have added anything for present purposes. 6 For the sake of completeness, we saw that G94.6 stated this. “Across the whole of the Relevant Period, job holder was deployed as follows (overall average % plus in brackets the minimum and maximum percentage in each 12-month period) Loading - 81.8% (64.6% to 91.5%) Assembly -16.3% (7.1% to 33.2%)”. Case Numbers: 3304495/2018 & others 247 Appendix 10 The work of Mr Davis and the conditions in which he did it Introduction 1 Like Mr Jones, Mr Davis worked at Magor DC. 2 G94.8, which applied to the work of Mr Davis, stated this. “Across the whole of the Relevant Period, job holder was deployed as follows (overall average % plus in brackets the minimum and maximum percentage in each 12-month period) Loading – 42% (35.7% to 50.4%) Unloading and Marshalling – 11% (4.8% to 16.1%) Assembly 44% (30.9% to 54.8%) Transfer DC (Magor Trunking Station) 1.8% (0.45% to 3.6%)”. 3 To the extent that the work which Mr Davis did was that of assembly or loading, we did not need to, and do not, describe in detail here the parts of appendices 7 and 8 above which describe that work. We do, however, for the sake of clarity and completeness, need to record that those parts are incorporated here, and that on reconsideration we (1) came to the conclusions stated in paragraphs 258-261 on pages 70-71 above about the impact of paragraphs 6.286-6.289 of the EVJD for Mr Davis, which concerned his work of loading tobacco products, and (2) in paragraph 262 on page 71 above, we made our conclusion about the impact of the possible need to look for “lost sales” cages even more clear than we thought it already was. 4 We therefore need to state in this appendix only (1) the work of unloading and marshalling which Mr Davis did, and (2) what he did when working at the Transfer DC known as Magor Trunking Station. Introduction to the section of the EVJD concerning “Unloading Trunked Goods and Marshalling” 5 Paragraph 6.384 of the EVJD for Mr Davis (to which we refer in this appendix simply as “the EVJD”) is incorporated here. It needs to be read with paragraph 6.385 of the EVJD, which is incorporated here read with what we say in paragraphs 548 and 549 on pages 521-522 of our second reserved judgment. The training materials to which we referred in those paragraphs by referring to “paragraphs 92.2, 92.3, 92.4 and 444 above [i.e. at pages 411-412 and 497 respectively of our second reserved judgment] in relation to marshalling, and in relation to trunked deliveries in paragraphs 161-163 above [i.e. on page 432 of our second reserved judgment]” are also incorporated here. Case Numbers: 3304495/2018 & others 248 6 Paragraph 6.386 of the EVJD is incorporated here. While the claimants objected to the reference to the AMC guide (it was a reference to page 96 of the AMC guide, which was D5/2/96), we found that that page, and the whole of the section of which it was the first page, was relevant. So, we incorporate here D5/2/96-102. We emphasise, however, that wherever we incorporate by reference a part of the socalled “Extracts from AMC Guides”, which were at D1/2, D2/2, D3/2, D4/2, D5/2, D6/2, D7/2 and D8/2, we incorporate only the extract from the original document in question, not the commentary added by the respondent’s representatives, or the respondent for the purposes of these proceedings. Unloading 7 Paragraphs 6.387-6.389 of the EVJD are incorporated here, with the crossreferences in paragraph 6.389 read as a cross-reference to paragraph 79 on pages 407-408 of our second reserved judgment and to D9/383, if and in so far as it is thought by the IEs to be necessary for there to be such a cross-reference. 8 Paragraphs 6.390-6.393 of the EVJD, read with what we say in paragraphs 550 and 551 on page 522 of our second reserved judgment, are incorporated here. For the avoidance of doubt, on reconsideration we concluded that what was said in paragraph 6.393 was about something additional which was relevant, and that it should therefore be regarded as being supplemented rather than replaced by the words at the top of column 4 on D1/3/16. 9 Paragraphs 6.394-6.396 of the EVJD are incorporated here. 10 Paragraph 6.397 of the EVJD read with what we say in paragraph 552 on page 522 of our second reserved judgment, is incorporated here. On reconsideration, however, we concluded that the second part of the AMC guide to which reference was made in paragraph 6.397 of the EVJD, namely the part beginning with D5/2/120, was relevant; accordingly D5/2/120-124 are incorporated here. 11 Paragraphs 6.398 of the EVJD and 6.399 of the EVJD are incorporated here. Marshalling 12 Paragraphs 6.400-6.434 of the EVJD, read with what we say in paragraphs 553-567 on pages 522-525 of our second reserved judgment, are incorporated here but with one change which, on reconsideration, we concluded it was right to make since it appeared that we had misunderstood one aspect of the work described in that part of the EVJD. That aspect was described in paragraph 6.423 of the EVJD. In paragraph 564 on page 524 of our second reserved judgment, we stated the conclusion that cages in the loading bay grid would be moved using MHE. We could now see that they would not necessarily be so moved and that they might be moved by hand, even if only to some extent. In fact, it was now clear to us that there might be a need to move UODs in part by hand when removing them from a trailer in the circumstances Case Numbers: 3304495/2018 & others 249 described in paragraph 6.428 of the EVJD, so that factor had to be borne in mind by the IEs and us when considering the work described in that paragraph of the EVJD. Working at Magor Trunk 13 Similarly, it was clear that while all UODs moved at Magor Trunk, as described in paragraphs 6.435-6.442 of the EVJD, were moved using MHE, there would be a need to move them by hand to some extent in some circumstances. However, it appeared that that would be the case only at the start or the end of the journey with them on MHE. With that caveat in mind, paragraphs 6.435-6.442 of the EVJD read with what we say in paragraphs 568-570 on page 526 of our second reserved judgment, are incorporated here. Case Numbers: 3304495/2018 & others 250 Appendix 11 The work of Mr Pratt and the conditions in which he did it Introduction 1 By way of introduction, we incorporate here paragraphs 571 and 572 on page 526 of our second reserved judgment but with the significant addition that, as stated in paragraph 136 on page 20 of the respondent’s application for reconsideration, ‘When undertaking assembly, the comparators in Fresh DCs used Pedestrian PPTs. The comparators walked alongside the truck, they did not drive in the sense of sit on it. Training document “Know Your Stuff” Manual Handling Equipment: Pedestrian Powered Pallet Truck Training Pack, 20/02/2013 at D9/465/5 provides that “[F]or most tasks you will operate the truck by walking along side of it with forks trailing” (referenced at paragraph 114, page 421, appendix 8 of the Judgment).’ An overview of the work of Mr Pratt 2 In G94.5, this was said in relation to the part of the relevant period up to 28 April 2014. “In addition to Assembly assignments, job holder undertook:

• Loading (1 part-shift)

• Dekitting (5 full shifts)

• Inside Pallets (6 part-shifts)

• Set up and Standards (2 part-shifts) As a multi skilled / trained Warehouse Operative, during this period the job holder could, at the discretion of his shift manager, have been deployed at any time on Loading (as evidenced by his deployment on 13th August 2013) as well as the other activities set out above.” 3 G94.5 continued: “Between May 2014 and the end of the relevant period, the job holder’s time was allocated as follows (% of total ‘worked’ minutes) with minimum and maximum per year shown in brackets:

• Loading (and Marshalling) - 61.01% (43.9% and 78.2%)

• Assembly - 36.80% (15.2% and 50.9%)

• Unloading – 1.06% (0.37% and 1.54%)

• Dekitting (In addition to Dekitting done when Loading) – 0.88% (0.3% and 1.4%)

• Set up and Standard – 0.25% (0.1% and 0.9%)” The structure of this appendix Case Numbers: 3304495/2018 & others 251 4 Because the EVJD for Mr Pratt dealt with the work of loading first, we do the same below, where we state our findings of fact about the work of Mr Pratt in the sequence in which they are dealt with in the EVJD for him. The place where Mr Pratt worked, his shift patterns, to whom he reported and other general aspects of his work 5 Mr Pratt worked at the respondent’s Hinckley DC. The claimants’ proposed words for paragraphs 2.22 and 2.23 of the EVJD as it stood by the time of closing submissions (in this appendix, “the EVJD”) are incorporated here. That is because we accepted those words for the reasons given by the claimants in their closing submissions. In the rest of this appendix, if we say that we accepted a party’s proposed words for something then that is because we accepted their submissions in support of those words. The claimants’ proposed words for paragraphs 2.22 and 2.23 of the EVJD were these. The noise levels arising from the industrial nature of activities were exacerbated by that created by the Refrigeration Units. There was no natural light, and there were high ceilings and a concrete floor throughout. The job holder spent approximately 70% of his time in the +1 Chamber when Loading and approximately 63% of his time there when deployed on Assembly. 6 That description, suitably adapted to the person to whom it related, was applicable to all of the respondent’s fresh DCs as far as we could see. We say that because the text in paragraphs 2.26-2.28 of the EVJD for Mr Young describing the environment of the DC at which he worked (Didcot) was so far as relevant the same as the text of paragraphs 2.22-2.23 of the EVJD for Mr Pratt. 7 Concerning Mr Pratt’s working pattern, the claimants’ proposed words for paragraph 1 of the EVJD for Mr Pratt are incorporated here. 8 Concerning the direct line management of Mr Pratt, paragraphs 5.1, 5.2, 5.4 and 5.5 of the EVJD are incorporated here. It was implicit that if Mr Pratt had any issues of the sort to which paragraph 5.3 of the EVJD referred which he could not himself resolve (in one way or another, for example by following up possibilities on his AMC), then he would have to follow them up with his line manager. Accordingly, paragraph 5.3 of the EVJD stated the obvious, but for the avoidance of doubt, it is incorporated here in the claimants’ proposed words. 9 Paragraphs 6.3 and 6.4 of the EVJD (stating what clothing and footwear which the respondent provided for Mr Pratt’s use) are incorporated here. 10 D9/474 (relating to the use of an iFob) is incorporated here. 11 Paragraphs 6.11-6.13 of the EVJD (relating to the allocation of tasks) are incorporated here. Case Numbers: 3304495/2018 & others 252 12 Paragraphs 6.9 and 6.14-6.15 of the EVJD (relating to the use of an AMC) are incorporated here. D9/640 (“Using an Arm Computer”) is incorporated here, as are pages 2 and 3 of D9/387 “Know Your Stuff Fresh Goods Out – Getting Started On Paperless Loading”. 13 Paragraph 6.19 of the EVJD (about the message facility on the AMC) is incorporated here. 14 Paragraph 6.22 of the EVJD (stating the value of the AMC, on the assumption that it is of some relevance) is incorporated here. 15 Paragraph 6.24 of the EVJD (stating the values of the MHE used by Mr Pratt, on the same basis) is incorporated here. 16 What we say in paragraph 23 of appendix 7 on page 207 above about the respondent’s DC highway code and the use of MHE is incorporated here. The work of loading in a fresh DC as done by Mr Pratt Introduction 17 What we say in paragraphs 573-574 on page 527 of our second reserved judgment is incorporated here, but with the reservation that we could see on reconsideration that in two further respects the work of a loader in a fresh DC was different from that of a loader in an ambient DC. One further difference was that a loader in a fresh DC had to do more by way of locating UODs, as was shown by (1) rows 23 and 24 on D9/146/3-4, which we incorporate via paragraph 31 below, and (2) paragraphs 6.151- 6.159 of the EVJD, which we incorporate via paragraph 43 below. Another difference was that the weights of the UODs moved would, as far as we could see, generally be lower. As far as we could see, the parties were in agreement in that regard, but whether or not they were, it was apparent from the evidence to which we refer in paragraphs 151-153 on pages 47-48 above that the weights of the UODs were generally lower in a fresh DC. 18 The words proposed by the claimants for paragraph 3.9 of the EVJD are incorporated here, on the assumption that they were intended to apply to what happened in a single, full, shift. 19 Paragraphs 3.10 and 3.11 of the EVJD are incorporated here. Mechanical handling equipment (“MHE”) 20 D9/481 (“Know Your Stuff For Mechanical Handling Equipment – Ride-On Powered Pallet Truck/Loading Truck – Training Pack”) is incorporated here. 21 Paragraphs 6.43-6.45 of the EVJD, and the claimants’ proposed words for paragraph 6.46 of the EVJD, are incorporated here. The things to test before using MHE of the Case Numbers: 3304495/2018 & others 253 sort referred to in paragraph 6.35 of the EVJD are stated in paragraph 6.38 of the EVJD. Those things were more helpfully stated at D9/251/2, to which document we return in paragraph 84 below. What was said at D9/251/2 showed that the process was prompted by the AMC when the user first logged onto it. The steps to take and the process to follow when defecting MHE at the start of a shift were informatively stated at D9/154/3, to which we also return in paragraph 84 below. We saw from row 4 on page D9/154/3 that at least in some cases, an assembler’s AMC would be obtained from the “Arm Computer box located on the top of the Picking Team Member Truck”. While there were no comparable words in D9/146, we refer to them here as we do not return below to the subject of the use of MHE. Starting the process of loading 22 The rest of D9/387 (i.e. in so far as is it not already incorporated via paragraph 12 above) is incorporated here. 23 Paragraphs 6.53-6.57 of the EVJD, with the claimants’ proposed words for 6.54, 6.55 and 6.57, are incorporated here, despite the overlap with and repetition of D/387. (We return in paragraphs 24 and 25 of appendix 13 on pages 296-297 below to the subject-matter of the first half of paragraph 6.57 of the EVJD, but what we say there is consistent with what we say here about that subject-matter.) Dekitting 24 Paragraph 431 on page 494 of our second reserved judgment (concerning when Mr Pratt might have been asked to dekit, or complete the task of dekitting, a trailer) is incorporated here. 25 As for what was involved in dekitting, columns 4-7 of D2/3/14 (“Area: Goods Out; Activity: Inside Dekit”) are incorporated here, as is paragraph 6.91 of the EVJD minus its final sentence. Paragraphs 6.472 and 6.473 of the EVJD (as cross-referred to in paragraph 6.91 of the EVJD) are incorporated here. Rows 21-29 on pages 5-6 of D9/618 (the respondent’s policy and procedure for “Dekitting Equipment Inside”), are incorporated here. 26 We read paragraph 6.92 of the EVJD as a statement that cages would already have been stacked in nests of the same sort, which was what we would have expected and is consistent with the content of column 4 on D2/3/14 and with the first bullet point of row 24 on D9/618/5. Paragraph 6.92 of the EVJD is incorporated here on that basis. 27 The description on page 3 of D9/402 (“Know Your Stuff for Fresh Goods Out – Unloading Empty Cages and Pallets”) of the ways in which a cage might be damaged is incorporated here. (The rest of the document was as far as we could see superseded by D2/3/14 and D9/618.) 28 Despite the overlap with the documents referred to in the preceding three paragraphs above, paragraphs 6.93-6.94 of the EVJD (i.e. with the respondent’s proposed Case Numbers: 3304495/2018 & others 254 words) are incorporated here. In regard to earplugs, paragraph 89 on page 411 of our second reserved judgment is incorporated here. The loading process 29 D1/3/17 (dated 18 May 2018) is incorporated here. In relation to the period before 18 May 2018, the document which preceded it, which was at page 73 of the bundle sent to us as described in paragraph 68 on page 404 of our second reserved judgment (with disclosure number TSC24346), is incorporated here. In that earlier version, the instructions were more prescriptive about how to load “using a Four Cage Loading Truck”. Presumably by the time of the later version, it was seen that it was not necessary to state the requirements in such detail. 30 Rows 9-35 and 37-39 on pages 3-5 of D9/146 (the respondent’s document stating its policy and procedure on “Paperless Loading”) are incorporated here, on the basis that those rows give a clear and coherent picture of what was the process of loading, and on the basis that parts of that picture are expanded in the following documents or parts of documents. 31 D9/393 (“Know Your Stuff For Fresh Goods Out – Loading Units Of Delivery”) is (despite some overlap with D9/146) incorporated here. “Accessing the Trailer” 32 The first page and the first two sections of the second page of D9/385 (“Know Your Stuff for Fresh Goods Out – Bay Door Equipment”) are incorporated here, read with paragraphs 6.58-6.60 of the EVJD. 33 Paragraphs 6.61-6.68, and 6.70-6.72 of the EVJD, with the claimants’ proposed words for paragraph 6.64 but with the reservation expressed by us in paragraph 90 of appendix 8 on pages 238-239 above, and (given what we say in paragraphs 357-359 on pages 475-476 of our second reserved judgment, relating to paragraph 6.72 of the EVJD for Mr Hornak, which was in precisely the same terms as paragraph 6.72 of the EVJD for Mr Pratt) with the claimants’ proposed words for paragraph 6.72, are incorporated here. “Assessing Trailer Conditions” 34 Paragraphs 6.73-6.74 of the EVJD are incorporated here, despite the resulting repetition of the relevant parts of the documents referred to in paragraphs 30 and 31 above. 35 Paragraphs 6.82-6.84 of the EVJD, read with rows 3 and 4 on page 3 of D9/615 (the respondent’s policy and procedure on “Control of Trailer Straps”), are incorporated here, also despite such repetition. So, on the same basis, are paragraphs 6.85-6.86 of the EVJD but with the claimants’ proposed words for paragraph 6.85. Case Numbers: 3304495/2018 & others 255 36 Paragraph 389 on page 484 of our second reserved judgment (which had to be read with the preceding paragraphs 364-388), is incorporated here. So are paragraphs 168-170 on page 51 above. So are paragraphs 6.79-6.81 of the EVJD, (which, we noted on reconsideration, were entirely consistent with, and supported, our conclusion stated in paragraph 389 on page 484 of our second reserved judgment). “Identifying UODs using [the] AMC” 37 Paragraph 6.136 in (see paragraph 587 on page 529 of our second reserved judgment) the claimants’ proposed words, and paragraphs 6.137-6.138 of the EVJD (i.e., on reconsideration we concluded that the respondent’s proposed words for those two paragraphs were better than those of the claimants, after all, and that the references to the pages of D1/2 were helpful, apart from the reference to D1/2/27, which was not evidence but, rather, comment), are incorporated here. “Travelling to Chambers/Aisles” 38 Paragraphs 6.139 and 6.140 of the EVJD are incorporated here. “Using the Fast Action Roller Shutter Door” 39 Paragraph 6.141 of the EVJD, read with paragraph 588 on page 530 of the EVJD, is incorporated here. 40 Paragraphs 6.142-6.143 and 6.145-6.146 and 6.148 of the EVJD are incorporated here. Paragraph 6.147 of the EVJD, added nothing to what was said in the final bullet point and the box below it on D9/234/5, which we incorporate here. (We referred to that document in paragraph 17.8 on page 389 of our second reserved judgment and subsequently in a number of other places in that judgment. We return to it in paragraph 87 below because it was nominally about assembly in a fresh DC.) 41 Paragraph 44 on page 399 of our second reserved judgment and paragraph 589 on page 530 of that judgment, are incorporated here. Paragraph 6.150 of the EVJD for Mr Pratt: the impact of moving between the +1 and the +12 chambers 42 Paragraph 590 on page 530 of our second reserved judgment is incorporated here, but we add by way of clarification on reconsideration that the IEs will not be deciding “the impact of the need to move between a +1 chamber and +12 chamber”: rather, they will be assessing the demands of the work of a fresh DC loader and in doing so taking into account the impact on the loader of moving between the two chambers. “Locating, Checking and Scanning UODs” 43 Paragraphs 6.151-6.159 of the EVJD with the respondent’s proposed references to the extracts from the AMC guide at D1/2 included as, contrary to the claimants’ submissions, they showed something relevant, are incorporated here. Case Numbers: 3304495/2018 & others 256 “Transferring UODs to loading Bay” 44 Paragraphs 6.162, 6.164, 6.165, 6.168 and 6.169 of the EVJD are incorporated here. The section of the training video at D9/525 from 8 minutes 17 seconds in to 9 minutes 7 seconds is incorporated here. Paragraphs 593-598 on pages 531-533 of our second reserved judgment are incorporated here. What we say (consistently with those paragraphs of our second reserved judgment) in paragraph 53 of appendix 8 on page 232 above is applicable here to paragraph 6.163 of the EVJD. In place of paragraphs 6.166 and 6.167 of the EVJD, the video at D9/511 (which is incorporated here via paragraph 23 of appendix 7 on page 207 above) applies here. Dealing with Danish trollies with flowers on them 45 Paragraphs 6.170-6.173 and 6.175 of the EVJD, read with what we say in paragraph 599 on page 533 of our second reserved judgment, are incorporated here, but we add that on reconsideration, we thought that the content of paragraphs 6.171-6.173 and 6.175 was helpful in so far as it stated why a loader had to take particular care when moving Danish trollies with flowers on them. Condensing 46 Page 1 of D9/580, the respondent’s “Condensing Units of Delivery” policy and procedure, is incorporated here. D9/386 (to which we refer in paragraph 73 on page 406 of our second reserved judgment; its title is “Know Your Stuff For Fresh Goods Out – Condensing Units Of Delivery”) is incorporated here. So, despite the repetition, is D9/426 (“Know Your Stuff For Fresh Goods Out (Podium) – Condensing Units Of Delivery”). As for the procedure to follow, rows 1-14 on page 2 of D9/580 are incorporated here. 47 What we say in paragraphs 577-582 on pages 527-528 of our second reserved judgment about paragraphs 6.104 and 6.218-6.227 of the EVJD, is incorporated here, read with what we say in paragraphs 157-162 on pages 48-49 above. For the avoidance of doubt, we understood the claimants not to object to the first sentence of paragraph 6.222, but on reconsideration we could see that it was necessary to state that while, technically, that first sentence was correct, it was a description of what was involved in the stacking of a cage (since in condensing, it would probably be necessary to restack one of the two cages which are being condensed). That task of stacking was the subject of D9/256 and the video at D9/543, which we incorporate via paragraph 102.4 below. Paragraph 6.222 in any event stated something which was on one view obvious: of course condensing will have “involved ... bending, reaching, lifting and carrying Units and Trays”, although it was not at all clear that it will, as asserted in that paragraph, “often” have involved lifting them “up to head height”. In any event, assuming that the IEs find that text to be a helpful reminder that in order to condense stock from, say, two cages into one, the loader will have had to bend, reach, lift and carry for example boxes of products, and that when putting them at the top of a cage then they might have been up to head height, then they can take it into account. The claimants’ objection to paragraph 6.222 of the EVJD related to Case Numbers: 3304495/2018 & others 257 the proposition that “The average weight of a Packaged Unit within a Cage UOD was approximately 4.5kg.” That was because of the absence of a proper evidential underpinning for that figure, as we say in paragraph 61 of our reserved judgment of 12 July 2023. We were in the circumstances bound to agree with the claimants in that regard, although we did see that there appeared (from what was said in paragraph 5 on page 9 of the letter at G382 to which we refer in paragraph 153 on page 48 above) to be some justification for saying that the average weight of a packaged unit was about 4.5kg. 48 It was, as far as we could see (as we indicate at the end of paragraph 17 above), agreed that the typical weight of a packaged unit in a cage was less in a fresh DC than in an ambient DC, and the manner in which a cage would be filled in an ambient DC could be seen at D9/256/4. However, we doubted that the average weight of a packaged unit in any particular DC or type of DC would be of assistance to the IEs in assessing the demands arising from condensing, although the minimum and maximum weights might be of some assistance. If that was right then this dispute was about something that was not directly relevant. In any event, the effort and skill involved in condensing (in both an ambient DC and a fresh DC) will, we thought, be clear from the video at D9/543. Addressing over-height cages 49 Paragraph 6.160 of the EVJD in the claimants’ proposed words (see paragraphs 591- 592 on pages 530-531 of our second reserved judgment) and the rather obvious text of paragraph 6.161 of the EVJD, are incorporated here. We observe that if there was an over-height cage, then it had probably not been stacked as planned by the respondent’s computer systems. That could be seen from the extract from D9/218 which we set out in paragraph 154 on page 48 above, so that it was at least possible that the cage could have been re-stacked. Nevertheless, that work would not have been materially different from putting the products taking the cage above its maximum height into a different cage. Load planning 50 Paragraph 6.98 of the EVJD, read with what we say in paragraph 576 on page 527 of our second reserved judgment, is incorporated here. 51 Paragraph 6.99 of the EVJD in the claimants’ proposed words is incorporated here. 52 Paragraphs 6.100-6.138 of the EVJD were in many respects contested by the claimants on the basis that they were either irrelevant or an exaggeration, or both. In some cases they were also contested on the basis that they consisted in part of a repetition. In some respects, it was said that the content was in any event factually wrong. The claimants relied heavily in their responses on some of the training materials to which we refer above: in particular D9/393 and D9/146. In addition, the claimants relied on the video at D9/525. We agreed with the claimants (consistently with what we say in paragraph 586 on page 529 of our second reserved judgment) if and in so far as they submitted that paragraphs 6.100 and 6.118-6.135 of the EVJD Case Numbers: 3304495/2018 & others 258 added either little or nothing material to the factual situation as shown by D9/393 and D9/146. We add, however, that by the time of reconsidering our second reserved judgment, we had come to an understanding that the weight of a cage (including its contents) was stated on its label, either specifically or as a statement that the cage was “light”, “medium”, or heavy”. That was because of this text on D9/382/4: “All units of delivery have a weight guide, which you will see on the unit of delivery’s label. This will support you in identifying the difference between a heavy and light unit of delivery.” In addition, as we record in paragraph 154 on page 48 above, it was clear that in an ambient DC a cage would arrive at the loading bay with “UOD labels affixed to them by the Assembler categorising the cage as light, medium or heavy”. As a result, we concluded that paragraph 6.124 of the EVJD was misleading in so far as it asserted that it was necessary for a loader to assess the weight of a cage by reference its contents. Having said those things, on reconsideration we came to the following specific findings of fact about paragraphs 6.100-6.138 of the EVJD (on the basis that if we make no reference to one of those paragraphs then it is not incorporated here). That was to ensure that the full picture so far as relevant could be seen by the IEs and us at the final hearing. 53 Paragraph 6.100 is incorporated here with the claimants’ proposed words. 54 Read in the light of what we say in paragraphs 148-155 on pages 47-48 above, the content of paragraph 6.101 of the EVJD was, contrary to the claimants’ submissions, of some assistance as part of the factual background. It is therefore incorporated here in the terms proposed by the respondent by the time of closing submissions, namely as set out in paragraph 148 on page 47 above, but read with paragraphs 149-155 on pages 47-48 above, where, among other things, we determine the parties’ dispute about the content of paragraph 6.123 of the EVJD as far as we concluded we should. 55 Paragraph 6.105 of the EVJD is incorporated here (it was in fact a repeat of the substance of row 38 on D9/146/5). 56 Paragraphs 6.106-6.116 of the EVJD with paragraph 6.108 in the claimants’ proposed words and with paragraph 6.113 read alongside what we say in paragraph 583 on page 529 of our second reserved judgment, are incorporated here. In regard to paragraph 6.108, it was relevant for the reasons that we state in paragraph 92 on page 34 above that at page 131 of the bundle of documents accompanying the respondent’s application for reconsideration, it was said that “The average tray weight, including the weight of the plastic tray, is 8.21kg.” We make the following comments with a view to avoiding double-counting of the demands of the work in question here. While we agreed with the claimants that the respondent required a pallet to be placed always in the middle of a trailer, the relevant training materials (D9/393/5 and the first bullet point of row 27 at D9/146/4) did not say that it had to be in the middle laterally. However, paragraph 57 of the witness statement of Mr Yates (at E4/23.1/12) showed that he trained Mr Pratt to put other UODs on either side of a pallet, so that supported what the claimants said should be the wording for paragraph 6.113 of the EVJD. But of course if there were several pallets then they would probably have needed to be placed in the same row. We saw that in paragraph 58 of Case Numbers: 3304495/2018 & others 259 Mr Yates’ witness statement he said that he had not trained Mr Pratt to do what was described in paragraph 6.114 of the EVJD but that “no one would know if he was doing it that way as it is up to him to be satisfied that it is secure and safe to be transported.” Given what was said in the middle of D9/393/5 under the heading “Load Security”, the only conclusion to which we could come here was that (1) Mr Pratt, like any other loader, had to load the trailer so that the load was secure, as described on that page and the following one, D9/393/6, and (2) that could be achieved in a number of ways, as indicated by what was said at D9/393/4-5 and paragraphs 6.111- 6.135 of the EVJD, read with what we say in paragraphs 584-586 on page 529 of our second reserved judgment. Loading UODs 57 Paragraphs 6.177-6.178 of the EVJD are incorporated here. So is paragraph 6.180 of the EVJD, which we concluded was more than (as claimed by the claimants) “Analysis/evaluation/comment”. However, paragraph 6.180 has to be read with paragraphs 600-601 on page 533 of our second reserved judgment, read in turn with paragraph 167 on pages 50-51 above. Strapping the load 58 Paragraphs 6.199 and 6.201 of the EVJD, read with

58.1 pages 5-6 of D9/393,

58.2 the videos at D9/186 and D9/652, and

58.3 D9/392 (“Know Your Stuff For Fresh Goods Out – Loading Units Of Delivery – Securing A Load Using The Strap 2000 System”), are incorporated here. 59 What we say in paragraph 76 of appendix 8 on page 235 above about how straps should be tightened, which must of course be read in the light of the videos at D9/186 and D9/652, is incorporated here in place of paragraphs 6.200 and 6.202 of the EVJD. 60 Paragraphs 6.204-6.205 of the EVJD (relating to strapping in a trailer, which was not full, of the final row of cages, which would consist of ‘“light” 4-sided Cages only’), are incorporated here. Shrink-wrapping of cages 61 Paragraphs 6.206-6.207 of the EVJD, read with paragraph 616 on page 536 of our second reserved judgment, are incorporated here. Bulkhead doors Case Numbers: 3304495/2018 & others 260 62 The SSOWs entitled “Area: Goods Out/Driver Operations; Activity: Lowering, Moving & Lifting Bulkhead Doors”, at D1/3/5, and “Area: Goods Out; Activity: Lifting Bulkhead Doors”, at D9/656, are incorporated here. The video at D9/192 was also informative about working with bulkhead doors and it too is incorporated here. So is the section of the video at D9/525 concerning loading from 6 minutes 47 seconds in to 7 minutes 4 seconds in. 63 The content of paragraphs 6.208-6.215 of the EVJD was in part to the same effect as paragraphs 6.99-6.108 of the EVJD for Mr Todd, although rather different words were used in those passages and the EVJD for Mr Todd went a little further. It should be unnecessary to say it, but we point out that the bulkhead doors will not have differed according to the loader moving them. Only when we again (during reconsideration) focused on Mr Todd’s work did we realise to what extent the content of both paragraphs 6.100-6.108 of the EVJD for him and paragraphs 6.208-6.215 of the EVJD for Pratt were problematic. Given that there were additional things asserted in the EVJD for Mr Todd, we have considered the substance of both passages in the EVJDs in appendix 12 below (in paragraphs 9-25 on pages 274-278 below). Setting the chamber temperature 64 Paragraphs 6.216 and 6.217 of the EVJD, were inaccurate for the reasons stated in paragraph 619 on page 537 of our second reserved judgment, and unnecessary given what was said in the middle of the page on D9/393/3. That passage on D9/393/3 is instead incorporated here. Overspill 65 Paragraphs 6.228, 6.229 in the claimants’ proposed words, 6.231, 6.232 in the claimants’ proposed words, 6.233 and 6.234 of the EVJD are incorporated here. Multiple loads going to a single store 66 Paragraphs 6.236-6.237 of the EVJD, read with paragraphs 633-639 on pages 540- 542 of our second reserved judgment, are incorporated here. Loading multi-store trailers 67 The detail in paragraphs 6.258-6.277 of the EVJD, which were all under the above heading, seemed to us to be unnecessary. What did need to be taken into account by the IEs and us was that if, say, a load on a trailer was going to two large stores, then the process of loading would involve utilising two extra bulkheads. The respondent’s approach here was to be as specific about each step as possible, without making it clear that (as we state in paragraph 644 on page 543 of our second reserved judgment, for the reasons given there) the whole process was driven by commands on the AMC. With that significant reservation, given what we say in paragraph 643 on page 542 of our second reserved judgment, and in paragraph 647 on the next page of that judgment (where we meant to refer to paragraphs 6.258- 6.271 of the EVJD, not paragraphs 6.238-6.271), paragraphs 6.258-6.271 of the Case Numbers: 3304495/2018 & others 261 EVJD (with the claimants’ proposed words for paragraph 6.264), excluding (1) the second sentence of paragraph 6.260, (2) the whole of paragraph 6.265, and (3) the second sentence of paragraph 6.268, are incorporated here. For the avoidance of doubt, we concluded on reconsideration that, contrary to what we said in paragraph 647 on page 543 of our second reserved judgment, paragraph 6.266 of the EVJD and the second half of paragraph 6.271 of the EVJD (starting “but also”) were helpful contextual factual assertions which we accepted and concluded should be taken into account by the IEs and us. Loading UODs with bananas on them in a +1 trailer (or part of a trailer) 68 Paragraphs 6.272-6.277 of the EVJD went into considerable detail about the above task. The heading to those paragraphs was “Shrouds / Shrink Wrapping”, but all of the paragraphs were only about loading UODs with bananas on them in a +1 trailer (or part of a trailer). We concluded (as we say in paragraph 648 on pages 543-544 of our second reserved judgment) that D9/389 (“Know Your Stuff For Fresh Goods Out – Loading Shrouded Cages For Express Stores”) was applicable here, despite its title, i.e. its stated limitation to express stores. We saw that there was a reference in row 28 on page 4 of D9/146 to “the Shrouds Policy and Procedure (Fresh Only)”, but that there was no such document in the bundle before us. The use of shrouds in a +1 chamber in a trailer going to an express store 69 However, on reconsideration we were reminded that D9/389 did not even mention bananas. We saw that at D9/389/1, there was this informative statement: “To make loading Express deliveries easier, shrouds are fitted to all plus 12 units of delivery so they can be loaded at I+°C.” The diagram on page 2 of D9/389 was informative, but so was the text on that page, showing that the process was driven by the AMC. There was no mention in the EVJD (i.e. for Mr Pratt) of shrouding except of bananas. That was in our view an omission, and we concluded that D9/389 should be incorporated not only as an adjunct to paragraphs 6.272-6.277 of the EVJD, all of which paragraphs we incorporate here. For the avoidance of doubt, on reconsideration we found the content of those paragraphs all to be relevant; the only part that was opposed was the final part of 6.273, which was, we concluded, an informative statement about the need to ensure that the shroud was properly installed. Paperless alarms 70 D9/356 (“Know Your Stuff For Fresh Goods Out (Podium) – Dealing with Paperless Alarms”) is incorporated here for the reason stated in paragraph 74 on page 406 of our second reserved judgment. Late cages 71 Rows 1-5 on page 2 of D9/629 (the respondent’s “Late Cages” policy and procedure) are incorporated here. Case Numbers: 3304495/2018 & others 262 AMC software guidance illustrating some aspects of the work of loading in a fresh DC 72 D9/429, entitled “Know Your Stuff For Fresh Goods Out – Loading And Marshalling Units of Delivery”, relating to a change in the software used on AMCs which helped with loading UODs intended to be delivered to different stores, is incorporated here to show how that software change applied. This document and the ones to which we refer in the next three paragraphs below helped us to see the extent to which, and the manner in which, the work of a loader was driven by the AMC. They also helped us to see the need to know what steps to take in various situations, and D9/429 helped us to see extent to which the process of using an AMC was intertwined with the respondent’s PI regime. The latter will be relevant at the MFD hearing now listed to start in March 2026. 73 D9/395 (“Know Your Stuff For Fresh Goods Out – Moving Products Between And Removing Products From A Unit Of Delivery”) is incorporated here. 74 D9/391 (“Know Your Stuff For Fresh Goods Out – Loading Units Of Delivery – Screen Sequence”) is incorporated here. 75 D9/427(“Know Your Stuff For Fresh Goods Out – Loading Units Of Delivery – Other Activities Menu”) is incorporated here. Closing and sealing single deck trailers 76 Paragraphs 6.238-6.241 of the EVJD, read with paragraphs 640-642 on page 542 of our second reserved judgment, are incorporated here. On reconsideration, we could see that D9/390 was directly applicable to the circumstances described in those paragraphs, not least because of the overlap with the pages of the AMC guide which were at pages 77, 78 and 83 of D1/2, to which reference was made in paragraphs 6.238 and 6.241 of the EVJD. (While the words at the top of the box on page 83 of D1/2 were “Load Not Complete” and the words immediately above the middle box on D9/390/1 were “Locations for Store”, the contents of those two boxes were the same.) Accordingly, paragraphs 6.238-6.241 of the EVJD must be read with D9/390 as well. 77 The agreed paragraphs 6.242-6.247 and 6.249-6.257 of the EVJD are incorporated here, despite (1) the doubts that we had for the reason given in paragraph 90 of appendix 8 on pages 238-239 above about the need for there to be a 6-8 inch gap between the bay floor and the trailer door, and (2) the existence of the clear and logical statement of the necessary steps at D9/393/7-8 and the resultant repetition. There was, we concluded, enough relevant additional material in those paragraphs of the EVJD to justify them being incorporated here, subject to those doubts. 78 The content of paragraph 6.248 of the EVJD was, we realised on reconsideration, very strong evidence supporting the correctness of our conclusion stated in paragraph 389 on page 484 of our second reserved judgment, which we incorporate in this appendix via paragraph 36 above. We asked ourselves whether paragraph Case Numbers: 3304495/2018 & others 263 6.248 of the EVJD was otherwise a relevant statement of fact and we were driven to the conclusion that it was not. Loading a double deck trailer 79 D9/421 (“Know Your Stuff For Fresh Goods Out – Loading Double Decker Trailers Using A Bay Mounted Scissor Lift”) is incorporated here, read with what we say in paragraphs 649-651 on page 544 of our second reserved judgment. (We noted that in the EVJDs, the trailer was referred to as a “double deck trailer” and that in D9/421 it was referred to as a “double decker trailer”. We decided on reconsideration to use the EVJD term.) 80 In addition, on reconsideration we concluded that, despite (1) some overlap and therefore repetition, (2) the fact that the precise placement of UODs did not seem to us to be relevant, and (3) the fact that we had already considered and stated in some detail our conclusions on loading a double deck trailer in an ambient DC (we do that in paragraphs 60-73 of appendix 8 on pages 233-235 above), the following parts of the EVJD should be (and therefore are) incorporated here:

80.1 paragraph 6.278;

80.2 paragraphs 6.279 and 6.280 in the words proposed by the claimants;

80.3 paragraphs 6.281-6.284 (despite the claimants’ opposition to paragraphs 6.282 and 6.283, but with the reservation that it appeared that paragraph 6.282 was incorrect, given that this was said at D9/421/4: “You should start with the +12 units of delivery (including any merchandising units), before loading the top deck; this will ensure that the heavier cages are positioned on the bottom deck.”);

80.4 the final sentence of paragraph 6.285 read with (1) the section of D9/421/4 from the heading “Weight Distribution” to the bottom of that page, (2) row 54 at D9/146/7, and (3) the blue box at the bottom of the middle of D1/3/18, which document on reconsideration we realised was relevant and applicable here because it added something material to what was in D9/146 and D9/421;

80.5 the first sentence of paragraph 6.286 and paragraph 6.287 with the word “heavy” replaced as proposed by the respondent by “lighter”, but read in the light of what is said in the documents to which we refer in the preceding subparagraph above and on the basis that what was said in the second half of D9/421/4 appeared to be sufficient to state the requirements of this aspect of the work;

80.6 paragraph 6.290;

80.7 paragraph 6.291; the reference to the page of the AMC guide at D1/2/84 was relevant; it added something to D9/395, which we have incorporated via paragraph 73 above; Case Numbers: 3304495/2018 & others 264

80.8 paragraphs 6.292, 6.293 with the reservation we state in paragraph 64 of appendix 8 on page 234 above about the need to check that the “bridge-plate” was “out of the way”, and 6.294 with the reference in paragraph 6.294 to the AMC guide at D1/2/94-95 included as it was material; the lift controls were shown on D9/421/3; the photograph of a lift control “unit” at Hinckley referred to in paragraph 6.294 as “H23” was at D9/0.4/29 and was of the same sort as in the photograph on D9/421/3;

80.9 row 45 on page D9/146/6 showed when it would be necessary to key in “the trailer number/reference”; paragraph 6.295 of the EVJD is incorporated here but read as in effect corrected by what was in row 45;

80.10 paragraphs 6.296-6.298 subject to the significant reservation that paragraphs 6.297-6.298 were wrong in that they were contrary to these words towards the top of D9/421/5: “Pallet and picking trucks can be used to carefully position units of delivery onto the scissor lift, however only pedestrian pallet trucks can be used to load onto the trailer itself, and even then only on the lower trailer deck”; those words were the same as those at D9/382/5, which we set out at the end of paragraph 536 on page 519 of our second reserved judgment;

80.11 paragraph 6.299 on the basis that (1) the speed at which the lift was raised or lowered was almost certainly set by the lift; that was borne out by the first part of column 5 on D1/3/18; and (2) there had to be sufficient light, for the reasons which we give in paragraph 82 below;

80.12 paragraph 6.304 up to “correct position”;

80.13 paragraph 6.301, was arguable inconsistent with these words in column 5 on D1/3/18: “The lift bridge-plate is lowered using the DC specific control button/ mechanism until it rests on the trailer bed with sufficient overlap to allow for trailer suspension creep”; however, since paragraph 6.301 was agreed and it was possible that there was a realistic possibility of an “incline arising inadvertently”, we incorporate it here;

80.14 paragraph 6.305 read with the reservation that the lift speed was not variable except (as stated most clearly in box 7 on D1/3/18) in an emergency, when it went at “creep speed”;

80.15 paragraphs 6.306-6.307 and 6.309-6.311, despite the overlap with D9/421, D1/3/18 and D9/146; and

80.16 paragraphs 6.312-6.315, given that the final three paragraphs in that sequence explained why the role of the loader was at that point limited (so that, rather than being, as submitted by the claimants, irrelevant and/or comment and/or analysis and/or evaluation, a relevant fact could be gleaned from them). Case Numbers: 3304495/2018 & others 265 Conditions in which working inside trailers was carried out 81 Paragraphs 6.184-6.186 of the EVJD (concerning the physically confined space and the temperature in the trailer and in the DC’s chamber), read with paragraphs 604 and 605 on page 534 of our second reserved judgment, are incorporated here. 82 Paragraphs 6.187, 6.188, 6.190 and 6.191 of the EVJD (concerning lighting) read with paragraphs 606-611 on pages 534-535 of our second reserved judgment are incorporated here, so, on a limited basis and subject to the conclusion stated in paragraph 611 on page 535 of that judgment. We add that we accepted that at 3 minutes 40 seconds into the training video at D9/537, the Pristine trainer referred to the fact that the trailer which he was in was dark, but that did not alter our view that it was necessary for the respondent to take reasonable steps to ensure that trailers were sufficiently well lit to be safe. That view was reinforced by the factors to which we refer in paragraphs 84 and 85 of appendix 8 on page 237 above, namely (1) that the trailer shown in the video at D9/186 had good internal lighting and (2) that it was said at D9/382/5 that “The lift/trailer should be sufficiently well-lit for safe loading to be carried out.” Those words were also on D9/421/5 and in column 4 on D1/3/18. 83 Paragraphs 6.192-6.193 of the EVJD (concerning tight tolerances), read with paragraphs 612-614 on pages 535-536 of our second reserved judgment, are incorporated here. Risk of lacerations 84 Paragraph 615 on page 536 of our second reserved judgment is incorporated here, but read (see paragraph 263 on pages 71-72 above) with what we say in paragraph 86 of appendix 8 on page 238 above. Assembly in a fresh DC as shown by the work of Mr Pratt Overview 85 As an overview without the unnecessary and inaccurate word “continuous” in it, paragraph 6.332 of the EVJD was accurate. There, were, however, in the hearing bundle (1) three rather informative documents (not including in this sentence the word “video” in the definition of a document) containing what were in our view accurate statements of much of the work of assembly in a fresh DC which were a better starting-place here, and (2) a video which we thought was probably the best evidence possible of at least some aspects of the work of assembly in a fresh DC. The first of those documents was D9/251 entitled “Know Your Stuff For Fresh Assembly – Paperless Assembly in Stockless Depots”. We referred to it in paragraph 17.11 on page 390 of our second reserved judgment. In the next subparagraph of that judgment, 17.12, we referred to the second document: D9/154, which was the respondent’s policy and procedure for “Paperless Assembly in [a] Stockless Distribution Centre”. On reconsideration we again (see paragraph 907 on pages 607- 608 of our second reserved judgment) tried unsuccessfully to find any reference to the first of those documents in the closing submissions of either party on the work of Case Numbers: 3304495/2018 & others 266 Mr Pratt. We also tried unsuccessfully to find in those closing submissions a reference to D9/154. 86 There was a possibility that the reference to “Assembly Paperless Assignments” in the row for training given to Mr Pratt on 29 April 2010 in paragraph 4.16 of the EVJD was a reference to a predecessor to D9/251 or D9/154, but that simple, short reference was of no assistance to us or the IEs. The fact that neither party had focused expressly on the content of D9/251 and D9/154 was in our view unfortunate. That was because in our view, if those documents had been the focus of the discussions between the parties about the work of a fresh DC assembler, then the parties might well have been able to agree at least most of what the work of assembly in a fresh DC involved for the purposes of section 65(6) of the EqA 2010. In any event, those documents (D9/154 and D9/251) are incorporated here, and the IEs are encouraged to read them with care as the first part of their analysis of the work of assembly in a fresh DC. 87 For the avoidance of doubt, D9/251 was (as we say in paragraph 907 on page 607 of our second reserved judgment) repeated at D9/252. D9/252 also did not show up on a search of the parties’ submissions. Also, D9/575, the predecessor to D9/154, to which we refer in paragraph 17.12 on page 390 of our second reserved judgment, was not referred to by either party in its closing submissions. 88 The document at D9/234 (“Know Your Stuff for Fresh Assembly – Introduction to Assembly in Stockless Depots”), to which we refer in paragraph 40 above, was also highly informative. That is the third of the three documents to which we refer in the second sentence of paragraph 85 above. It too received no mention in either party’s closing submissions (and there was also no reference in those submissions to the duplicate at D9/246). It is possible that training of the same sort as the training given in D9/234 was referred to in the row in paragraph 4.16 of the EVJD recording the training given to Mr Pratt on 29 April 2010, where there was a record of him having received training on “Introduction to Paperless Assembly”. In any event, D9/234 is also incorporated here and should be read by the IEs at this point. 89 We were not referred by anyone to the video at D9/181 (“PBL Assembly”), but it was plainly relevant and helpful for us and the IEs in showing what was involved in the work of an assembler in a fresh DC. That is the video to which we refer in the second sentence of paragraph 85 above. There was another video in the bundle which was informative, but in a different way. That was D9/513, showing in particular how not to do the work of an assembler in a fresh DC. Again, neither party referred us to that video in their closing submissions. 90 We refer to D1/3/15 (which was part of the series of documents at D/1/3 which were stated to be applicable to the work of Mr Pratt) in paragraph 17.10 on pages 389-390 of our second reserved judgment. That document was an SSOW dated “10/04/18” with the title “Area: Warehouse; Activity: PBL Assembly”. That too was a helpful document. Neither party referred to it in closing submissions. Case Numbers: 3304495/2018 & others 267 91 Paragraph 6.333 of the EVJD in the claimants’ proposed words added something material and it is therefore incorporated here, but read with what we say in paragraph 657 on page 545 of our second reserved judgment, which we incorporate here also, subject to what we say in the next two paragraphs below. Use of the Pedestrian PPT 92 The Pedestrian PPT was clearly shown by the photograph at D9/0.2/48, to which we refer in paragraph 873 on page 600 of our second reserved judgment, and the use of a Pedestrian PPT was the subject of the detailed guidance in D9/465, to which we refer in paragraph 114 on page 421 of that judgment. What we say in paragraph 658 on page 546 of our second reserved judgment about paragraph 6.334 of the EVJD was, on reconsideration, in our view not wholly apt, if only because the weight of the products on the Pedestrian PPT was likely to affect its manoeuvrability (possibly only slightly, though) and therefore the demands of the work of a fresh DC assembler. So, on reconsideration, we concluded that we should incorporate paragraph 6.334 as proposed by the respondent here on the basis that the parties may wish to make submissions at the final hearing on its impact. 93 Paragraphs 6.337 and 6.338 of the EVJD were in part apt. Paragraph 6.337 was apt, we found, given the video at D9/513, but paragraph 6.338 was not wholly apt, given that at one point in that video the trainer is shown walking with one hand on the Pedestrian PPT and simply looking ahead, with the Pedestrian PPT trailing behind him without any sign of a need for the trainer to look back. The same thing was shown in the final part of D9/181, from 2 minutes 56 seconds in to the end, 10 seconds later. That part of the video also showed that the assembler would need from time to time to use some skill and care when turning a corner or going through a restricted area, but the assembler in that video did not look back when guiding the Pedestrian PPT between some parallel bars. In any event, the video at D9/513 showed that while there was some exaggeration in paragraph 6.338 of the EVJD, there was a need to be vigilant while moving a Pedestrian PPT with a view to avoiding the kinds of collision referred to in that paragraph. We return in paragraph 96 below to the issue of whether it was necessary to twist one’s body when guiding a Pedestrian PPT. Assignment allocation 94 As stated in paragraphs 660-662 on page 546 of our second reserved judgment, we could not see that the precise proportion of time spent in the two chambers (+1 and +12) could be known. Paragraph 6.340 of the EVJD is nevertheless incorporated here (with, we concluded, the figure of 63% and not 75% in it), but it must be read with paragraphs 660-662 on page 546 of that judgment. Voice-guided assembly: paragraphs 6.341-6.344 of the EVJD 95 Paragraphs 6.341-6.344 of the EVJD, read with paragraph 663 on page 546 of our second reserved judgment, are incorporated here. The cross-reference in paragraph 6.342 to “page 117 of the AMC Guide”, i.e. D1/2/117, was of little evidential weight Case Numbers: 3304495/2018 & others 268 here, but we acknowledge that there were on D1/2/117 three examples of statements in words of what the AMC would say if the voice-guiding function were used. (There were in fact many pages of D1/2 which showed what the AMC would say if the voiceguiding function were used.) Collecting pallets and related matters: paragraphs 6.345-6.354 of the EVJD 96 On reconsideration, we agreed with the respondent that there might occasionally be a need to twist one’s body when checking the movement of the Pedestrian PPT, but we concluded that the respondent was exaggerating that need somewhat in paragraph 6.345 of the EVJD (and paragraph 6.377 which was a simple and unnecessary repetition of paragraph 6.345), given (1) (most obviously) the video at D9/181, (2) the passage from D9/465 which we set out in paragraph 114 on page 421 of our second reserved judgment, (3) the picture of an operative moving a Pedestrian PPT at D9/465/5,

(4) the text on the right hand side of that page under the heading “Steering”, and

(5) these words in the box under column 1 on D1/3/15: “Assemblers must always look in the direction of travel when operating MHE.” In addition, we do not incorporate here the reference in paragraph 6.345 of the EVJD to “page 118 of the AMC Guide”. That page (D1/2/118) contained only assertions inserted by whoever compiled D1/2. If there was a need to incorporate any documentary evidence here, then D9/251/3 was the best evidence of the AMC screen referred to in the first sentence of paragraph 6.345 of the EVJD. By the time of closing submissions, the respondent had accepted that the Pedestrian PPT was guided through the roller shutter door. In addition, as we say in paragraph 191 on page 55 above, it was wrong to say, as it was said in paragraph 6.345 of the EVJD for Mr Pratt, that it was necessary to pull an empty Pedestrian PPT, i.e. a pedestrian powered pallet truck. With all of those qualifications and clarifications, paragraph 6.345 of the EVJD is incorporated here. 97 Paragraph 6.346 of the EVJD is incorporated here, on the basis that while it was obvious that care was needed when putting the forks of a Pedestrian PPT under a pallet, it did no harm for the “carefully” word to be included. 98 Paragraphs 6.347 and 6.348 of the EVJD contained statements which seemed to us to be less informative than the contents of rows 16-25 at D9/154/3-4. However, the photographs referred to in paragraph 6.347 as H16.1, H16.2, H16.3 and H17.1, H17.2 and H17.3 (those photographs were in fact at D9/0.4/18-23) were helpful, and if one read paragraphs 6.347-6.348 of the EVJD as descriptions of those photographs (which is what they were), then they were of some assistance. Those paragraphs and photographs are accordingly incorporated here. Paragraphs 6.349- 6.351 of the EVJD were informative as they stood, and they are accordingly incorporated here. Paragraph 6.354 of the EVJD was plainly informative, so we incorporated it here too. Paragraph 6.353 asserted that the assembler would have to find “the OCC Code on the label” of one of the “Units” on the pallet. That was puzzling in the light of the description at D9/234/9 of the “Outer Case Label” and how it would be “attached to the outside of each case or tray delivered”. The claimants’ proposed words for paragraph 6.353 of the EVJD avoided that difficulty, so those words for that paragraph, but with the reference to “pages 122 and 123 of the AMC Case Numbers: 3304495/2018 & others 269 Guide”, i.e. pages at D1/2/122-123, included (since those pages were, we found, helpful and relevant), are incorporated here. Unit count; incorrect product type; and “Full Pallet Assignments and Breakdown” 99 Paragraphs 6.355-6.366 of the EVJD, read with what we say in paragraphs 666-668 on pages 547-548 of our second reserved judgment, are incorporated here. For the avoidance of doubt, we accepted the respondent’s proposed words for paragraph 6.358 and that D1/2/120-121 were material. Multi-product pallets 100 On reconsideration, we thought that the content of paragraphs 6.367-6.372 of the EVJD was a slight exaggeration of the difficulty of assembling (or picking) from a multi-product pallet. We say that because rows 23-25 on D9/154/4 and the content of pages 10-12 of D9/251 in our view showed that the process was more straightforward than as stated in paragraphs 6.367-6.372 of the EVJD. However, we decided that we should in this regard give the respondent the benefit of the doubt, so we incorporated paragraphs 6.367-6.372 of the EVJD here, but on the basis that they had to be read with (1) the training materials to which we refer in the preceding sentence above and (2) what we say in paragraphs 669-671 on page 548 of our second reserved judgment but amended in the following manner. On reconsideration, we accepted that (1) D1/2/122 was a little more than marginally illuminating for present purposes, and (2) it was of some assistance in assessing the demands of the work of assembly in a fresh DC “to know precisely how the job of an assembler was done when there were multi-product pallets”. The process of assembly 101 However, when we looked again at paragraphs 6.373-6.468 of the EVJD, we thought that there was quite a lot of repetition, both internally, i.e. among those paragraphs, and of parts of paragraphs 6.332-6.372 of the EVJD. What had happened was, we thought, that the respondent had separated out various parts of the tasks involved in doing what the respondent called “assembly” and made them out to be important in themselves, when they were best seen as part of the sequence of tasks shown most clearly by D9/154, D9/234 and D9/251 and fleshed out by the video at D9/181. Indeed, we wondered whether the inclusion of all of the detail had resulted in an obscuring of the reality of what was involved in the carrying out of the task of assembly in a fresh DC. These were things which we did not see when writing our second reserved judgment because for the most part we focused only on the things which the parties had disputed. 102 With the very important reservation therefore that the detail in paragraphs 6.332- 6.468 of the EVJD may have had the effect of obscuring the reality of what was involved in the carrying out of the task of assembly in a fresh DC, we decided that the following paragraphs of the EVJD should be incorporated here, on the following bases (and if we do not refer to a particular paragraph then we have decided that it should not be incorporated, either for the reasons given by the claimants or because Case Numbers: 3304495/2018 & others 270 we concluded that it added nothing relevant, paragraph 6.373 being a prime example, as it was simply an index):

102.1 6.374-6.376;

102.2 6.378, including the reference to “page 137 of the AMC Guide” (i.e. D1/2/137, which in our view had to be read with the next page, D1/2/138), given that it was in our view helpful;

102.3 6.379-6.383, with the claimants’ proposed words for paragraph 6.381, which we accepted were accurate; the “Photo G43.1” referred to in paragraph 6.382 was at D9/02./65;

102.4 6.385-6.386, and 6.389, all of which (i.e. taking them together) must be read as a statement in words of part of D9/256, “Know Your Stuff for Fresh Assembly – Product Handling and Cage Stacking”, to which we refer in paragraph 17.15 on page 390 of our second reserved judgment (and paragraphs 47 and 48 above) and which we incorporate here; we also incorporate here the video at D9/543 entitled “Cage Stacking Routines”, since its principles plainly applied not only to cage stacking in an ambient DC but also in a fresh DC;

102.5 paragraphs 6.387-6.389 only in so far as they were consistent with D1/3/3 and the Pristine video guidance at (1) the section 2 minutes 29 seconds into D9/538 up to 3 minutes and 12 seconds in, and (2) the section at 7 minutes 21 seconds into D9/535 up to 9 minutes 37 seconds in; that meant that the claimants’ proposed words for paragraph 6.388 are incorporated and not those of the respondent;

102.6 6.393-6.395 despite the overlap with row 22 on D9/154/4;

102.7 6.396 in (see paragraphs 674-677 on pages 549-550 of our second reserved judgment) the claimants’ proposed words ;

102.8 6.397;

102.9 6.398 despite the fact that it was less helpful as a statement of assembling from multi-product pallets than D9/251/10-12, with which it should be read;

102.10 6.399 despite it stating the obvious; it was probably a rewritten version of row 32 on D9/154/5;

102.11 6.400-6.403 with the latter in the claimants’ proposed words (the content of page 3-72 as set out on D1/2/154 not appearing to add anything material to paragraph 6.403) concerning the assembly of trays;

102.12 6.404-6.405 read with paragraphs 678-682 on pages 550-551 of our second reserved judgment, so in what we understood there to be the claimants’ Case Numbers: 3304495/2018 & others 271 proposed words (on reconsideration we realised that what was proposed in the claimants’ closing submissions was not as set out by us in paragraph 681 on page 551 of our second reserved judgment, and we found the latter, i.e. what was set out in paragraph 681, to be more accurate);

102.13 6.406-6.410 concerning skim and drop assignments as a starting-point for assessing what was the work involved in such assignments; it appeared to us that those paragraphs were an inaccurate or incomplete reflection of the content of rows 52-63 at D9/154/7-8 read with pages 5-3 to 5-5 of the AMC guide at D1/2/140-142, so that the latter rows and pages were the primary source of evidence in regard to skim and drop assignments;

102.14 6.411-6.420 concerning “layerpick” assignments (in fact they were referred to on D1/2/143 as “Mixed Layer Picking”, and reference was made there to “layer pick pallets”; D1/2/153, to which reference was made in paragraph 6.420 of the EVJD, was, contrary to the claimants’ submissions, relevant) but excluding paragraph 6.418 because it was in our view irrelevant at this stage;

102.15 6.422-6.428 concerning stacking and restacking, with the figure of 24kg in paragraph 6.428 changed to 23kg (in line with what we say in paragraph 92 on page 34 above and paragraph 207 on page 59 above) and with the average weight figure of 8.4kg in that paragraph replaced by the figure of 8.21kg to which we refer in paragraph 56 above; we note here that row 44 on D9/154/6 required an operative to “Restack any Unit Of Delivery if required”;

102.16 6.430, 6.431, and 6.434, relating to unit integrity and damage to products; paragraphs 6.430 and 6.431 had to be read with rows 76-81 at D9/154/8-9;

102.17 6.436-6.441 relating to the closing and opening of UODs (in regard to paragraph 6.440, the AMC guide page copied at D1/2/114 was helpful, but the text accompanying it, written by the compiler of D1/2/114, did not appear to add anything material, not least because it appeared to be inaccurate); we observe that the assertion in paragraph 6.437 that “[t]he job holder used a specific technique to secure the Cage, holding on to the Cage with one hand and tightening (but not overtightening) the strap with the other hand” appeared, from rows 42 and 43 on D9/154/6, to be about a standard technique;

102.18 6.442 in the words proposed by the claimants; we record here our conclusions that (a) the dispute between the parties about the percentage figure of 40% (which the respondent initially used and now proposed be changed to 30%) was (1) unlikely to be about something material, and in any event (2) dependent upon guesses, and (b) for the reasons given by the claimants the figure of 40% should be accepted;

102.19 6.443; Case Numbers: 3304495/2018 & others 272

102.20 6.444 read with what we say in paragraphs 694-695 on pages 553-554 of our second reserved judgment;

102.21 6.445-6.447 with (see paragraph 698 on pages 554-555 of our second reserved judgment) the words proposed by the claimants for paragraph 6.447;

102.22 6.449-6.453 (with the reference in paragraph 6.450 to “pages 155 and 156 of the AMC Guide” not included and on the basis that it appeared that the page of D1/2 to which reference was intended to be made in that regard was D1/2/157), relating to “shorts”; the situation was dealt with apparently comprehensively and simply in rows 70-75 on D9/154/8, and (as we say in paragraph 43 in appendix 14 on page 306 below) we thought that the parts of paragraphs 6.451-6.455 of the EVJD which were about something which was not standard practice (namely the obtaining of “a full print out of the Cages”) were not relevant and should not be incorporated, even though they were agreed by the claimants to have been accurate statements of fact;

102.23 the first two sentences of paragraph 6.455, regarding “overs” (i.e. excluding reference to the non-standard route which Mr Pratt sometimes followed as described in the third sentence); D1/2/159 was helpful, but rows 64-69 on D9/154/8 were a rather better description of the work involved in dealing with “overs”; in addition, paragraphs 6.341-6.343 of the EVJD for Mr Young constituted a rather better statement of what was involved than paragraphs 6.456-6.458 of the EVJD for Mr Pratt; paragraphs 6.456-6.458 of the EVJD are therefore incorporated here but on the basis that they are clarified by paragraphs 6.341-6.343 of the EVJD for Mr Young and rows 64-69 on D9/154/8;

102.24 6.459-6.461 about dealing with empty pallets at the end of an assignment; the video at D9/185 was rather better evidence of how to use a pallet stacker;

102.25 6.463-6.464, about the lack of choice for an assembler; and

102.26 6.465-6.468, which were simply to the effect that the assembler might end or start a shift with a part-completed assignment. Unloading Unloading trunked ambient deliveries 103 Paragraphs 6.469-6.473 of the EVJD, (1) read with what we say in paragraphs 835- 839 on pages 591-592 of our second reserved judgment in relation to the manner in which a ratchet had to be opened, and (2) with the cross-reference in paragraph 6.469 changed to D1/2/97-98 (on the assumption that the AMC guide was relevant; it was only peripherally relevant here), are incorporated here. The cross-reference in Case Numbers: 3304495/2018 & others 273 paragraph 6.471 of the EVJD to paragraphs 6.58-6.72 is to be read as a crossreference to paragraphs 32 and 33 above (i.e. in this appendix). Moving the unloaded cages to holding bays 104 Paragraphs 6.474-6.475 and 6.478, about moving the unloaded trunked cages, are incorporated here. Paragraph 6.476 in the following terms is also incorporated here. “When moving the trunked cages (whether slim line or otherwise), the job holder had to be careful to avoid them falling over or units falling out of them.” Unloading and where appropriate reloading chilled trailers 105 Paragraphs 6.479-6.483 of the EVJD without the final sentence of paragraph 6.482, are incorporated here. Inside pallets 106 As we say in paragraph 194 on page 56 above, Mr Pratt did the job of inside pallets only during 2012-2013 and that during that period he did that job on 6 occasions, which meant that, applying H31, he did it during that period “occasionally”. 107 Paragraphs 6.484-6.487 of the EVJD (with, see paragraph 700 on page 555 of our second reserved judgment) the claimants’ proposed words for paragraph 6.485, are incorporated here. 108 Paragraph 6.489 of the EVJD read with what we say in paragraph 701 on page 555 of our second reserved judgment, and paragraphs 6.490-6.493 of the EVJD are incorporated here (even though paragraph 6.493 was in reality a repeat and stated what we thought was obvious; it was agreed so we incorporated it here) with the following reservations. The content of the second sentence of paragraph 6.490 was shown by the 10-second section of the video at D9/185 from 2 minutes in onwards to be obvious also. The subject-matter of the third sentence of paragraph 6.490, namely the destination of the “stack of Pallets” (whether bay 10 or bay 16), was irrelevant. 109 Paragraph 6.494 of the EVJD, read with (see paragraphs 702-704 on pages 555-556 of our second reserved judgment) row 12 on D9/562/3, is incorporated here. The reference in paragraph 704 on page 556 of our second reserved judgment to the frequency with which the job of inside pallets was done by Mr Pratt is to be read as corrected by what we say in paragraph 106 above. Set up and standards 110 Paragraphs 6.495-6.502 of the EVJD (so, as indicated, with the respondent’s proposed words; we thought that they were apt) are incorporated here. MHE battery changes Case Numbers: 3304495/2018 & others 274 111 D9/212, showing the risks associated with the use of batteries at a DC, is incorporated here. The pedestrian PPT

[112]Paragraphs 6.503-6.505 of the EVJD are incorporated here (paragraph 6.503 being correct in referring to two bars, as that was stated in row 103 on D9/154/10; we now therefore delete the first sentence of paragraph 706 on page 556 of our second reserved judgment).

[113]D1/3/13 is incorporated here, alongside paragraphs 6.507-6.519 and 6.538-6.540 of the EVJD, all of which in our view (on reconsideration) as agreed and otherwise as proposed by the respondent (and we understood that the figure for the weight for the battery of 54kg stated in paragraph 6.508 of the EVJD was agreed) were apt, despite the overlap with D1/3/13 and despite the slightly dramatic words of paragraphs 6.518 and 6.540 about the risks arising from a bare wire. Craned battery changes for the loading truck

[114]Given what we say in paragraph 195 on page 56 above, paragraphs 6.520, 6.521, 6.523-6.528, and 6.531-6.537 of the EVJD are incorporated here, read with D1/3/9, D9/468 and what we say in paragraph 731 on page 563 of our second reserved judgment. Battery acid spillage

[115]The rather stilted words of paragraphs 6.541-6.543 of the EVJD are best read as a statement of the content of D9/504 and D9/641. Those training materials were in our view rather better at stating what was the subject of paragraphs 6.541-6.543 of the EVJD. Parts of the EVJD the reason for whose exclusion was not obvious (or discernible from what we say in our second reserved judgment) and which are not included in the above statement of the work of Mr Pratt, and the reasons why they are not so included

[116]Paragraphs 6.166 and 6.167 of the EVJD are not incorporated as they stated the obvious, which was in any event already catered for by the incorporation of the respondent’s highway code via paragraph 16 above, and by what was said in the right hand column on D9/481/6, which is incorporated via paragraph 20 above.

[117]Paragraph 6.174 of the EVJD added nothing material to the content of paragraphs 6.170-6.173 and 6.175 of the EVJD: it was merely to the effect that Mr Pratt had done his job properly by not causing a Danish trolley to topple, whereas he had been made aware that some colleagues had caused a Danish trolley to topple. Case Numbers: 3304495/2018 & others 275

[118]Paragraph 6.176 of the EVJD was unnecessary given(1) row 22 on D9/146/3, which we have incorporated via paragraph 30 above, and

(2) D9/393/3, which we have incorporated via paragraph 31 above.

[119]Paragraphs 6.179 and 6.181-6.182 of the EVJD were inconsistent with what we say in paragraph 389 on page 484 of our second reserved judgment, which we have incorporated via paragraph 36 above.

[120]Paragraphs 6.194, 6.195 and the first part of paragraph 6.196 of the EVJD were unnecessary given what we say in paragraph 86 of appendix 8 at page 238 above. (The second part of paragraph 6.196 was contrary to what we say in 68 on page 25 of our second reserved judgment.)

[121]Paragraphs 6.197 and 6.198 of the EVJD were inapt given especially what we say in paragraphs 531 and 532 on pages 517-518 of our second reserved judgment.

[122]Paragraph 6.203 of the EVJD added nothing to paragraphs 6.187-6.189 of the EVJD, to which we refer in paragraph 82 above.

[123]Paragraphs 6.230 and 6.235 of the EVJD were, for the reasons stated in paragraphs 620-632 on pages 537-540 of our second reserved judgment, unnecessary.

[124]We agreed with the claimants(1) that paragraphs 6.287-6.289 of the EVJD, and

(2) paragraph 6.300 of the EVJD (which was inconsistent with these words in column 5 on D1/3/18: “The lift bridge-plate is lowered using the DC specific control button/ mechanism until it rests on the trailer bed with sufficient overlap to allow for trailer suspension creep”) were irrelevant or exaggerations.

[125]The substance of paragraph 6.303 of the EVJD was probably an adaptation of the text at the bottom of D9/421/5, and there was at the top of D9/421/6 a good photograph of the red button referred to in that paragraph. Row 47 on D9/146/6 emphasised the importance of applying the “parking brake”.

[126]The second part of paragraph 6.304 of the EVJD was on its face a repetition but in any event it was unnecessary given what was said on D9/421/4 below the heading “Weight Distribution” (to the end of the page).

[127]Paragraph 6.336 of the EVJD was in our view not about the demands of the work of a fresh DC assembler, which had to be assessed on the assumption that the existence of the respondent’s MHE highway code stated the demands sufficiently. The same was true of paragraph 6.337 of the EVJD, which in any event in our view stated the obvious.

[128]Paragraph 6.339 of the EVJD firstly contained a repetition which was unhelpful, and then referred to the step of selecting the “next assignment” function. That detail would have been just about sufficiently material to include here, if it had not already been stated at row 16 at D9/154/3. Case Numbers: 3304495/2018 & others 276

[129]Paragraph 6.391 of the EVJD (“Due to their reduced width, when assembling Units into Slim Line Cages, the job holder had to take extra care not to catch his arms, hands or his AMC on the edge of the Cage”) was in one sense a statement of the obvious (which was discernible if nothing else from the section of the video at D9/535 to which we refer in paragraph 102.5 above) but it was also in part an extension of paragraph 6.390 of the EVJD, which we have not incorporated because it was inconsistent with what we concluded was the real risk of lacerations, as recorded by us in paragraph 84 above. As for the rest of paragraph 6.390, we agreed in principle with the implicit proposition that it was relevant to know how many times an assembler would in a full shift have to reach to the back of a cage, but in our view it was more important to know who many times either per, say, five minutes, or per pallet that had to be done, and, on the incontrovertible basis that the work did not need to be done continuously, how long were the gaps between instances of doing that work. Of course, those things will have varied with the instructions given on the AMC for each round of assembly, and we agreed with the claimants that there was no reliable evidence to support the claim in paragraph 6.390 of the EVJD that Mr Pratt “[stacked to the full depth of the Cage and reached to the back of the Cage to do that] 1,164 times per full night shift”.

[130]Paragraph 6.421 of the EVJD had to be read as stating in rather general words the effect of D9/256, “Know Your Stuff for Fresh Assembly – Product Handling and Cage Stacking”, which we incorporate via paragraph 102.4 above.

[131]Paragraph 6.462 of the EVJD appeared to be incorrect at least in some circumstances, given what was said at rows 63 and 68 on D9/154/8. In any event, recording that the operative had to press a button on an AMC was in our view about a minute matter which was unlikely to affect the value of the work done. The key factor was that the operative had to follow the instructions on the AMC, and if that involved pressing a button, so be it. In fact, the page of the AMC guide referred to in paragraph 6.462, D1/2/159, did not show a requirement to press “enter” to generate the next assignment, which suggested to us that the next assignment would automatically appear, and that was consistent with what was said in rows 63 and 68 on D9/154/8. Case Numbers: 3304495/2018 & others 277 Appendix 12 The work of Mr Todd and the conditions in which he did it

Introduction

[1]By way of introduction, we incorporate here paragraph 736 on pages 564-566 of our second reserved judgment on the basis that we accepted the figures which the parties had by the time of closing submissions agreed, and that there was only the one minor aspect which was not agreed. That minor aspect was the subject of paragraph 736.6 on pages 565-566 of the judgment. Assuming that it was helpful for us to come to a conclusion on that aspect, we concluded that the consistency with which the respondent eventually accepted the claimants’ position on the elements of section 3 of the EVJD to which we refer in paragraph 736 on pages 564-566 of our second reserved judgment suggested that the claimants’ analysis was correct, and we therefore accepted that “the average time was just over 35 minutes” on the eight occasions when Mr Todd did the work of “inside pallets”. Goods in/tipping; paragraphs 6.66-6.193 of the EVJD

[2]Paragraphs 6.66-6.193 of the EVJD for Mr Todd as it stood by the time of closing submissions (in this appendix, “the EVJD”) are incorporated here,(1) read with what we say (a) in paragraphs 737-760 on pages 566-571 of our second reserved judgment, (b) in paragraphs 201-202 on pages 57-58 above, and

(2) subject to what we say in the following paragraphs (i.e. paragraphs 3 to 62) below. We noted incidentally that paragraphs 6.69 and 6.75 of the EVJD were strongly supportive of our conclusion stated in paragraph 389 on page 484 of our second reserved judgment. We record here that there was in our view no need for the claimants’ proposed clarification of paragraph 6.75 of the EVJD, as that paragraph as proposed by the respondent when read with paragraph 6.74 of the EVJD was in our view sufficiently clear and accurate. Opening a trailer’s doors

[3]Our conclusion stated in paragraphs 349-351 on page 473 of our second reserved judgment resolved the dispute about paragraph 6.81 of the EVJD (i.e. for Mr Todd), and we formally record that here. Paragraph 6.81 of the EVJD is therefore incorporated in the words set out in paragraph 349 on page 473 of our second reserved judgment but with the word “leant” changed to “reached” and read with the conclusion in paragraph 351 on that page. The dock leveller

[4]We applied the thinking behind our conclusions stated in paragraphs 352-354 on pages 473-474 of our second reserved judgment in resolving the dispute about paragraph 6.83 of the EVJD; paragraph 6.83 is therefore incorporated on the basis that its words “did not describe any part of a [tipper’s] work for the purposes of Case Numbers: 3304495/2018 & others 278 section 65(6) of the EqA 2010, although they did help the reader to understand an aspect of that work”.

[5]What we say in paragraphs 355 and 356 on pages 474-475 of our second reserved judgment applies to what is said in paragraphs 6.84 and 6.86 of the EVJD, concerning the dock leveller. In addition, these words from the risk assessment at D9/218/1, in our view showed that the “jolt of forward movement in the Trailer as the load was tipped” to which reference was made in paragraph 6.86 of the EVJD should not have been permitted to happen. “Dekitter/Loader monitors position of dock leveller flap throughout Dekit/Loading operations and requests trailer air suspension adjustments to be made where necessary.”

[6]Accordingly, we do not include paragraph 6.86 of the EVJD, and the words proposed by the claimants for paragraph 6.84 of the EVJD are incorporated . Removal of safety bars

[7]With the respondent’s agreed change to paragraph 6.89 of the EVJD (which was consistent with the photograph at D9/0.2/58), that paragraph was in our view apt. For the avoidance of doubt, so were the respondent’s proposed words for paragraphs 6.90-6.91 of the EVJD. Releasing ratchet straps; “Finger and hand injuries”

[8]For the avoidance of doubt, paragraph 6.96 of the EVJD had to be read with what we say in paragraphs 737-739 on pages 566-567 of our second reserved judgment and with paragraph 6.97 of the EVJD, on which we stated our conclusion in paragraph 740 on page 567 of our second reserved judgment. However, on reconsideration we realised that our conclusion in paragraph 739 on page 567 of our second reserved judgment was wrong. That was because of the oral evidence of Mr Todd to which we refer in paragraph 197 on pages 56-57 above. In addition, the part of the training video at D9-186 (entitled “Loading – Strap 2000”) starting 4 minutes 26 seconds in, related to releasing the ratchet and showed that it was straightforward and ordinarily at least would involve no difficulty. On that basis, we concluded that the words of the claimants for paragraph 6.95 were, after all, more apt than those of the respondent, and the claimants’ words for that paragraph are accordingly now incorporated. In addition, on reconsideration we concluded that what we say in paragraph 198 on page 57 above should be taken into account in regard to the risk of a hand injury and the steps to be taken to reduce that risk. Perhaps most pertinently, we saw (as we record in paragraph 198 on page 57 above) that gloves were “mandatory for [the] task” of dekitting and that if an unloader were not sure about how to operate “load restraint equipment” then the supplier driver had to operate that equipment. Lifting bulkhead panels Case Numbers: 3304495/2018 & others 279

[9]There was in relation to paragraph 6.101 of the EVJD a dispute about the effort required to move the bulkhead panels on “Supplier Trailers”. We did not determine that dispute in our second reserved judgment as we thought that its outcome would not affect the assessment of the demands of the work of an unloader. The respondent proposed the following words. “During the Relevant Period, all Bulkhead Panels on Supplier Trailers measured the full width of the Trailer. They could be made of composite materials, or combined metal and composite. To guide each supplier Trailer Bulkhead Panel into position (using the ratchet mechanism or the rope and pulley) required the job holder to exert physical effort which for a full width composite Bulkhead Panel was equivalent to lifting about 20kg with one hand. The equivalent for a combined metal and composite panel was about 30kg.”

[10]The claimants proposed this instead of the above text. “During the Relevant Period, all Bulkhead Panels on Supplier Trailers measured the full width of the Trailer. They could be made of composite materials, or combined metal and composite. To guide each supplier Trailer Bulkhead Panel into position (using the ratchet mechanism or the rope and pulley) required the job holder to exert physical effort which for a full width (composite) Bulkhead Panel was equivalent to lifting about 20kg. The equivalent for a combined metal and composite panel was about 30kg.”

[11]So, the only dispute maintained was about whether the effort was equivalent to lifting 20kg or 30kg as the case may be, with one hand. We noted that there was no assertion of this sort in the EVJD for Pratt (to which we refer in paragraph 63 of appendix 11 on page 256 above).

[12]The relevant documentary training materials were D1/3/5 and D9/656, to which we refer in paragraph 92.1 on page 411 of our second reserved judgment. No weights were referred to there. D1/3/5 was about split bulkhead doors which were, as stated there: “two lightweight single doors with a locking device above each one”, and which that document showed would be moved by one person. That document therefore did not say anything material in relation to the dispute in question. The informative video at D9/192 did not refer to weights. Nor did the section of the video at D9/525 concerning loading from 6 minutes 47 seconds in to 7 minutes 4 seconds in, which we found also to be very helpful in showing what was required by way of checking and moving bulkhead doors.

[13]The respondent’s justification for asserting the figures of 20kg and 30kg was this: “The JH confirms the material factual details set out [JH's Witness Statement, {E3/3/16}, paragraph 75]. It is noted that (by contrast to the position in relation to ratchet straps) the JH’s assessment of the force required to lift bulkheads was not challenged in XX.”

[14]The relevant part of that paragraph of Mr Todd’s witness statement was this: Case Numbers: 3304495/2018 & others 280 “The panels operate roughly like a garage door. Some of the bulkheads were composite and some a mix of metal and composite (these were typically on supplier trailers rather than Tesco ones). The force required to lift a composite panel was the same as lifting about 20kg (like the weight of a sack of potatoes or a full suitcase for the hold on a flight). The mixed metal/composite ones were heavier than the fully composite ones and I think about 30kg seems right as an equivalent.”

[15]That did not help on the question whether the use of the words “with one hand” was apt. The claimants said in that regard: “The physical effort required to lift a bulkhead would be the same whether the job holder used one or two hands, but there has been no evidence to suggest that he would ever try to lift a full width bulkhead with only one hand.” In fact, paragraph 6.101 of the EVJD had to be read with paragraph 6.102 of the EVJD which, as proposed by the respondent by the time of closing submissions, was in these terms. “Given their additional weight, when lifting metal Bulkhead Panels on Supplier Trailers, (Photo G13.1) the job holder assessed whether it was safe for him to lift the Bulkhead Panels by himself, or whether he needed to ask for support from the third-party supplier Driver or another operative, which was required at least once a shift. The job holder would always ask for help with a mixed metal/composite Bulkhead Panel as even with two people, it could still take force to move it.”

[16]The claimants proposed slightly different words for that paragraph, based on paragraphs 76-77 of Mr Todd’s witness statement. The claimants’ proposed words for paragraph 6.102 of the EVJD were: “The job holder would almost always have help from a colleague or third-party driver with composite panels (ie unless the trailer was very new), and would always have help with mixed metal / composite panels.”

[17]The “Full Width Mattress” door which was the subject of the middle section of D9/656 (on which the respondent relied in support of its proposed words for paragraph 6.102 of the EVJD) was stated to be moved by two people, but the other two doors dealt with in that SSOW were shown to be capable of being moved by one person. The reference in paragraph 6.101 of the EVJD to “(Photo G13.1)”, was incorrect. We found the photograph, after some searching, at D9/0.2/21. The “Split Bulkhead Door”, dealt with on the right hand side of D9/656, was said there to be “two lightweight single doors with a pulley above each one”. That part of D9/656 showed the sequence of events required to open those doors.

[18]We found the words in paragraph 6.101 of the EVJD to be misleading if and in so far as they suggested that there was a need to move a “Split Bulkhead Door” with one hand from start to finish. That was because the following words, at D9/656, showed precisely what was required to open that kind of door. Case Numbers: 3304495/2018 & others 281 “The Loader releases the restraining straps holding the door in position and stows them away to prevent a trip hazard. Loader stands facing the door, feet apart, knees slightly bent to maintain a stable position and holds the handle with one hand. Loader’s other hand is placed flat on the bulkhead door and pulls handle to raise the door high enough to attach the pulley using the clip at the end of the rope, pulling the rope until the door is fully raised.”

[19]So, we doubted the accuracy of both paragraphs 6.101 and 6.102 of the EVJD. We concluded, however, that the claimants were right to say that if there was a need to do something which was like lifting 20kg or 30kg, then the words which we have just set out from D9/656 showed that both hands, and not one, were involved in at least part of the work. That conclusion was shown by the video at D9/192 to be correct: the operative in the video used both hands to move the split bulkhead door.

[20]The claimants also opposed paragraphs 6.103 and 6.104 of the EVJD, both of which in our view were problematic. The claimants correctly said that paragraph 6.103 was a repetition of paragraph 6.102. Paragraph 6.104 as proposed by the respondent was in these terms. “The applicable SSOW recommended (but did not require) that 2 operatives supported the dropping or lifting of a full width Bulkhead Panel. The job holder occasionally did both on his own (e.g. with newer composite panels).”

[21]That was incorrect, given that at D9/656, this was said about moving the “Full Width Mattress” door: “Full width mattress bulkhead doors require two people to break the seal and lift the door”.

[22]In those circumstances we concluded that paragraphs 6.102-6.104 of the EVJD should not be incorporated and that the demands of the work should be assessed by reference to22.1 D1/3/5 and D9/656 read with paragraph 6.101 of the EVJD in the words proposed by the claimants, which we have set out in paragraph 10 above, and

22.2 the video at D9/192.

[23]Paragraphs 6.107 and 6.108 of the EVJD were also the subject of dispute. Given what we say in paragraphs 66-69 on pages 24-25 of our second reserved judgment, it should be clear that paragraph 6.108 (“When manoeuvring, dropping or lifting a Bulkhead Panel, it was part of the job holder’s work to do so in such a way as to avoid the recognised hazards associated with it and the risks arising from those hazards – see paragraph 0 – 10.15A for further details regarding those hazards and the associated risks.”) was not apt, and therefore is not incorporated . The same was true of paragraphs 6.124, 6.160, 6.194A, 6.238, 6.273, 6.363, 6.373A and 6.393 of the EVJD. Case Numbers: 3304495/2018 & others 282

[24]Paragraph 6.107 of the EVJD could not be dealt with so simply. It was in these terms. “Given their size and weight, there was a risk of the Bulkhead Panel(s) falling down (from height) on to the job holder had the rope or the job holder slipped whilst manoeuvring the Bulkhead Panels into position. This was something the job holder remained alert to at all times when handling Bulkhead Panels.”

[25]However, that statement was applied to all kinds of bulkhead panel, and the panel dealt with on the left hand side of D9/656 was a “Gas Assisted” panel, which was unlikely to be at risk of falling because it was lowered using a gas spring which would, we guessed, cause it to be lowered gently. The “Full Width Mattress” door was (as can be seen from what we say in paragraph 21 above) moved only by two people. So, paragraph 6.107 of the EVJD was probably applicable only to the kind of door in relation to moving which we have set out the (in effect) instructions in paragraph 18 above. However, there were two pictures at D9/656 showing how a “Split Bulkhead Door” had to be moved. They did not support the words of paragraph 6.107 of the EVJD, since they showed the person moving the door not to be below it as it was being moved. The video at D9/192 showed the same thing. Accordingly, we concluded that paragraph 6.107 was not apt and should not be incorporated . Assessing working conditions

[26]Paragraph 6.109 of the EVJD was opposed on the basis that it was an overstatement. As proposed by the respondent, it was in these terms. “The job holder remained constantly alert to dangerous ground conditions within the Trailer, particularly from cardboard and packaging detritus falling to the floor, as well as any water ingress or other spillages all of which created slip hazards for himself and other operatives, whether they were using MHE or travelling on foot.”

[27]As proposed by the claimants, paragraph 6.109 of the EVJD was: “At the start of a Goods In assignment, the job holder assessed conditions within the Trailer Goods in Bay and removed any cardboard and packaging detritus that had fallen onto the floor and if there were sufficient water ingress or other spillages to cause him problems he would arrange for them to be removed by the hygiene team.”

[28]Our conclusion stated in paragraph 389 on page 484 of our second reserved judgment applied here. On reconsideration, we could see that what the claimants were proposing for paragraph 6.109 of the EVJD was entirely in line with our conclusion stated in paragraph 389 on page 484 of our second reserved judgment, which withstood our scrutiny on reconsideration. Accordingly, the words proposed by the claimants for paragraph 6.109 of the EVJD are incorporated .

[29]The claimants opposed paragraph 6.111 of the EVJD on the basis that the words “Once confident that all Pallets could be unloaded safely” proposed by the Case Numbers: 3304495/2018 & others 283 respondent for the start of the paragraph were “an exaggeration of what was involved in Tipping, and in so far as it relates to what the job holder did before starting to unload it repeats what is already said in the replacement wording for paragraph 6.109”. We agreed. The opposed words are not incorporated and the claimants’ proposed words for paragraph 6.111 of the EVJD are incorporated .

[30]We saw that30.1 in paragraph 6.115 of the EVJD it was said that when unloading trailers, 50% of the time the trailer had no internal light and Mr Todd was therefore reliant on “bay mounted spotlights, the effect of which did not reach fully to the rear of the Trailer”, as a result of which “it was difficult for the job holder to identify problems with palleted Stock, debris on the floor and when manoeuvring and positioning the MHE forks”, and

30.2 the claimants did not object to that.

[31]Despite what we say in paragraph 611 on page 535 of our second reserved judgment about poor lighting, which we interpreted in that paragraph read with the preceding paragraphs, i.e. 606-610, to mean “insufficiently safe”, we accepted on reconsideration that a trailer which did not have its own internal lighting could be a little dark, and that that was a relevant condition in which anyone whose work involved going into that dark area, had to work. However, the words in paragraph 6.115 of the EVJD about difficulty in identifying problems in our view showed that the respondent’s business interests might be affected adversely by the relatively poor light. In addition, it was quite possible that spotlights could be added to the MHE used in unloading a trailer. What we say in paragraphs 84 and 85 of appendix 8 on page 237 above is applicable here also. All of those things caused us to conclude that a comparator who went into trailers was not required for the purposes of section 65(6) of the EqA 2010 to work in insufficient light. Similarly, debris on the floor would have had to be removed, as stated in paragraph 6.109 of the EVJD as we have found it should be (see paragraphs 27 and 28 above), so the reference to debris on the floor made little sense here unless it related to the unfolding situation as pallets were taken off the trailer. But if so, then it was still necessary for the unloader to check the floor for debris as he went along and if that happened then the unloader would be able to “identify problems with palleted” stock. We therefore concluded that the final sentence of paragraph 6.115 of the EVJD had to be read with all of those caveats in mind. “Safe Working Practice”

[32]However, we agreed with the respondent’s proposed words for paragraph 6.117 of the EVJD and preferred them as an accurate and informative statement of the extent to which Mr Todd (or any other unloader) would have to watch out for other persons in the vicinity when moving pallets of stock around with a “Ride On PPT”. We nevertheless agreed with the claimants that paragraph 6.118 of the EVJD exaggerated the extent to which the unloader would have to “[twist] backwards and forwards 180 degrees” when doing that, and we concluded that (as the claimants Case Numbers: 3304495/2018 & others 284 submitted) D9/481/5 showed the extent of the movement required. That proposition was put to Mr Todd in cross-examination, as recorded in pages 220-222 of the transcript of day 24, and he accepted that(1) the picture on the right of the two on D9/481/5 showed how he had been trained to stand and

(2) that there was nothing in D9/481, including on page 5, “to suggest that [the driver of a Ride On PPT needed] to twist [his or her] body at all, let alone by 180 degrees [if he or she stood] in accordance with the way [in which he/she had] been trained to stand”. “Addressing Risks during Tipping”

[33]However, we did not think that the respondent’s proposed words for paragraphs 6.119-6.120 of the EVJD to which the claimants objected were completely inapt and should therefore be excluded. Rather, we concluded on reconsideration that the opposed words were to some extent relevant and could after all be taken into account although there was in paragraph 6.119 a slight dramatisation of the risk to which they related.

[34]The respondent’s proposed words for paragraph 6.123 of the EVJD (relating to brown pallets and their usually heavier laden weights) were, though, we concluded on reconsideration, not apt, and we concluded that the claimants’ proposed words for that paragraph should be incorporated . “Unloading Merchandising Units (MUs)”

[35]There was a helpful definition of a merchandising unit at D9/354/3, namely “a display cage or box that can be wheeled or placed onto a store floor or shelf without being unpacked”.

[36]Paragraph 6.125 of the EVJD was in these terms. “Whilst up to 90% of Stock delivered to the DC was delivered on Pallets, deliveries regularly included MUs which were commonly used to deliver high volumes of Products such as potatoes or eggs. The former weighed between 205kg and 225kg each (with an average weight of all MUs at 168kg). A fully loaded single deck Trailer contained between 70 and 88 laden MUs with around 80% being double stacked, rising to a height of over 2 metres.”

[37]The claimants opposed those words on the following bases. “1. The Respondent’s figures are unreliable for the reasons given in the Harcus Claimants’ Closing Submissions. 2. In any event, the Respondent’s spreadsheets show the figures in the replacement wording: see D9-14, D9-46, and D9-48 – Harcus Claimants Analysis, and {D9/642}. 3. How many MUs were on a trailer is irrelevant.” Case Numbers: 3304495/2018 & others 285

[38]The respondent’s submissions in reply, i.e. in support of paragraph 6.125 of the EVJD, were these: “See submissions in relation to the approach to calculating MU weights at section 7 below and in the Respondent’s Closing Submissions at paragraphs 125 to 134. The weights are relevant because heavy goods require greater care. See submissions at paragraph 6.123 above. There is no explanation is given for why the height of the double stacked MUs is objected to.”

[39]The respondent’s “submissions at paragraph 6.123 above” contained only this relevant sentence: “The JH explains that the weight of the Stock on a brown Pallet is relevant to the burden of dealing with them due to the greater consequences of a heavy load toppling, rather than being weight is a cause of instability in itself [JH's Witness Statement, {E3/3/19}, paragraph 89].”

[40]So, the submission (set out in paragraph 38 above) that the weights were relevant because heavy goods require care, was not supported by the submissions made in support of paragraph 6.123 of the EVJD. The weights of the MUs will, however, have been relevant if there was a need to move the MUs by hand. In paragraph 6.130 of the EVJD, which was agreed, it was said that it was necessary in the circumstances dealt with there to move “single or double stacked MUs by hand, rotating each by 90 degrees, through repeated movement back and forward due to only two of the wheels being steerable, to enable them to be positioned in a row in such a way that the forks of the Loading Truck could then be inserted underneath them”. Paragraph 6.131 of the EVJD was about the weights moved as described in paragraph 6.130. We return to paragraph 6.131 in paragraph 46 below. D9/551 and D9/608 (to which we refer in paragraph 153 on page 431 of our second reserved judgment) dealt with the unloading of MUs, the latter in more detail. Row 10 on page 2 of both of those documents (relating to Standard Merchandising Units) and row 19 (relating to “Double Stacked Pallet Merchandising Units”) on page 3 of D9/608 all said that the MUs could be unloaded using MHE and then said this: “Note: You can unload up to four merchandising units using a standard long leg truck.”

[41]In paragraph 152 on pages 430-431 of our second reserved judgment, we referred to D9/309 (“Know Your Stuff For Fresh Goods In – Unloading Merchandising Units”) and the later document with the same title at D9/355, dated 05/13. In the first of those documents (dated 07/06, so well before the start of the relevant period), this was said on page 2: Case Numbers: 3304495/2018 & others 286 “Some suppliers deliver merchandising units double stacked to save space on their trailers and make the delivery more cost efficient. These should be unloaded using a Low Level Order Picker only, and then broken down using a modified reach truck. Only trained operatives can use the reach truck and the goods in Team Manager will assign a reach truck operator to this task once the delivery has been unloaded.”

[42]Further up that page, this was said: “Low Level Order Picker - these are used to carry no more than three merchandising units off of the trailer or around the Warehouse. The merchandising units need to be turned sideways and lined up to allow the low level order picker to reverse onto them. Low Level Order Pickers can only carry three merchandising units because of the weight restrictions of their forks.”

[43]However, what was said on page 2 of D9/355 was different. So far as relevant, only this was said. “Reverse the LLOP truck onto the trailer and pick up: o If single stacked – two twinned merchandising units o If double stacked – four twinned merchandising units (two twinned units double stacked) Key Point Ensure the forks of the LLOP are aligned between the legs/wheels of the merchandising units and move the forks of the truck under the merchandising units.”

[44]Looking at the photographs at D9/0.2/42-43, we could see that it may not have been necessary every time to move MUs by hand when unloading them from a trailer. However, given the acceptance by the claimants of the text of paragraph 6.130 of the EVJD, we concluded that it was necessary to move MUs by hand as stated in that paragraph. Nevertheless, the pictures at D9/0.2/42-43 showed that the wheels of the MUs were quite large, so that the movement of the MUs may have been relatively easy.

[45]In any event, the weights of MUs were relevant. The respondent did not as far as we could see say that what the claimants said in their proposed words for paragraph 6.125 of the EVJD about the average weights was incorrect (and we emphasise that in saying that we took into account what was said on page 82 of the respondent’s closing submissions in support of paragraph 7.4(b) of the EVJD for Mr Todd). All of the documents referred to in that regard by the claimants were spreadsheets, and they appeared to support what the claimants said. However, the number of MUs on a trailer was in our view a relevant factor, if only because the more that had to be moved by hand, the greater will have been the effort required to unload the trailer. Case Numbers: 3304495/2018 & others 287 The height of one MU stacked on top of another, however, did not seem to us to be relevant. We therefore concluded that these words should be incorporated in place of those proposed by both parties for paragraph 6.125 of the EVJD. While up to 90% of stock delivered to the DC was delivered on pallets, deliveries regularly included MUs. An MU was a display cage or box that could be wheeled or placed onto a store floor or shelf without being unpacked. MUs were commonly used to deliver high volumes of products such as potatoes or eggs. The former weighed between 105kg and 225kg each and the latter between 76kg and 155kg (with an average weight of all MUs at 92kg). A fully loaded single deck trailer contained between 70 and 88 laden MUs with around 80% being double stacked.

[46]The figures given by the respondent in paragraph 6.131 of the EVJD were opposed by the claimants, who proposed alternative figures on the same basis as the figures in paragraph 6.125 of the EVJD were proposed. For the same reasons as our reasons for accepting the claimants’ submissions on the weights stated in paragraph 6.125 of the EVJD, we accepted the claimants’ proposed figures for paragraph 6.131 of the EVJD. We also concluded that the respondent’s proposed words for the second sentence of paragraph 6.131 (starting “The nature and extent of the physical effort required of the job holder in order to do this was demanding when the MUs were double-stacked”) were inappropriate as they amounted to argument, or alternatively they were evaluative. We therefore accepted the claimants’ proposed words for paragraph 6.131 of the EVJD in their entirety.

[47]Paragraph 6.126 of the EVJD was objected to because it referred to the skill and care required to ensure that the forks of a loading truck were “inserted to the correct depth” under a row of MUs in a trailer. Instead, the claimants proposed these words alone: “The job holder ensured the forks were inserted to the correct depth.” We observe that that required skill and care but it is likely that it will usually have been obvious when the forks had been inserted insufficiently. On that basis, i.e. with that understanding, we incorporate paragraph 6.126 of the EVJD in the respondent’s proposed words.

[48]Similarly, paragraph 6.127 of the EVJD was objected to by the claimants on the basis that it overstated the difficulty of the task of inserting the forks of a loading truck underneath 5 single MUs. The words “ to ensure their full weight (between 1.3 and 1.8 tonnes) was appropriately balanced on the forks to enable them to move safely over the Dock Leveller” proposed by the respondent were opposed on the basis that the right words were instead: “to ensure their full weight was balanced on the forks to enable them to move safely over the Dock Leveller”. The word “appropriately” seemed to add nothing unless it make it clear that there was a need for particular care. The fact that the weight of the 5 MUs would be between 1.3 and 1.8 tonnes also appeared to add nothing unless the greater weight of the MUs made Mr Todd’s work more difficult. In the circumstances, we accepted on the balance of probabilities that the work was marginally more difficult where the products moved were heavier than the norm and we concluded that the task of unloading 5 single MUs did require Case Numbers: 3304495/2018 & others 288 particular care. We therefore accepted the respondent’s proposed words for paragraph 6.127 of the EVJD. Paragraphs 6.128-6.129 of the EVJD: unloading MUs in tight rows of four

[49]We do not in terms say in paragraphs 741-742 on pages 567-568 of our second reserved judgment what words were appropriate for paragraphs 6.128-6.129 of the EVJD. For the avoidance of doubt, the words which we have set out (i.e. ours) at the end of paragraph 741 on page 567 of our second reserved judgment, read with our explanation of them in the following paragraph (742), state the facts of the situation to which paragraphs 6.128-6.129 of the EVJD related. “Addressing Topple Risk”

[50]Paragraph 6.135 of the EVJD as proposed by the respondent by the time of closing submissions (but with the words “had to exercise” rather than, as proposed by the claimants, “exercised”, since, we repeat, using the past tense was unhelpful in this context) was as follows. “When unloading MUs, the job holder had to exercise a level of concentration and skill, honed through experience, in positioning the forks of his Loading Truck at the correct depth, applying the correct throttle pressure and monitoring floor heights and conditions, both inside the Trailer across the Dock Leveller.”

[51]That was opposed on the basis that the whole of the paragraph constituted “Analysis / evaluation / comment. Irrelevant.” We did not determine that dispute originally because we thought that the proposed words could not be regarded as describing something material about the demands of the work of Mr Todd. The words were at least in part about the extent to which, it was claimed, Mr Todd did his work well. Otherwise, they were either an attempt to make that work appear to be more skilled than it was (which we will call here “enhancement”), or they were a helpful statement of the skill that was in fact required. Given that the issue for us was what was the work in question, we thought that the best that could have been said to cover the subject-matter of paragraph 6.135 of the EVJD was this. Unloading MUs required the unloader to position the forks of his loading truck at the correct depth, apply the correct throttle pressure and watch out for differing floor heights and hazards on the floor, both inside the trailer and on the dock leveller.

[52]Here, we concluded that the respondent’s words did in fact help us to understand the skill required, so that they were not in our judgment simple words of enhancement, but that they had to be read simply as a statement of those skills. The words which we set out at the end of the preceding paragraph above did that job, so we concluded that they should take the place of paragraph 6.135 of the EVJD.

[53]Paragraph 6.136 of the EVJD (“A number of other trained Goods In Warehouse Operatives at the DC lacked the skill and confidence required to unload MUs and so Case Numbers: 3304495/2018 & others 289 were reluctant to do it, despite being trained to do so.”) added nothing to that analysis, so it is not incorporated. That conclusion was consistent with what we say in paragraphs 744 and 745 on page 568 of our second reserved judgment about paragraph 6.138 of the EVJD. What, we concluded, should be said here in place of paragraphs 6.138 and 6.139 of the EVJD was that it was obvious that if an MU toppled and the contents of an MU fell on the floor then what was described in paragraph 6.139 would need to be done.

[54]We did not in our second reserved judgment expressly resolve the dispute about paragraph 6.137 of the EVJD (which was in these words: “Due their instability and propensity to topple over, when moving MUs, the job holder made sure to warn all operatives working in the same areas as him that he was passing through by calling out to them as he did so. He did this to mitigate against the risk of accidents and injury whilst moving MUs.”) However, given54.1 that the claimants accepted the words “When moving MUs the job holder would warn all operatives working in the same areas as him that he was passing through by calling out to them as he did so”, and

54.2 what we said in paragraph 68 on page 25 of our second reserved judgment, we thought that it was clear (and for the avoidance of doubt we now confirm) that the words quoted in the first subparagraph of this paragraph should be regarded as stating the only relevant fact of those asserted in paragraph 6.137 of the EVJD.

[55]Paragraph 6.140 of the EVJD (about the value of stock “lost as a result of these accidents”) was in our judgment not relevant at this stage so it is not incorporated. All of paragraph 6.141 of the EVJD was, for the reasons in the claimants’ closing submissions, repetitious, and as a result is also not incorporated. “Unloading Double Deck Trailers”

[56]For the avoidance of doubt, we agreed with the claimants’ words for paragraph 6.155, which simply made it cohere with the amended preceding paragraph, 6.154 of the EVJD. “Issues Encountered During Tipping” “Moving Stock to Replacement Pallet”

[57]Paragraph 6.169 of the EVJD had to be read with the preceding paragraphs of the EVJD, but those preceding paragraphs were imprecise because did not say what was the wrong with the damaged pallets to which they referred. However, paragraph 6.170 did help us to see what might be involved in repairing the damage. The respondent thought that paragraph 6.170 was agreed, and while the average weight of a tray was slightly less than as stated in that paragraph (see paragraph 56 of appendix 11 at pages 254-255 above), we concluded that paragraph 6.170 in the Case Numbers: 3304495/2018 & others 290 terms which the respondent thought were agreed should be incorporated with a correction of the average weight to 8.21kg.

[58]Assuming that it might be relevant that Mr Todd might be required to carry out a task alone rather than with the driver of a supplier’s vehicle, we agreed with the claimants that the reasons why Mr Todd might be required to do something about the contents of a pallet on his own were irrelevant: they were at most contextual and added nothing to an assessment of the demands of the work. So, the claimants’ proposed words for paragraph 6.169 of the EVJD are incorporated, on the basis that it might be relevant that he had to work alone in “address[ing] damaged Pallets (as a result of the Manager concluding that they could not be unloaded safely)”. “Addressing Over Height Pallets”

[59]We agreed with the claimants’ submissions and therefore incorporated their proposed words for paragraph 6.178 of the EVJD. The words in paragraph 6.178 (i.e. as proposed by the respondent) to which the claimants objected added nothing material to the claimants’ proposed words for the paragraph. “Identifying and Recording Damaged Produce”

[60]For the same reason, the claimants’ submissions in relation to, and their proposed replacement words for, paragraph 6.179 of the EVJD, were apt. However, the claimants’ proposed words were not apt for paragraph 6.180. That is because they failed to take into account the fact that the “cold chain” principles and responsibilities of customer assistants were applicable here so that the frequency with which Mr Todd in fact came across problems with the refrigeration units in trailers was irrelevant: he was required to check and remain aware of the temperature in the trailers and to report any fault promptly.

[61]We found the document at D9/354 (“Know Your Stuff For Fresh Goods In – Unloading a Supplier Delivery”), to which we refer in paragraph 149 on page 430 of our second reserved judgment, to be very helpful in showing what was the work of an unloader in a fresh DC. For the avoidance of doubt, we therefore incorporate it here. On page 2, there was this passage. “Trainers Note! Inform your trainees that if pallets are damaged, have fallen over or the temperature feels too high or low contact the team member coordinating the Goods In podium, a Warehouse Manager or a member of the Quality Assurance team to investigate.”

[62]That was in our view somewhat more precise and informative than paragraphs 6.179- 6.184 of the EVJD which, we concluded, should be incorporated(a) in the manner proposed by the claimants, so (consistently with what we say in paragraph 752 on page 570 of our second reserved judgment) without paragraph 6.184 and with simplified versions of paragraphs 6.179 and 6.180, and

(b) on the basis that (1) Case Numbers: 3304495/2018 & others 291 paragraphs 6.179-6.183 of the EVJD as they now stand are all to be read alongside the words which we have just set out from D9/354, and (2) they are no more than a fleshing out of those words. Goods in: checking; paragraphs 6.194-6.238 of the EVJD

[63]Paragraph 6.194 of the EVJD with the words “responsible for checking” replaced by “required to check”, is incorporated here.

[64]Paragraphs 6.195-6.237 of the EVJD are also incorporated here,(1) read with what we say (a) in paragraphs 761-778 on pages 571-575 of our second reserved judgment, and (b) paragraph 204 on pages 58-59 above, and

(2) subject to what we say in the following paragraph.

[65]We agreed with the claimants’ proposed words for paragraph 6.234 of the EVJD, which were a more straightforward and concise way of saying what was proposed by the respondent for that paragraph. Goods in: topping; paragraphs 6.239-6.273 of the EVJD

[66]Paragraphs 6.239-6.273 of the EVJD are also incorporated here,(1) read with (a) what we say in paragraphs 779-780 on pages 575-576 of our second reserved judgment, and (b) paragraph 207 on page 59 above, and

(2) subject to what we say in the next six paragraphs.

[67]What the claimants proposed for paragraphs 6.241 and 6.242 of the EVJD was apt, and is incorporated instead of the respondent’s proposed words with the following reservations. D9/535, to which we refer in the following paragraph below, showed that the work of topping applied not only to light products, so that the weights of the things moved by hand were relevant. Given that, as we say in paragraph 56 of appendix 11 on pages 254-255 above, on page 132 of the bundle of documents accompanying the respondent’s application for reconsideration it was said that(1) the average weight of a tray was 8.21kg, and

(2) there was “a maximum tray weight setting for suppliers of 23kg”, we concluded that the unevidenced figures in paragraph 6.242 of the EVJD as proposed by the respondent should be accepted with the reservation that they were slightly high.

[68]Concerning handballing, as we say in paragraph 85.4 on page 409 of our second reserved judgment, D9/582 and D9/598 stated the policy and procedure for building pallets by hand. They did not assist us in resolving the dispute about the first sentence of paragraph 6.243 of the EVJD (the second sentence being inapplicable for the reasons given in paragraph 23 above). The claimants relied in support of their proposed simplified version of that first sentence on D9/535, which was a video. We watched it. It was highly informative as far as we were concerned, and showed, incidentally, much about the physical aspects of the work of the comparators, including topping. We agreed with the claimants, however, that it showed that Mr Todd was required by the respondent not to “bend” or “stoop” when lifting and carrying. We concluded in the circumstances that the work of handballing was best Case Numbers: 3304495/2018 & others 292 seen in the light of its purpose, which was to move products from one pallet to another, and in the light of D9/535.

[69]D9/535 showed that the contents of paragraphs 6.256 and 6.257 of the EVJD were, contrary to what the claimants submitted, apt in their entirety.

[70]The claimants’ proposed words for paragraphs 6.261 of the EVJD were more apt than those proposed by the respondent.

[71]The respondent’s opposed words for paragraph 6.263 of the EVJD were inapt given what we say in paragraph 23 above.

[72]On reconsideration, we concluded that the words proposed by the respondent for paragraphs 6.268-6.270 to which the claimants objected were of some (albeit marginal) relevance, and therefore those paragraphs are incorporated in the respondent’s proposed words. Re-checking and grid walking; paragraphs 6.274-6.343 of the EVJD

[73]We thought originally that the differences between the parties about paragraph 6.275 of the EVJD were minor. When reconsidering the parties’ contentions on paragraph 6.275, we came to the same conclusion. However, we also concluded that we should say the following things about paragraph 6.275. The new sentence proposed by the claimants “He would also work through exception reports that were provided to him” reflected the content of the rest of the section of the EVJD, as well as paragraph 144 of Mr Todd’s witness statement at E3/3/31, on which the claimants relied, so the new sentence was both uncontroversial and probably unnecessary repetition. Paragraph 6.275 of the EVJD was really about the extent to which Mr Todd worked without supervision. In paragraph 110 of Mr White’s witness first statement, at E4/21/23, he said this. “I think the original wording [of paragraph 6.275 of the EVJD] is correct to the extent that he is not told how to go about doing the job but if he were seen to be messing around or if there were lots of problems not being resolved then I would expect him to be pulled up on that. There was a checklist, known as a “DILO” (day in the life of) for Grid Walkers which set out over a 24-hour cycle what a Rechecker/Grid Walker was expected to do over the course of a shift (see the example at Exhibit TW1 page 1).”

[74]That exhibit page was at D9/178. It looked prescriptive to us. In the circumstances we found the words of paragraph 6.275 of the EVJD to be of little value. We accepted that D9/178 was what it purported to be, and we accepted the passage from Mr White’s witness statement which we set out in the preceding paragraph above. Those findings (which, in case there can any doubt about it, we now state are incorporated here) meant that paragraph 6.275 of the EVJD was not required and it is accordingly not incorporated.

[75]Paragraphs 6.274 and 6.276-6.343, of the EVJD are incorporated subject to Case Numbers: 3304495/2018 & others 29375.1 what we say in paragraphs 781-785 on pages 576-577 of our second reserved judgment (as corrected by paragraph 208 on page 59 above: the references in paragraph 782 to Mr Pratt should have been to Mr Todd);

75.2 what we say in paragraphs 209 and 210 on pages 59-60 above; and

75.3 what we say in the following two paragraphs below, which were the result of a further consideration of paragraphs 6.274-6.343 of the EVJD.

[76]Paragraph 6.278 of the EVJD was of some, but very marginal, significance. Its significance was not that it showed that Mr Todd was especially able but that there was a need for a meticulous approach in the doing of the work of rechecking and grid walking.

[77]Paragraph 6.290 of the EVJD was not all fairly encapsulated by the claimants’ proposed words for it. The word “continuously” was, of course, not apt, though. The respondent’s proposed words were in our view apt if shorn of some text (including “continuously walking between Pallet locations and”). The text of paragraph 6.290 of the EVJD should be as follows. “The nature of the job holder’s activities, the distances between different pallet locations (up to 200 metres) and the fact that he could move through those pallet locations multiple times during the course of a single shift on rechecking, meant that the job holder was on his feet at all times throughout the entirety of his shift. He walked an average of 20,000 steps in a full shift.” Battery changing Craned battery changes

[78]What we say in paragraphs 786-787 on page 578 of our second reserved judgment is incorporated here. So, paragraphs 6.344-6.353 and 6.356-6.362 of the EVJD, read with paragraphs 786-787 on page 578 of the judgment, are incorporated here. Layermaster truck battery changes

[79]Paragraphs 6.364-6.373 of the EVJD, read with what we say in paragraphs 788 and 789 on pages 578-579 of our second reserved judgment, are incorporated here. Battery conditions and safety

[80]The substance of paragraphs 6.374-6.376 of the EVJD was the same as the substance of paragraphs 6.538-6.540 of the EVJD for Mr Pratt. What we say in paragraph 710 on page 557 of our second reserved judgment applied to those paragraphs of the EVJD for Mr Pratt and therefore applies to those paragraphs of the EVJD for Mr Todd. Case Numbers: 3304495/2018 & others 294

[81]Similarly, battery acid spillage, to which paragraphs 6.377-6.379 of the EVJD applied, is covered by what we say in paragraph 115 of appendix 11, at page 270 above. Inside pallets

[82]Paragraphs 6.380-6.392 of the EVJD, read with what we say in paragraph 701 on page 555 of our second reserved judgment and paragraph 790 on page 579 of that reserved judgment, are incorporated here. “Setup and Standards”

[83]Paragraphs 6.394-6.399 of the EVJD are incorporated here. For the avoidance of doubt, the additional words proposed by the claimants for paragraph 6.399 were irrelevant and are not incorporated. Food hygiene

[84]While, technically speaking, we did not need to say this, we remind the parties that what we say in paragraph 53 of appendix 7 on page 214 above, among other things incorporating D9/450 in that appendix and those which follow, including this one, is applicable here and was a rather better statement of the requirements of Mr Todd in relation to food hygiene than what was said in paragraphs 6.406-6.414 of the EVJD. Case Numbers: 3304495/2018 & others 295 Appendix 13 The work of Mr Pustula and the conditions in which he did it Introduction 1 Paragraph 792 on pages 579-580 of our second reserved judgment is incorporated here. 2 G94.4 stated the work of Mr Pustula for the purposes of section 65(6) of the EqA 2010 in more detail. That had this text in it on the right hand side of the page. “Between the start of the Relevant Period and 9th August 2014 in addition to Assembly Assignments the job holder undertook:• Management of MUs (18 ‘full or majority’ shifts and 3 part-shifts)

• Dekit (2-3 shifts per month – predominantly for the whole shift)

• Set up and Standard (1 full shift and 20 part-shifts) From 9th August 2014 (data only until end of February 2018) in addition to Assembly Assignments the job holder undertook:

• Management of MUs (356 ‘full or majority’ shifts and 72 part-shifts)

• Dekit (to 2016 only) (2-3 shifts per month – predominantly whole shift)

• Set up and Standard (18 full shifts and 41 part-shifts)

• Inside Pallets (6 part-shifts)”. 3 We did not understand those figures to be challenged by the claimants, and on reconsideration we could see that we had erred in concluding, in paragraphs 815 and 816 on pages 585-586 of our second reserved judgment, that there was anything between the parties on the figures. That was because the claimants had (as we record in paragraphs 331-332 on page 87 above) in producing the spreadsheet at D2/9.1, relied on the figures given by the respondent which led to G94.4. In any event, we saw no reason to change the conclusion which we stated in paragraph 816 on pages 585-586 of our second reserved judgment, which was that the figures set out in paragraph 813 on page 585 of that judgment were sufficiently reliable to be accepted by us. 4 We have already considered all of those tasks referred to in G94.4 and set out by us in paragraph 2 above, and made what we consider to be ample conclusions on the facts relating to them, except the management of MUs (and as we say in paragraph 35 of appendix 12 on page 280 above, an MU, or merchandising unit, was stated at Case Numbers: 3304495/2018 & others 296 D9/354/3 to be “a display cage or box that can be wheeled or placed onto a store floor or shelf without being unpacked”). For convenience, we now record that

4.1 assembly in a fresh DC is dealt with in paragraphs 85-102 of appendix 11 on pages 261-268 above;

4.2 dekitting in relation to a fresh DC is dealt with in paragraphs 25-28 of appendix 11, on page 249 above;

4.3 set up and standard[s] in relation to a fresh DC is dealt within paragraph 110 of appendix 11 on page 269 above; and

4.4 inside pallets in relation to a fresh DC is dealt with in paragraphs 107-109 of appendix 11 on page 269 above. 5 In addition, we considered all of those aspects of the work of Mr Pustula as described in the EVJD for him as it stood by the time of closing submissions (to which we refer in this appendix simply as “the EVJD”) in our second reserved judgment. We did so in paragraphs 793-818 on pages 580-586 of that judgment and in paragraphs 830-854 on pages 590-595 of that judgment. That was done on the basis summarised by us in paragraph 43 on page 21 above. 6 However, consistently with what we say in paragraph 53 on page 25 above, we concluded that we should state in this appendix the work of Mr Pustula for the purposes of section 65(6) of the EqA 2010, including by incorporating parts of other documents and by applying the conclusion which we state in paragraph 52 on pages 24-25 above. 7 Before revisiting the EVJD for Mr Pustula and stating such further things as we concluded should be stated in this appendix, we record that we revisited all of the paragraphs of our second reserved judgment to which we refer in paragraph 5 above when carrying out this reconsideration. Having done so, we concluded that those paragraphs of our second reserved judgment should be incorporated here, as, of course, should be the parts of appendix 11 to which we refer in paragraph 4 above, subject to what we say in this appendix (both above and below). Battery change 8 On reconsideration, we saw that in paragraphs 811-812 on page 584 of our second reserved judgment, we wrongly said that the claimants had not challenged the content of paragraph 3.28 of the EVJD. In fact, they had, having proposed this instead: “The job holder monitored battery levels on all MHE he used throughout his night shift and undertook battery changes as necessary. Battery changes could be required as frequently as once per shift or, subject to battery condition, up to once a week. The time taken to undertake battery changes was included in his measured time for Assembly.” Case Numbers: 3304495/2018 & others 297 9 However, a slightly different picture was shown by what was said in paragraphs 6.359 and 6.360 of the EVJD, which were about doing craned changes of the battery on a loading truck, and, in line with our conclusions stated in paragraphs 723 and 730 on pages 560-561 and 563 respectively of our second reserved judgment, we accepted what the claimants proposed for paragraph 6.359 of the EVJD which, for convenience, was this. After he had been trained to use the battery crane in February 2016, when using his Loading Truck as part of the management of MUs, the job holder also had to change the batteries on his Loading Truck. When deployed on the Management of MUs, the job holder was also regularly asked to assist with the changing of batteries on the Loading Trucks of other loaders who had not been trained to do so themselves. Before February 2016, the job holder had to take his Loading Truck to the battery bay and someone else would change the battery for him. 10 Paragraph 6.360 of the EVJD was agreed, but it had to be amended slightly as a result of our acceptance of those words for paragraph 6.359. As amended by us, paragraph 6.360 was as follows. On average, after February 2016 he had to carry out a craned battery change once or twice every shift. It typically took 6 - 10 minutes. While using the Ride On PPT when deployed on Inside Pallets, the job holder may also have had to change the battery during the course of his shift. 11 Otherwise, and understandably, the section of the EVJD for Mr Pustula which dealt in detail with battery changes and related things (paragraphs 6.340-6.381) was in almost the same terms as that of Mr Pratt (on which we make our findings of fact in paragraphs 111-115 of appendix 11, on pages 269-270 above). Assembly 12 Given what we say in paragraph 215 on page 61 above, paragraphs 6.132 and 6.133 of the EVJD are to be replaced by this text, which the claimants proposed for paragraph 6.132 along with the deletion of paragraph 6.133: “If the job holder was allocated a ‘paper pick’ Assignment, a situation where Stock could not be traced in the system but was allocated for delivery to stores, the job holder would be told by a manager which store locations to assemble the stock to and how many units to put in each location. If the job holder was running out of product before the end of the list of stores, he tried to put at least one unit in each of the remaining stores.” 13 As for paragraph 6.134 of the EVJD, which was about the frequency with which such assignments were done by Mr Pustula, as we say in paragraphs 216-217 on pages 61-62 above, they were done “regularly”. Case Numbers: 3304495/2018 & others 298 Management of MUs Introduction 14 We incorporate here paragraphs 6.205-6.263 of the EVJD read with paragraphs 819- 829 on pages 586-590 of our second reserved judgment and subject to what we say in the following paragraphs (15-25) below. “Ensuring Safe Accessibility to Holding Areas”; paragraphs 6.239-6.245 of the EVJD 15 We said in paragraph 827 on page 588 of our second reserved judgment that we did not need to resolve the parties’ disputes about paragraphs 6.242 and 6.244 of the EVJD, and it might be thought from what we said in paragraph 827 on pages 588– 589 of that judgment that we did not resolve the parties’ dispute in relation to paragraph 6.245 of the EVJD. What we say in paragraphs 221-223 on pages 62-63 above applies here, namely that

15.1 we now accept that there were five seasonal periods when it was necessary to tidy/move around Danish trollies, and

15.2 we had already dealt with the one aspect of the dispute, by clarifying what was involved in making the area tidy or alternatively organising it in the manner contended for by the respondent. We did so in paragraphs 824 and 827.3 on pages 587-589 of our second reserved judgment. 16 Nevertheless, that did not deal expressly with all of the disputes maintained in relation to the work of Mr Pustula described as the management of MUs and as stated in paragraphs 6.239-6.245 of the EVJD. However, on reconsideration we found ourselves coming to the same conclusions about the content of those paragraphs as we did when we wrote our second reserved judgment. The only thing which we thought on reconsideration we needed to add to what we say above in this appendix concerned the disputes about paragraphs 6.239 and 6.241 of the EVJD. In case it was not clear, we now make it clear that the bullet points which we set out in paragraph 824 on page 588 of our second reserved judgment were in our view a better statement of the aspects of the work which the respondent called the management of MUs which were the subject of dispute in paragraphs 6.239 and 6.241 of the EVJD than the disputed parts of those paragraphs. “Maintaining Aisle Standards” 17 When we revisited the work described by the respondent as the management of MUs, it struck us that paragraph 3.20 of the EVJD (to which we referred in paragraphs 794-796 on page 580 of our second reserved judgment) was opposed by the claimants in part through some proposed replacement words (set out in paragraph 795 on page 580 of that judgment) which related only to the management of MUs, and that paragraph 3.20 of the EVJD as drafted referred to more than just the management of MUs. It also referred to Mr Pustula being “responsible for ... [1] maintaining the required standards in the Aisles within the +12 Chamber [and 2] Case Numbers: 3304495/2018 & others 299 managing the space available for ... ( ... other UOD) storage across the +12 Chamber”. Those additional tasks were not supported by paragraph 402 of Mr Bates’ witness statement, which was, as quoted by the respondent in its closing submissions in support of paragraph 3.20 of the EVJD, in these terms. ‘Mr Bates’ evidence was that, “…as there was no handover from [RP] at the end of the shift….[RP] had to make sure that he left the area clean and wellorganised so that the Loaders….could easily locate and collect what they needed. There was more to this than simply keeping those areas tidy.” 18 Those words of Mr Bates were the basis of the claimants’ proposed replacement words for paragraph 3.20 of the EVJD. However, as ever, the important part of the EVJD was the detailed part where the summarised work was described. Paragraphs 6.246-6.250 of the EVJD were under the heading “Maintaining Aisle Standards”, and the substance of them was agreed. Paragraph 6.247 in particular showed that the work was more than just keeping “areas tidy”. We now observe that what was said in that paragraph was a slight development of the bullet points set out by us in paragraph 824 on page 588 of our second reserved judgment. In any event, paragraph 3.20 of the EVJD was in reality a repetition by way of a summary, so the key part of the EVJD was the parts of paragraph 6 of the EVJD which dealt with the areas of work in question. Those were paragraphs 6.239-6.250 and 6.253-6.257. 19 We should say that the respondent’s closing submissions showed that it thought that paragraph 6.248 of the EVJD was agreed, but that the claimants objected to the figures in the paragraph on the basis that those figures were unreliable. The paragraph in the terms which the respondent thought were agreed was as follows. “All Dollies loaded with 18 ‘heavy’ Trays could weigh in excess of 180kg; on average, Dollies despatched from the DC weighed 132kg. The average weight of a fully assembled Cage was 149kg.” 20 In paragraph 20 of appendix 1, on page 91 above, we incorporate paragraph 51 on page 46 of our second reserved judgment. Paragraph 51 was in these terms (the italics being in the original). “[247] A single green tray full of products on a dolly could weigh up to 24.4kg but the average weight was [we accepted that this was the best indication before us and concluded that we should accept it as accurate, despite the fact that it was not properly proved: for example it was stated in paragraph 5 of the second witness statement of Mr Pratt, but only on the basis of what he had been told by the respondent’s representatives, not even the person who had extracted the data] 8.4kg. A dolly with two stacks of nine trays could weigh in the most extreme circumstances up to 360kg. However, the average weight of a dolly leaving a Fresh DC was 132kg.” 21 On the second page of the document at pages 130-134 of the bundle of documents accompanying the respondent’s application for reconsideration, i.e. on page 131 of that bundle, it was said that “The average tray weight, including the weight of the Case Numbers: 3304495/2018 & others 300 plastic tray, is 8.21kg.” On page 132 of that bundle, this was said: “There is a maximum tray weight setting for suppliers of 23kg.” That meant that if there were 18 trays on a dolly, then the maximum weight was 414kg. In addition, if paragraph 51 on page 46 of our second reserved judgment was accurate, then the respondent understated in paragraph 6.248 of the EVJD the potential demands of moving dollies. This helped to confirm to us the need for caution in regard to the determination of the demands of work for the purposes of section 65(6) of the EqA 2010, where statistical evidence was involved. We reflected in that regard also that the large number of factual issues before the parties and us might have led to inconsistencies in the evidence and our conclusions. In any event, there was no justification in the circumstances before us for rejecting the content of paragraph 6.248 of the EVJD. The work of “dekitting” as described in paragraphs 6.264-6.317 of the EVJD for Mr Pustula 22 We saw on reconsideration that we had said in paragraph 831 on page 590 of our second reserved judgment that “We did not accept [Mr Pustula’s] evidence in support of what was said in paragraphs 6.271-6.284 of his witness statement.” The final three words of that sentence were intended to be “the EVJD for him”. 23 Also on reconsideration, we considered whether we had failed to take fully into account the possibility of Mr Pustula not having understood the questions which he was asked on 15 June 2022 as we record at the start of paragraph 830 on page 590 of our second reserved judgment. However, having re-read pages 74-75 on D2/7/19, we could not see any alternative conclusion, but we did see that Mr Pustula said that he was trained on how to put in place a dock leveller. As a result, we thought that we should conclude that it was part of his work if necessary to put in place a dock leveller, although in practice he did not need to do it. 24 We did not, in our second reserved judgment, resolve the dispute about paragraph 6.268 of the EVJD. That was because we did not at that time think that the resolution of the dispute would affect the assessment by the IEs of the demands of the work of a dekitter (or a loader or an unloader). In addition, we referred to the dispute in paragraphs 344-348 on page 472 of our second reserved judgment, in relation to the EVJD for Mr Hornak. The dispute was about whether or not the words “being careful” added anything to the description of the task of driving a loading truck to the allocated loading bay and parking it at least 2 metres clear of the bay door. In paragraph 344 on page 472 of our second reserved judgment, we set out paragraph 6.56 of the EVJD for Mr Hornak. Paragraph 6.268 of the EVJD (i.e. for Mr Pustula) was in these terms, in which we have underlined the words which appeared in both of those paragraphs of the EVJDs. “Having received instructions from his Manager to undertake Dekitting, the job holder drove a Loading Truck to the allocated loading Bay, being careful to park it at least 2 metres clear of the loading Bay door to avoid the risk of collision between his Loading Truck and the Bay door equipment.” Case Numbers: 3304495/2018 & others 301 25 The SSOW to which we referred in paragraph 346 on page 472 of our second reserved judgment (at D1/3/17) did not say in terms that there was a need to take care, but it did say that “The Loader must stop and get off their MHE at least 2 metres clear of the bay door controls to prevent collisions between MHE and the bay door control area.” What we did not do in our second reserved judgment is say whether the words “being careful” were aptly included in paragraph 6.56 of the EVJD for Mr Hornak and therefore in the same words in any other EVJD. On reconsideration, we concluded that we should do so. On reconsideration, we concluded that

25.1 it was a requirement of the work of any driver of any MHE to any of the respondent’s DC bay doors to ensure that the MHE was parked at least 2 metres clear of the door and its control equipment,

25.2 there was an implied obligation to do that with reasonable skill and care,

25.3 the use by the respondent of the word “carefully” was intended to make it seem that the skill required was significant,

25.4 the SSOW at D1/3/17 did not use either the word “careful” or the word “carefully”,

25.5 the words that we set out in paragraph 346 on page 472 of our second reserved judgment referred only to the loader stopping and getting off the MHE “at least 2 metres clear of the bay door controls to prevent collisions between MHE and the bay door control area”, not the MHE itself being stopped so that it was at least 2 metres clear of “the bay door control area”,

25.6 in all of the circumstances, the words “being careful” added nothing material, and

25.7 the way in which the relevant work should have been stated in paragraph 6.268 of the EVJD for Mr Pustula was (without capital letters at the start of words except at the start of the sentence) as follows: “Having received instructions from his manager to undertake dekitting, the job holder was required to drive a loading truck to the allocated loading bay and, in order to avoid a collision between the truck and the bay door control area, park it at least 2 metres clear of the bay door control area.” Case Numbers: 3304495/2018 & others 302 Appendix 14 The work of Mr Young and the conditions in which he did it Introduction 1 Paragraphs 855-862 on pages 596-597 of our second reserved judgment are incorporated here. 2 On reconsideration, we realised the statement of the work of Mr Young in G94.2 was relevant and needed to be taken into account if it affected the analysis in those paragraphs of our second reserved judgment. In the right column on the right hand side of the page, this was said. “Across the whole of the Relevant Period, job holder was deployed as follows (overall average % plus, in brackets the minimum and maximum percentage in each 12-month period) FLT Operation– 76.4% (58.0% to 89.4%). This included: 1) Assisting with the Goods In functions of lifting laden double height Pallets and MUs – at least twice a week (EVJD 6.171). 2) Recovery and transportation of defective MHE – on average three times a month (EVJD 6.175). 3) Recovery and transportation of fallen batteries – roughly once a month (EVJD 6.183). The balance of time on FLT Operation was spent on Pallet clearance and loading. Assembly -22.3% (10.0% to 40.3%)”. 3 We have already considered the work of assembly in a fresh DC with some care. It is dealt with in paragraphs 85-102 of appendix 11 on pages 261-268 above. Given what we say in paragraph 53 on page 25 above, those paragraphs apply to the assembly work of Mr Young. We have nevertheless in what follows considered some of the disputes maintained in relation to the part of the EVJD for Mr Young concerning assembly. We have done that where we thought that the dispute should be resolved if only for the avoidance of doubt. 4 In addition, having considered the rest of the work of Mr Young with some care in paragraphs 863-960 on pages 597-619 of our second reserved judgment, we incorporate those paragraphs here, subject to

(1) what we say in paragraphs 224- 226 on page 63 above,

(2) paragraphs 232-233 on pages 64-65 above, and

(3) what we say below. Case Numbers: 3304495/2018 & others 303 A re-iteration and/or clarification 5 As for the EVJD for Mr Young as it stood by the time of closing submissions (in this appendix, “the EVJD”), while we noted with bemusement the suggestion that Mr Young was in some way responsible for the whole of the stock of the warehouse at which he worked (as stated in paragraph 2 of the EVJD), we saw that the claimants had disputed most of that paragraph. We have not incorporated that paragraph explicitly here in any way, but on the basis stated in paragraph 54 on pages 25-26 above, the parts of it to which the claimants did not object can be taken into account by the IEs. A good example of the approach which we have stated in paragraph 54 on pages 25-26 above is our silence below about the disputes maintained in relation to paragraphs 6.126-6.128 of the EVJD. Another is our silence below about the disputes maintained in relation to paragraphs 6.164-6.187 of the EVJD, to which we refer in this appendix only by incorporating via the preceding paragraph above paragraphs 881-882 on pages 602-603 of our second reserved judgment, which of course also incorporates the heading to those paragraphs. We add by way of further clarification that (1) we have in the course of reconsideration realised how evidentially important the videos to which we refer in paragraph 23 of appendix 7 on page 207 above are, and (2) for example paragraph 6.173 of the EVJD is a pale shadow of the evidence in for example D9/511 and D9/512, both of which are incorporated here via paragraph 23 of appendix 7 on page 207 above. In most respects our conclusion should already have been apparent from our earlier approach. A good example in that regard is paragraph 6.53 of the EVJD, which was (as was frequently the case) a single sentence, which the claimants said should be deleted, namely: “When undertaking the count, the job holder was required to concentrate and remain focussed.” In paragraphs 844 and 845 on page 593 of our second reserved judgment, we stated a general approach which, if applied to paragraph 6.53 of the EVJD, would have resulted in the latter’s deletion because it, i.e. paragraph 6.53, added nothing material to paragraph 6.52 of the EVJD. Pallet collection, transportation and stacking 6 Paragraphs 6.136-6.158 of the EVJD are incorporated here subject to what we say below and in paragraphs 876-880 on pages 600-601 of our second reserved judgment. 7 We concluded that (1) the claimants’ opposition to paragraph 6.87 of the EVJD had led to an unfairly narrow statement of the aspect of the work of Mr Young described in that paragraph, and (2) that the paragraph should stand as proposed by the respondent. 8 The same was largely true of paragraph 6.93 of the EVJD, although there was some overstatement in that paragraph resulting from the use of the word “responsibility”. That is because if one is given a task to do then one is always responsible for it. We say that in paragraph 73 on page 26 of our second reserved judgment. Paragraph 6.93 in fact probably added at best only very little, but with that significant reservation, it stands. Case Numbers: 3304495/2018 & others 304 9 If paragraph 6.98 of the EVJD were omitted then the factual picture would be less clear. The idea, however, that there was a decision to make over-stated the demands of the work. Mr Young plainly needed to be aware of the location(s) and number of the different types of pallets, and then to apply that knowledge in saying to the Goods In Office staff where the driver should park his or her trailer. Those factual findings replace paragraph 6.98 of the EVJD. 10 Paragraphs 6.106 and 6.107 of the EVJD were in our judgment apt, given our conclusion stated in paragraph 389 on page 484 of our second reserved judgment (and confirmed in paragraphs 871-875 on pages 599-600 of that judgment in relation to paragraphs 6.122-6.124 of the EVJD). Paragraph 6.108 of the EVJD as proposed by the respondent by the time of closing submissions was inconsistent with paragraph 389 on page 484 of our second reserved judgment, however, unless it would be safe to use a manual pump truck instead of a loading truck. We could not see any circumstances in which that might be so, and the oral evidence of Mr Young in support of the proposition that he on occasion used one of those two kinds of MHE in the circumstances described in paragraph 6.108 (recorded on pages 44-47 of the transcript of day 32) was weak. Given that all that would be required to avoid the risk would be to get the hygiene team in to dry the trailer, or to do it oneself, we concluded that paragraph 6.108 of the EVJD should not be incorporated. 11 While the first sentence of paragraph 6.116 of the EVJD added nothing material, the second, as amended, did. The necessary fact that we found was as follows. “Mr Young had to take care to avoid damage to the side of the trailer in which he was using a loading truck to place pallets, while at the same time ensuring that each stack and each row of pallets in the trailer was aligned tightly in order to achieve the trailer’s maximum capacity.” 12 Paragraph 6.131 of the EVJD was partly apt and partly an exaggeration. For the avoidance of doubt, it should be read with what we say in paragraphs 525 and 526 on page 516 of our second reserved judgment. 13 Paragraph 6.143 of the EVJD is incorporated but only on the basis that it is read with what we say in paragraphs 844 and 845 on page 593 of our second reserved judgment and assessed by the IEs in the same way as is stated in paragraph 845 on that page in relation to paragraph 6.307 of the EVJD for Mr Pustula. 14 Paragraph 6.155 of the EVJD over-stated the difficulty of the work a little less than paragraph 6.143 did. Paragraph 6.155’s words should (we concluded) be these. When loading pallets onto a curtain sided trailer with a rigid roof, the driver removed the curtains prior to loading. Mr Young had to take care when loading to avoid the top pallet on each stack making contact with the roof of the trailer. He therefore placed a base layer of 5 pallets on to the trailer (as described above) first before then adding a further 10 pallets to complete the stack. Case Numbers: 3304495/2018 & others 305 15 After viewing the final part of the video at D9/512, we concluded that the words of paragraph 6.157 of the EVJD were apt, although they were in reality less helpful than that part of that video, all of which video we have incorporated via paragraph 23 of appendix 7 on page 207 above. 16 We observe that as a matter of common sense and obvious inference, Mr Young’s work of the clearing and loading of pallets was likely to be the subject of attention by the DC’s managers. Paragraph 6.159 of the EVJD as a result on one view added nothing material, but since the claimants were content with the words they proposed for that paragraph and they were uncontroversial, those words (i.e. of the claimants) are incorporated here. “Other Fork Lift Truck Duties” 17 Paragraph 6.165 of the EVJD is incorporated here, as are paragraphs 6.167-6.172 and 6.174 of the EVJD. “Recovering and Transporting MHE” 18 Paragraphs 6.175-6.187 of the EVJD, read with paragraphs 881-882 on pages 601- 602 of our second reserved judgment, are incorporated here. Assembly 19 Paragraph 6.243 of the EVJD referred to the relevant pages of the AMC guide (i.e. D4/2/25-27) and they were in our view relevant in that they helped to show the concentration required when picking from a single product pallet. That paragraph accordingly stands as proposed by the respondent. 20 Paragraph 6.244 of the EVJD was more problematic, although the claimants accepted something which we did not, which was that the PI rates were relevant. From what the claimants proposed by way of replacement wording for paragraph 6.244, we guessed that the respondent’s performance management system had a built-in, standard, unchanging allowance for contingencies of the sort to which reference was made in the original words of paragraph 6.244 of the EVJD. At this stage (as opposed to at the MFD hearing), given what we say in paragraph 62 on page 23 of our second reserved judgment, those words are irrelevant and they are not incorporated. Paragraph 6.244 of the EVJD is otherwise incorporated. 21 For the avoidance of doubt, what we say in paragraphs 761-765 on pages 571-572 of our second reserved judgment (relating to the description in the EVJD for Mr Todd of counting) applied to paragraph 6.246 of the EVJD (i.e. for Mr Young). 22 Paragraph 6.248 of the EVJD referred to “page 23 of the AMC Guide”, i.e. D4/2/23. That did appear to be helpful. We ourselves referred in paragraph 899 on pages 605- 606 of our second reserved judgment to D9/251/4, which referred to the circumstances in which a pallet might be abandoned. D4/2/23 added something Case Numbers: 3304495/2018 & others 306 material to what was said on D9/251/4. Paragraph 6.248 of the EVJD therefore stands. 23 In contrast, we could not see why reference was made in paragraph 6.256 of the EVJD to “page 29 of the AMC Guide”. The final sentence of that paragraph is therefore not incorporated. The same was true of paragraph 6.270 of the EVJD: page 32 of “the AMC Guide”, i.e. D4/2/32, did not illuminate or add to the subject-matter of paragraph 6.270 of the EVJD. Multiple unit assembly 24 Paragraph 6.289 of the EVJD was in reality something of an exaggeration. That is because it was in our view obvious, or implicit, that counting up to 99 (the number stated at the end of paragraph 6.288 of the EVJD) would require more sustained concentration than counting up to six. Even the words proposed by the claimants for paragraph 6.289 of the EVJD were no more than in reality a repetition of paragraph 6.288 of the EVJD. Paragraph 6.289 is therefore not incorporated. 25 We doubted that paragraph 6.290 of the EVJD was unclear, but for the avoidance of doubt, we accepted the claimants’ proposed replacement words for that paragraph. Paper pick assignments 26 Our correction of paragraph 903 on page 606 of our second reserved judgment, stated in paragraph 232 on pages 64-65 above (read with paragraph 215 on page 61 above) applies here. Assembling trays 27 Our conclusion on reconsideration as a result of the respondent’s application in relation to our findings in paragraphs 904-905 of our second reserved judgment is stated in paragraph 233 on page 65 above. Paragraph 6.298 of the EVJD is to be read as referring to paragraph 3.19 of the AMC user guide for picking by line which was sent to us as described in paragraph 77 on pages 27-28 of our second reserved judgment. That paragraph is on pages 3-66 to 3.69, which are pdf pages 104-107, of that document. For the reasons stated in paragraph 233 on page 65 above, we incorporate here paragraph 3.19 of the AMC user guide for picking by line. Restacking of cages 28 Plainly, it was part of the work of an assembler in a fresh DC to restack cages. To the extent that paragraphs 6.308-6.316 of the EVJD stated when that was done in practice by Mr Young, those paragraphs contained relevant factual assertions. They also contained relevant factual assertions in so far as they added to what was said in the documents to which we referred in paragraphs 58 and 60-66 on pages 402-403 of our second reserved judgment. We concluded on reconsideration (taking into account what we said in paragraphs 909-911 on pages 608-609 of our second reserved judgment, which we saw no reason to change) that the only relevant Case Numbers: 3304495/2018 & others 307 paragraphs in that section of the EVJD were (1) 6.308, which was in our judgment apt as it stood, (2) 6.315, and (3) 6.316, with, consistently with what we say in for example paragraph 102.15 of appendix 11 on page 267 above, the reference to an average weight of 8.4kg replaced by a reference to an average weight of 8.21kg. 29 In regard to the question of the weights stated in paragraph 6.316 of the EVJD, we were reminded on reconsideration that in paragraph 51 on page 46 of our second reserved judgment, we approved of the words proposed by the claimants for paragraph 247 of the EVJD for Mrs Worthington by the time of closing submissions. We consider that paragraph and the impact of the document at pages 130-134 of the bundle of documents accompanying the respondent’s application for reconsideration in paragraphs 20 and 21 of appendix 13 on pages 295-296 above. “Unit Integrity / Damage”; paragraphs 6.317-6.322 of the EVJD 30 On reconsideration, we concluded that paragraph 6.317 of the EVJD added nothing material. In fact, it made no sense in itself, as handling something safely could be justified on many bases, and not just to avoid “the risk of fluid spillages”. The claimants’ proposed words (“The job holder ensured at all times that Units were handled safely”) were presumably proposed out of a desire to achieve compromise, but they too had no practical meaning here. Paragraph 6.317 is therefore not incorporated. 31 Paragraph 6.318 of the EVJD, however, was in our judgment an apt statement of an important aspect of the work of an assembler. One problem with it, however, was that it overlapped with paragraph 6.319 of the EVJD, and the words of the latter paragraph were in our view an over-complication. In addition, as far as we could see on reconsideration, as we say in paragraph 102.16 of appendix 11 on page 267 above, whatever was said about unit integrity and damage to products had to be read with rows 76-81 at D9/154/8-9. The first of those rows is in these terms: “If the pallet that is being assembled has damaged products then inform a Warehouse Manager.” 32 The rest of those rows apply where “all items on the pallet have been assembled and all that is left are damaged Team Member products”. That was not the situation with which paragraphs 6.317-6.322 of the EVJD were concerned. 33 In any event, we saw that the relevant paragraphs in the EVJD for Mr Pratt (to which we refer in paragraph 102.16 of appendix 11 on page 267 above; as we indicate there, paragraphs 6.430, 6.431, and 6.434 of the EVJD for Mr Pratt as proposed by the respondent withstood our scrutiny and were incorporated via that subparagraph) were in quite different terms from those of paragraphs 6.317-6.322 of the EVJD for Mr Young. There was no justification for asserting, whether implicitly or explicitly, that the task of looking out for, and dealing with, damaged products in a DC, let alone different types of DC, differed according to the DC in which it was done. The better description of the work was in the EVJD for Mr Pratt. Accordingly, paragraphs 6.317- 6.322 of the EVJD (for Mr Young) are not incorporated, and the work of dealing with Case Numbers: 3304495/2018 & others 308 damaged products in the course of assembly is stated in paragraph 102.16 of appendix 11 on page 267 above. “Closing Cages and Opening new UODs”; paragraphs 6.323-6.338A of the EVJD 34 On reconsideration, we realised that the first part of paragraph 6.323 of the EVJD related to the stacking of a cage. If a cage were stacked badly then there might well not be enough room for something which should have fitted within the cage but did not do so in the manner described in paragraph 6.323 of the EVJD. That was clear from what we say in paragraphs 60 and 61 on pages 402-403 of our second reserved judgment. So, paragraph 6.323 of the EVJD was not really apt as it stood. Rather, it had to be read in the light of the documents referred to by us in paragraphs 60-66 on pages 402-403 of our second reserved judgment, so that the part of paragraph 6.323 of the EVJD which referred to the physical task of closing a cage (and paragraphs 6.324-6.325 of the EVJD, which were about the same thing) in our judgment had to be regarded as being applicable only when a cage was full after being stacked properly. 35 In any event, on reconsideration we could see that the document to which we refer in paragraph 917 on page 610 of our second reserved judgment, which was at D9/539 and was entitled “Safe Strapping of Roll Cages”, was rather more helpful at stating the work of closing a roll cage than paragraphs 6.323-6.325 of the EVJD. 36 Therefore, paragraphs 6.323-6.325 of the EVJD are not incorporated, and are replaced by (1) what we say in paragraph 34 above and (2) D9/539. 37 Paragraph 6.326 of the EVJD, however, fleshed out the box at the top of D9/255/23, although the proposition (stated in paragraph 6.326) that it was necessary to “carefully [check] the route ahead” was another example of stating the obvious. It was also obvious that the assembler would need to seek to avoid crashing the cage, or injuring a hand (or any other part of his body) “on other objects, e.g., UODs”, and that those things were rather more likely if the assembler failed to act “carefully” (which was the only word in paragraph 6.326 to which the claimants objected). With those caveats, paragraph 6.326 as drafted by the respondent stands. 38 Paragraph 6.327 of the EVJD (“That also created space in the Aisle for a new Cage, which the job holder and other Warehouse Operatives could continue to assemble into”) was agreed. As a statement of fact, it was obviously correct. But was it material? At this stage we concluded that it was no more than explanatory, or background, rather than a material fact relating to the work of an assembler. 39 Paragraph 6.328 of the EVJD related to the sizes of cages used. That was relevant, as far as we could see, to the work of any assembler and it could have been stated once and once only in the EVJDs. It could have been stated in an EVJD of a sample claimant (because it was relevant to the work of at least some of them) and then agreed. Instead, we had multiple references to the sizes of the cages. In fact, the size of the cages was relevant only to their manoeuvrability, but their manoeuvrability was probably more affected by their weight than by their size. By way of example, the Case Numbers: 3304495/2018 & others 309 sizes and weights of cages were in effect combined by the claimants (correctly, in our view) in paragraphs 41-44 on page 45 of our second reserved judgment, in relation to the work of Mrs Worthington. Simply for the avoidance of doubt, however, and for convenience, we record here that the dispute about paragraph 6.328 of the EVJD was only about the reason for discontinuing “narrower (red based) Slim Line Cages”, which was stated by the respondent to have been that “their narrower base combined with poor wheel design meant they were extremely unstable and regularly toppled over.” It was odd that the respondent should now be saying that some of its earlier probably carefully-chosen equipment was “extremely” unstable: we suspected that that was an exaggeration for the purposes of these proceedings. We did, however, see a red-based slim line cage 7 minutes 22 seconds into the video at D9/535, and it did look to be a little unstable. Paragraph 6.328 of the EVJD is incorporated with that observation applied to it. 40 Paragraph 6.329 of the EVJD (for Mr Young) contained claimed figures for the average weights of cages and dollies despatched from the DC at which Mr Young worked, i.e. Didcot. The figure in paragraph 6.329 originally proposed for the average weight of a dolly was 132kg but by the time of closing submissions it was said to be 135kg. Originally, paragraph 6.329 of the EVJD asserted that the average weight of a cage despatched from Didcot was 149kg. By the time of closing submissions that figure was 159kg. The claimants opposed all of those figures on the basis that they were unreliable. By the time of writing this paragraph, we had concluded that the maximum weights of UODs was relevant: irrespective of what the IEs think, we concluded that those weights were relevant. Those maximum weights were agreed, but not recorded fully in paragraph 6.329 of the EVJD. We have now, in paragraphs 148-155 on pages 47-48 above, addressed the issue of the weights of UODs. We suggest that the maximum weights of UODs are now clear, and that the figures relating to the average weights advanced by the respondent are likely to be at least roughly correct. We add too that we will require some convincing that a difference between, say, 135kg and 132kg is material in relation to the average weight of a UOD, or even that a difference between 149kg for the average weight of a cage leaving a fresh DC (as recorded by us in paragraph 42 on page 45 of our second reserved judgment and as proposed by the respondent originally in paragraph 6.329 of the EVJD for Mr Young) and 159kg (the figure proposed by the respondent for paragraph 6.329 of the EVJD for Mr Young by the time of closing submissions) would be material for present purposes. 41 At this point, we considered that the only fair and just way to proceed, if the IEs consider that the average weight being 159kg rather than 149kg is material, is for us to invite the respondent to put before the claimants and us some cogent evidence, which is likely to be drawn from the respondent’s digital systems, on the question of average weights of various UODs. 42 As far as the other relevant paragraphs of the EVJD concerning closing cages and opening new UODs were concerned, namely 6.330-6.338 (for the avoidance of doubt ignoring paragraph 6.338A for the reason given in paragraph 68 on page 25 of our second reserved judgment; the same is of course true of the other paragraphs in the EVJD for Mr Young which were to the same effect about some other aspect of his Case Numbers: 3304495/2018 & others 310 work), we need to add here (bearing in mind what we say in paragraphs 915-919 on pages 609-610 of our second reserved judgment) only that

42.1 we found the reference in paragraph 6.332 to D4/2/17 to be helpful, and

42.2 we agreed with the claimants that paragraph 6.337 added nothing material and should not be incorporated. “Shorts and Overs”; paragraphs 6.339-6.343 of the EVJD 43 The parts of D9/154 to which we refer in paragraphs 102.22 and 102.23 of appendix 11 on pages 267-268 above are applicable here. The terms of paragraphs 6.339- 6.343 of the EVJD (for Mr Young) and paragraphs 6.449-6.458 of the EVJD for Mr Pratt differed in only minor ways. That was of course understandable, and in our view it was correct for the task to be regarded as being the same for both of them. However, there was a potentially relevant difference between them. That was the content of paragraph 6.451 of the EVJD for Mr Pratt. It was not as provided for by D9/154. It appeared to us therefore that what was described in paragraph 6.451 of the EVJD for Mr Pratt was not a standard course of action. It also appeared to result from a particular experience of Mr Pratt: that was apparent from paragraph 6.453 of the EVJD for him. That did not appear to us to be part of the work of an assembler, therefore. Certainly, we did not incorporate it here. Paragraph 6.455 of the EVJD for Mr Pratt contained another reference to the practice described in paragraph 6.451 of that EVJD, but applied to “overs”. That (i.e. that part of paragraph 6.455 of the EVJD for Mr Pratt) too was not incorporated in our findings of fact about the work of dealing with an “over”. “Continuous working and part-completed Assignments” 44 By the time of reconsideration, we had concluded that the text from the page copied at D4/2/68 which we set out in paragraph 922 of our second reserved judgment was, after all, relevant and helpful, and that what we suggested as being a material fact in paragraph 923 of that judgment (“that an assembler was not required to finish an assignment by the end of his shift and had to deposit the pallet on which he was working at that time in such place as he was directed to by his AMC”) was a necessary, and not, as we suggested in the second sentence of paragraph 923 on page 611 of that judgment, an “unnecessary detail”. In any event, paragraphs 6.349- 6.352 of the EVJD are all incorporated. Battery changing; paragraphs 6.354-6.390 of the EVJD Changing the battery of a Pedestrian PPT 45 The process of changing a battery in a Pedestrian PPT was, of course, a standard one. We state the work of changing such a battery in paragraphs 112-113 of appendix 11 on page 269 above. The EVJDs for Mr Pratt and Mr Young described those tasks in slightly different words, but not to any different effect as far as we could see. Nor (as we indicate in paragraph 235 on pages 65-66 above) could they Case Numbers: 3304495/2018 & others 311 credibly have differed in any material respect. We did see an additional paragraph in the EVJD for Mr Pratt which might be material. That was paragraph 6.519, which was agreed, and was as follows. “The time required to change the battery on a Pedestrian PPT varied between 3 and 5 minutes dependent upon the difficulty the job holder faced in moving the batteries during the process. If there were delays at the charging station this could increase to 10 minutes.” The use of a battery car at Didcot 46 We mention here for the sake of convenience that otherwise the situation as far as the changing of MHE batteries by Mr Young differed from that of the other fresh DC comparators, because at Didcot, the battery on a loading truck involved the use of a “battery car” rather than (as with for example Mr Pratt) a crane: see paragraph 933 on page 613 of our second reserved judgment. “Clean as you go (CAYG)” 47 On reconsideration, we were reminded that paragraphs 6.441-6.444 of the EVJD for Mr Young asserted things in relation to his work which the respondent denied applied to the work of the sample claimants and that the claimants’ response to paragraph 6.443 of that EVJD included a submission which was inconsistent with its own case in regard to the sample claimants. Paragraph 6.443 as proposed by the respondent was this. “The job holder was required to be alert to spillages e.g., spillages from fallen or damaged foodstuffs and drinks as well as from fresh flowers.” 48 The claimants’ submission in response to that paragraph was that “‘was alert to’ exaggerates what the job holder did – he just kept an eye out for any spillages.” 49 We did not say anything in our second reserved judgment about paragraphs 6.441- 6.444 of the EVJD for Mr Young. That was because paragraphs 6.441, 6.442 and 6.444 were agreed, and because we thought that it had to be clear from our conclusions in regard to the need to be alert to, or vigilant about, detritus or spillages, stated in paragraphs 158-159 on pages 71-72 of our second reserved judgment, that the respondent’s proposed words for paragraph 6.443 were correct. 50 We now record for the avoidance of doubt that all of the sample claimants and all of the comparators were in our judgment required to be constantly alert to the possibility of (1) packaging or other detritus and (2) spillages, and to take appropriate action in that regard as soon as it was reasonably practicable to do so. That appropriate action was stated as far as the comparators were concerned in paragraphs 6.442 and 6.444 of the EVJD for Mr Young and as far as the claimants were concerned in paragraph 159 on page 72 of our second reserved judgment. Case Numbers: 3304495/2018 & others 312 Case Numbers: 3304495/2018 & Others 1 EMPLOYMENT TRIBUNALS Claimants Respondent Ms K Element & others v Tesco Stores Limited

[85]The claimants objected to us stating (in paragraph 327 on page 86 of our reconsideration judgment and paragraph 73 on pages 234-235 of that judgment) in very careful terms what we concluded were real risks from making a mistake in loading or in the use of MHE, but at the same time declining to state for example that if Ms Garrod erred then there was a risk of “injury to herself, colleagues or members of the public (including potentially fatal consequences: food poisoning, allergic reactions, falling / crushing injuries, solvent abuse etc)” on the basis that none of those things were, as we said in paragraph 6 on page 177 of our reconsideration judgment, “out of the ordinary”. We said the latter because in our view it would be obvious to the IEs (as it would be to the reasonably well-informed observer, as it was to us) that those risks Case Numbers: 3304495/2018 & Others 25 arose from the work of a customer assistant doing the work which Ms Garrod did. That was in part because shopping is an everyday activity. In contrast, visiting a DC is not. It could, however, be said that the risks arising from the use of MHE or errors in loading were also obvious, so I accepted when considering this aspect of the claimants’ application for reconsideration that the tribunal’s approach to the spelling out of risks could for that reason be said to have been less than even-handed. However, we had in our reconsideration judgment stated the work of a customer assistant such as Ms Garrod by reference in part to training materials which showed what the work was, and from which it was possible to see what risks arose from doing that work. Good examples of that were our reference to the documents relating to allergens and to baking. The risks arising from the use of an oven really are obvious, and do not need to be spelt out for present purposes, but they were in fact spelt out by us via paragraph 45 on page 181 of our reconsideration judgment. The risks arising from giving wrong information in relation to allergens were in our view also obvious: someone might even die. But we did in fact, in paragraph 50 on page 182 of our reconsideration judgment, refer expressly to the risk of “incorrectly labelled items”, and that paragraph had to be read with what we said in paragraphs 129 and 130 on pages 117-118 of that judgment, where we expressly referred to (and therefore incorporated in our findings of fact) C7/430, and the risks arising from an allergen were stated expressly on page 3 of that document.

[86]In those circumstances, I concluded that there was no reasonable prospect of the claimants’ application to “remove the two paragraphs RJ §327 (p.86) and RJ appendix 8 §73 (p.234)”, stating the impact of an error in the process of loading or the use of MHE, leading to a decision by the tribunal to vary its judgment by such removal. Approved by