Guidance on Reconsideration Applications

Tesco Stores Ltd v Element & others is a major, ongoing equal pay claim (potentially worth £4bn) involving around 49,000 predominantly female store workers claiming they are underpaid compared to mostly male distribution centre workers. Recent 2025-2026 EAT rulings have addressed procedural disputes, expert evidence on pay differences, and the “material factor” defence contained within the equal pay legislation.

In this particular spat ([2026] EAT 33), the EAT held that an employment judge had made a number of errors when dealing with reconsideration applications under the Employment Tribunal Procedure Rules 2024. The EAT went on to identify a number of mandatory steps for employment judges to take when dealing with such applications.

Amongst other things, the EAT confirmed that the initial ‘sift’ decision is a binary determination whereby the employment judge must either (i) dismiss the application (on the ground that there is no reasonable prospect of the judgment at issue being varied or revoked); or (ii) permit the application to proceed, allowing the parties to enter written representations.

In the instant case, the EAT held that the employment judge had made a number of errors. For instance, the employment judge dismissed a reconsideration application as having no reasonable prospect of success, while also acknowledging that certain issues required further consideration. In such circumstances, permission to proceed should have been granted. Further, the sift stage was not a suitable time to express detailed views on the evidence contained in one of the witness statements. The judge should have done no more than issue a permission to proceed notice. He was not entitled to go further.

The EAT therefore allowed the appeals and remitted the case to the tribunal with directions to complete the mandatory reconsideration process.