摘要：I will refer to the appellant as Tesco and the respondents to the appeal as the Leigh Day claimants and the Harcus claimants or, w
Tesco Stores Limited v K Element & Ors
[2025] EAT 43
Judgment approved by the court for handing downTesco v Element and others
Case No: EA-2023-000927-AT
EA-2023-000928-AT
EA-2024-001071-AT
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 28 March 2025
Before:
HIS HONOUR JUDGE JAMES TAYLER
IN CHAMBERS
- - - - - - - - - - - - - - - - - - - - -
Between :
Tesco Stores Limited
Appellant
- and –
Ms K Element & Others
(All Claimants represented by Leigh Day and Harcus Sinclair)
Respondents
In Chambers
JUDGMENT
HIS HONOUR JUDGE JAMES TAYLER
The Parties
1.
I will refer to the appellant as Tesco and the respondents to the appeal as the Leigh Day claimants and the Harcus claimants or, when it is not necessary to differentiate, the claimants.
The proceedings
2.
Tesco have applied to amend the Notice of Appeal in this long-running equal pay litigation. There are now more than 50,000 claimants. Some of the claims were brought as early as 2018.
3.
These appeals arise out of the leadup to, and determinations made at, a stage 2 equal value hearing. The judgment made after the stage 2 equal value hearing was sent to the parties on 5 July 2024.
4.
By a judgment sealed on 10 February 2025, after a Preliminary Hearing held on 27 November 2024, I set down the three linked appeals for hearing. That judgment should be read with this as it sets out the background and briefly explains why the grounds of appeal were permitted to proceed. I also expressed grave concern about the state of the litigation, particularly the delay and proliferation of factual issues. The full hearing is listed for two days on 18 and 19 June 2025.
5.
At paragraph 21 of the judgment I stated:
21.
Section 3.8 of the EAT Practice Direction requires generally that grounds of appeal should be “short and focussed” and “clearly assert errors of law”. Sections 3.9 and 3.10 require that grounds of appeal which assert “perversity” or “procedural impropriety” must provide “full details”. Section 3.10 includes under the heading “procedural impropriety”, “any material procedural irregularity”. That requires particularity of each dispute rather than the provision of “examples”. In any event, I consider where it is asserted that an error of law resulted in erroneous factual determinations it is important that particularity of the errors are set out. Tesco has the resources to provide the required full details and is to be limited to the specific challenges advanced in the grounds of appeal, absent any successful application to amend.
6.
I am informed that Tesco have appealed that determination to the Court of Appeal, where it is awaiting consideration for permission to appeal.
7.
In the order allowing the appeals to proceed the claimants were required to serve answers to the appeals within 28 days of the seal date of the order “or, if in that period an application to amend a Notice of Appeal is made, within 14 days of the seal date of the Employment Appeal Tribunal Order determining that application”.
8.
On 4 March 2025, Tesco made an application to amend with proposed amended grounds of appeal attached.
9.
Tesco seek to add paragraph 52:
FURTHER EXAMPLES
52.
Further erroneous factual determinations, facts, examples and matters on which the Respondent relies are set out in the Schedule.
10.
The Schedule sets out the ground of appeal (and in some cases the relevant paragraph number of the ground) and gives a reference to a paragraph or paragraphs numbers in the stage 2 equal value judgment such as “Appendix 1: paragraph 7, pages 32 – 33” and so on.
11.
The amended grounds assert under the heading “POINT OF CLARIFICATION” at paragraphs 53 to 55 that various determinations of facts relating to one of the comparators were applied by the Employment Tribunal to all comparators and that the challenge set out in the grounds of appeal that refer to one comparator apply to all comparators where the Employment Tribunal made findings that were applicable to the others comparators.
12.
The claimants object to the amendment.
13.
The proceedings were governed by the Employment Tribunals (Equal Value) Rules of Procedure 2013 (“EV Rules”) that require the Employment Tribunal to determine “the question” which is defined by Rule 1 EV Rules as “whether the claimant's work is of equal value to that of the comparator”. The purpose of a stage 2 equal value hearing is set out in Rule 6 EV Rules:
6.—(1) At a stage 2 equal value hearing the Tribunal shall—
(a)
make a determination of factson which the parties cannot agree which relate to the question and shall require the independent expert to prepare the reporton 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”); and
(b)
fix a date for the final hearing.
(2)
Subject to paragraph (3), the facts relating to the question shall, in relation to the question, be the only facts on which the Tribunal shall rely at the final hearing.
(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. [emphasis added]
14.
Thus, the end result of a stage 2 equal value hearing is a judgment which determines the facts on which the parties cannot agree. The judgment of the Employment Tribunal was in the following terms:
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.
15.
The judgment is made up of the determinations of fact made in the eight schedules.
16.
The power of the EAT to hear an appeal derives from section 21(1) Employment Tribunals 1996:
An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an employment tribunal under or by virtue of …
17.
While the provision appears wide, the scope of appeal is limited to challenging specific determinations of the Employment Tribunal. In Harrod v Ministry of Defence [1981] ICR 8, May J held at 11E:
Upon a first reading of the words of section 136 (1), we can see that there might well be some force in the argument and that appeals under that subsection could lie to this appeal tribunal on points of law decided by an industrial tribunal in the course of proceedings before them, even though the appellant was not seeking to
challenge the ultimate result. …
Having considered the matter carefully, however, we have come to the conclusion that it is inherent in any appeal that the appellant must be seeking to set aside the decision, judgment or order, whatever it may have been of the tribunal below, and that it would need very clear words to entitle a party to any proceedings to appeal to an appellate tribunal on the basis that although the decision below was right, nevertheless the reasons for it were wrong. We have come to the conclusion that, notwithstanding that the wording of section 136(1) is arguably open to a wider construction, the proper view is that it comprehends only appeals which attempt to
disturb the order of the industrial tribunal.
18.
Harrod was recently followed by HHJ Auerbach in Durey v South Central Ambulance Service NHS Foundation Trust EA-2023-000420-LA.
19.
Prior to the Preliminary Hearing at which I permitted the appeals to proceed I required Tesco to state the order sought in respect of any grounds of the appeal succeed. This is required by the EAT Practice Direction 2024. In respect of most grounds of appeal Tesco stated “Remission to the same Tribunal for factual determinations”. This emphasises that the appeal seeks to challenge specific findings of fact made at the stage 2 equal value hearing.
20.
Section 11.15.1 of the EAT Practice Direction 2024 states that “The order remitting the case defines the jurisdiction of the Employment Tribunal on the remitted issue(s)”. The EAT has repeatedly emphasised the importance of clarity in the terms of remission so that the Employment Tribunal is clear about what matters are to be redetermined and which are not within the scope of the remission: see for example Hamilton v LTRS Estates Ltd t/a Orwells UKEAT/0230/12 (21 February 2013, unreported) per Langstaff J.
21.
Section 8.2 of the EAT Practice Direction 2024 states that any application to amend “should be made as soon as practicable”. The approach adopted by the EAT to amendment applications was set out by HHJ Serota QC in Khudados v Leggate [2005] ICR 1013:
86 The appeal tribunal has a broad and generous discretion in applying its rules and practices so as to achieve the overriding objective of dealing with cases justly. We consider that, without wishing to set out an exhaustive list of considerations, the following are among the matters to be taken into account in determining whether or not an amendment should be allowed.
(a)
Whether the applicant is in breach of the Rules or Practice Directions; in our opinion compliance with the requirement in para 2(6) of Practice Direction (Employment Appeal Tribunal: Procedure) 2002 [2003] ICR 122, that an application for permission to amend a notice of appeal be made as soon as the need for amendment is known, is of considerable importance. The requirement is not simply aspirational or an expression of hope. It does not set a target but is a requirement that must be met in order to advance the efficient and speedy dispatch and conduct of appeals.
(b)
Any extension of time is an indulgence and the appeal tribunal is entitled to a full honest and acceptable explanation for any delay or failure to comply with the 1993 Rules or 2002 Practice Direction, as Mummery J observed in United Arab Emirates v Abdelghafar [1995] ICR 65.
(c)
The extent to which, if any, the proposed amendment if allowed would cause any delay. Clearly proposed amendments that raise a crisp point of law closely related to existing grounds of appeal, or offering limited particulars that flesh out existing grounds, are much more likely to be allowed than wholly new grounds of perversity raising issues of complex fact and requiring consideration of a volume of documents, including witness statements and notes of evidence. Such amendments if allowed are bound to cause delay and extra expense. The latter class of amendments should be contrasted with the first. In many cases in the first category the party against whom permission to amend is sought will be in no worse position than if the amended grounds had been included in the original notice of appeal.
(d)
Whether allowing the amendment will cause prejudice to the opposite party, and whether refusing the amendment will cause prejudice to the applicant by depriving him of fairly arguable grounds of appeal. We recognise that a party cannot be prejudiced in point of law simply because an argument is raised by way of amendment that saves what would otherwise be an unsustainable appeal. We also would suggest that the prejudice caused by refusing permission to amend to an applicant who seeks permission to amend by adding fairly arguable grounds, but who has failed in a significant way to comply with the Rules or Practice Direction, or who has delayed excessively, is likely to carry less weight than in the case of an applicant who has not delayed and has acted in accordance with the 1993 Rules and 2002 Practice Direction.
(e)
In some cases it may be necessary to consider the merits of the proposed amendments, assuming they can be demonstrated to cross the appropriate thresholds we have mentioned earlier; that is to say as a general rule they must raise a point of law which gives the appeal a reasonable prospect of success at a full hearing.
(f)
Regard must be had to the public interest in ensuring that business in the appeal tribunal is conducted expeditiously and that its resources are used efficiently. [emphasis added]
22.
Deciding whether to permit an amendment is a classic example of the exercise of a judicial discretion. HHJ Serota specifically noted that there was a broad discretion to be exercised in accordance with the overriding objective. The specific factors he highlighted were stated to be “among the matters to be taken into account”. I have not treated them as boxes to be ticked.
23.
I have considered Tesco’s application to amend and proposed amended grounds, the claimant’s response, Tesco’s letter of 14 March 2025 and the Leigh Day claimant’s letter of 17 March 2025.
24.
I will first consider application to amend to add paragraph 52. I will start with some general observations about the practicalities of the appeal and remission if any of the grounds of appeal are successful, which must be seen in the context of this litigation that is proceeding at a snail’s pace, with a multitude of disputes about a vast number of factual issues, and repeated appeals.
25.
Paragraph 52 refers to the Annex that lists 146 passages that are said to include “factual determinations, facts, examples and matters on which the Respondent relies”. It is hard to imagine a more vaguely pleaded assertion. While the schedule sets out which ground (and in some cases sub-ground) the passages are said to be relevant to; the “factual determinations” and/or “facts” (it is not clear what if any distinction there is between the two); “examples” and “matters” (it is unclear what this term means) are not expanded upon. This raises very serious concerns about how the EAT would be able to understand the appeal or how, if the relevant grounds are successful, the Employment Tribunal would deal with remission. In its letter of 14 March 2025 Tesco rather glibly state:
The additional paragraph references included in the Application simply act as further illustrations of the alleged errors of law in the Employment Tribunal’s second Stage 2 judgment. The Employment Appeal Tribunal does not need to consider each example in order to reach a determination on each alleged error of law. If the Appeals are successful, the process of considering each example would be a matter for the Employment Tribunal upon remission.
26.
This suggests remission that would lack the required specificity and would risk yet further detailed disputes in the Employment Tribunal about which “factual determinations, facts, examples and matters” are to be redetermined. That is a recipe for further delay in the Employment Tribunal and for yet further appeals. Tesco’s analysis also fails to take account of the particular nature of a judgment after a stage 2 equal value hearing in which a huge number of facts are determined. The challenge in the appeal must be to specific facts or groups of linked facts determined in the judgment.
27.
I will now consider the specific points made by Tesco.
28.
Tesco assert:
a.
Although HHJ Tayler has, in substance, found that Tesco’s understanding of what was required of it by the legislation and the Practice Direction was wrong, Tesco acted in good faith on the basis of its understanding of those provisions.
b.
Tesco made the application with reasonable dispatch after it became clear that the application was required.
29.
I am informed that Tesco have appealed my Order. Unless successfully appealed, my previous judgment is to be treated as setting out the existing law, that an appeal lies against a judgment, and that the judgment in a stage 2 equal value constitutes the findings made by the Employment Tribunal on the disputed facts.
30.
The application to amend is made extremely late. The appeal was received by the EAT on 15 August 2024. The decision only to give examples of the asserted errors in the factual determinations that made up the judgment was in error. Tesco have considerable legal resources and could have stated clearly all the specific factual determinations are challenged in the appeal when it was submitted. Tesco submitted a 88-page reconsideration application to the Employment Tribunal on 18 October 2024. If necessary Tesco could have chosen to amend the appeal then. Tesco could have considered the matter when the Harcus claimants expressly raised the issue of Tesco only having given examples in its skeleton argument submitted on 13 November 2024. There were further opportunities to consider this issue when Tesco responded on 26 November 2024 to my requirement to set out the orders sought in respect of any grounds of appeal that may succeed and when my draft judgment was circulated on 27 January 2025. The application was not made until 4 March 2025. I do not consider that the application was made with anything like reasonable dispatch.
31.
Tesco assert:
c.
The application does not seek to introduce new alleged errors of law. Rather, it is concerned to provide further particulars in relation to existing alleged errors of law, including in particular to identify more fully how the existing alleged errors of law affected individual factual findings and issues.
32.
While the application does not allege new errors of law, it is so vaguely expressed that I do not consider it can properly be said that it identifies fully “how the existing alleged errors of law affected individual factual findings and issues”.
33.
Tesco contend that:
d.
The amendment will not cause material delay. It will not affect the listing of the full appeal hearing on 18 and 19 June 2025.
e.
The amendment will not cause any, or any significant, prejudice to the Claimants. The amendments serve to identify the extent to which existing errors of law – which the EAT has found to be reasonably arguable – permeated the ET’s decisions; they do not add new errors of law.
34.
I expedited the Preliminary Hearing and the full hearing. It has been very challenging to find a date for the full hearing because of the limited judicial resources of the EAT. Were this listing to be lost it may well not be possible to find a new hearing date for many months.
35.
I consider that it is likely that allowing the amendment would cause very considerably delay and concomitant prejudice to the claimants. I consider that the current listing on 18 and 19 June 2025 would be placed in jeopardy and there would be a great risk of further disputes in the Employment Tribunal and possible further appeals that could delay this litigation yet further.
36.
Tesco assert:
f.
By contrast, declining the amendment would cause serious prejudice to Tesco. As Tesco understands HHJ Tayler’s decision, it would mean the following in relation to the Relevant Grounds: even if the EAT held that the ET had made the error of law alleged, and that error of law undermined the judgment (or individual findings within the judgment) to an extent which goes beyond the illustrative examples, facts or matters currently set out in the Grounds of Appeal, the appeal could be allowed only in relation to those illustrative examples, facts or matters.
g.
Further, this would lead to inconsistency and could lead to injustice. Some of the ET’s findings which were affected by an error of law would be overturned, while other findings which were affected by the same error of law would remain. It is submitted that this should be avoided, especially in a context in which the ‘value’ of a person’s work depends on an assessment of a mosaic of individual facts.
h.
Insofar as the merits of the amendments are relevant, they clearly have merit. As set out above, they provide further information in relation to errors of law which the EAT has already found to have a reasonable prospect of success at a full hearing.
37.
I accept that not permitting the amendment may cause real prejudice to Tesco. However, I do not consider it is sufficient to outweigh the prejudice to the claimants and the proper administration of justice by allowing the amendment. The prejudice is essentially of Tesco’s own making. Tesco could have set out the full extent of their challenges to the facts that make up the stage 2 equal value judgment when they submitted the appeal or applied for amendment at a much earlier stage. Even now the proposed amendment is extremely vague and risks enormous further delay.
38.
I refuse the application to amend to add paragraph 52.
39.
The application to add paragraphs 53 to 55 seeks to add as a “point of clarification” that various determinations of facts relating to one of the comparators were applied by the Employment Tribunal to all comparators and that the challenge set out in the grounds of appeal that relate to one comparator apply to all comparators where the Employment Tribunal made findings that were applicable to the others comparators. As this is a point of clarification, I am not sure that an amendment is required. But for good order, I permit the amendment, but subject to any argument that the respondents may present at the final hearing that the ground should fail because it is not a genuine clarification of the existing grounds.
End of document
特易购百货有限公司诉K·埃勒门特等人案
[2025]英国就业上诉法庭第43号
经法庭批准发布的判决
中立引证号：[2025] EAT 43
案件编号：EA-2023-000927-AT
EA-2023-000928-AT
EA-2024-001071-AT
英国就业上诉法庭
罗尔斯大厦
费特巷，伦敦EC4A 1NL
日期：2025年3月28日
主审法官：
尊敬的詹姆斯·泰勒法官
庭内审理
当事人：
特易购百货有限公司
上诉人
——以及——
K·埃勒门特女士等人
（所有索赔人由Leigh Day及Harcus Sinclair律师事务所代理）
被上诉人
庭内审理
判决书
尊敬的詹姆斯·泰勒法官
当事人
下文将上诉人称为"特易购"，被上诉方称为"Leigh Day索赔人"和"Harcus索赔人"（无需区分时统称"索赔人"）。诉讼程序
2. 特易购申请修改这份长期同工同酬诉讼中的上诉通知。目前索赔人已超5万名，部分索赔最早可追溯至2018年。
"《就业上诉法庭程序指引》第3.8条要求上诉理由应'简明聚焦'且'明确主张法律错误'。第3.9-3.10条规定主张'显失公平'或'程序不当'的上诉理由须提供'完整细节'。第3.10条将'任何重大程序违规'纳入'程序不当'范畴。这要求具体化每项争议而非仅提供'示例'。无论如何，当主张法律错误导致事实认定错误时，必须详述错误细节。特易购有资源提供完整细节，且应限于上诉理由中提出的具体质疑，除非修改申请获准。"据悉特易购已就该裁定向上诉法院提起上诉，正等待许可审理。允许上诉进行的命令要求索赔人须在命令密封后28天内提交答辩状，"若在该期间内提出修改上诉通知申请，则在就业上诉法庭作出准予修改命令后14日内提交"。2025年3月4日，特易购提交修改申请并附拟议修正的上诉理由。特易购申请新增第52条：
"更多示例被上诉人依据的其他错误事实认定、事实、示例及事项载于附表。"附表列明上诉理由（部分标注具体段落编号）并援引第二阶段等值判决中的段落（如"附录1：第7段，第32-33页"等）。修正理由在"澄清说明"标题下（第53-55条）主张：就业法庭对某一对照人员的事实认定被类推适用于所有对照人员，且上诉理由中针对某一对照人员的质疑应同等适用于其他被类推认定的对照人员。索赔人反对修改。本案适用《2013年就业法庭（等值性）程序规则》（"EV规则"），要求就业法庭裁定"问题"（EV规则第1条定义为"索赔人工作是否与对照人员工作等值"）。第二阶段等值听证会目的见EV规则第6条：
"(1) 在第二阶段等值听证会上，法庭应——
(a) 就当事人无法达成一致的、与问题相关的事实作出认定，并要求独立专家基于已同意或已认定的事实（统称'与问题相关的事实'）编制报告；
(b) 确定最终听证日期。
(2) 除第(3)款外，与问题相关的事实应作为最终听证的唯一依据。
(3) 独立专家可在诉讼任何阶段申请修正、补充或删除部分或全部相关事实。"因此，第二阶段等值听证会的产出是一份认定当事人争议事实的判决。就业法庭判决表述如下：
"本庭对六名样本索赔人及八名对照人员工作（依据《2010年同工同酬法》第65(6)条）相关事实争议的结论，载于下文第30-619页的八份附表。"判决由八份附表的事实认定构成。就业上诉法庭的上诉管辖权源于《1996年就业法庭法》第21(1)条：
"对就业法庭在任何程序中所作决定或产生的法律问题，可向上诉法庭提起上诉……"尽管条文宽泛，但上诉范围限于质疑就业法庭的具体裁决。May法官在Harrod诉国防部案[1981] ICR 8第11E段指出：
"初读第136(1)条文字或可认为，即便不挑战最终结果，当事人也可就工业法庭程序中的法律问题上诉……但经慎重考虑，我们认为上诉的本质在于上诉人必须寻求撤销下级法庭的裁决。若允许当事人以'裁决正确但理由错误'为由上诉，需极明确的法律依据。我们认定，尽管第136(1)条文义可作广义解释，但其仅适用于试图推翻工业法庭命令的上诉。"该判例近期被HHJ Auerbach在Durey诉中南救护车服务 NHS信托基金会案(EA-2023-000420-LA)遵循。在准许上诉进行的预备听证前，我要求特易购明确若上诉成功寻求何种命令（依《2024年就业上诉法庭程序指引》）。就多数上诉理由，特易购表示"发回原法庭重新认定事实"，强调其意图挑战第二阶段等值听证会中的具体事实认定。《2024年程序指引》第11.15.1条规定"发回命令应界定就业法庭对发回事宜的管辖权"。就业上诉法庭多次强调发回条款须明确（如Langstaff法官在Hamilton诉LTRS地产有限公司案[2013]未报道判决中所言），确保就业法庭清楚需重新认定的事项范围。《2024年程序指引》第8.2条规定修改申请"应尽快提出"。就业上诉法庭对修改申请的处理原则由HHJ Serota QC在Khudados诉Leggate案[2005] ICR 1013确立：
"86. 为实现公正处理案件的根本目标，就业上诉法庭在适用规则和实践时享有宽泛裁量权。我们认为（非穷尽列举）以下因素需纳入考量：
(a) 申请人是否违反规则或程序指引。遵守《2002年程序指引》第2(6)条（要求修改上诉通知的申请须在知悉需求后立即提出）至关重要——该要求非建议性而是确保上诉高效推进的强制性规定。
(b) 延期属特许权。如Mummery法官在阿联酋诉Abdelghafar案[1995] ICR 65所言，法庭有权要求对延迟或违规行为作出全面、诚实且可接受的解释。
(c) 拟议修改可能导致的延迟程度。提出与现有上诉理由紧密关联的简明法律问题或补充细节的修改，比提出需审查大量证据的全新显失公平理由更易获准。后者必然导致延迟和额外成本。
(d) 准予修改是否损害对方利益，或拒绝修改是否因剥夺申请人合理上诉理由而损害其利益。需注意，对方不能仅因修改挽救原本不可维持的上诉而主张法律上的损害。对于严重违规或过度延迟的申请人，其修改申请所含合理理由的权重通常较低。
(e) 必要时需评估拟议修改的实体价值——通常须提出具有合理胜诉前景的法律问题。
(f) 须考虑公共利益要求上诉法庭高效处理案件并合理配置司法资源。"是否准予修改属典型的司法裁量事项。HHJ Serota特别指出应依根本目标行使宽泛裁量权。其强调的具体因素仅为"需考量的部分事项"，我未将其视为机械的勾选框。我已考虑特易购的修改申请及拟议修正理由、索赔人回应、特易购2025年3月14日函件及Leigh Day索赔人2025年3月17日函件。首先审议新增第52条的申请。在分析本案上诉及可能的发回程序时需注意：本诉讼进展缓慢，涉及海量事实争议且上诉频发。第52条所指附表列出146处所谓"事实认定、事实、示例及被上诉人依据的事项"。难有比此更模糊的诉辩主张。尽管附表标明相关上诉理由（部分含具体编号），但所谓"事实认定"和/或"事实"（二者区别不明）、"示例"及"事项"（含义不清）均未展开。这引发严重关切——就业上诉法庭将如何理解上诉？若相关理由成立，就业法庭将如何处理发回事宜？特易购在2025年3月14日函件中轻描淡写称：
"申请新增的段落仅作为就业法庭第二阶段判决中涉嫌法律错误的进一步例证。就业上诉法庭无需审议每项示例即可判定法律错误。若上诉成功，具体示例的审查应交由发回后的就业法庭处理。"此主张将导致发回缺乏明确性，可能引发就业法庭对需重新认定的"事实认定、事实、示例及事项"的新争议，势必造成进一步拖延及上诉。特易购的分析亦未顾及第二阶段等值判决的特殊性——其包含海量事实认定。上诉挑战必须针对判决中的具体事实或关联事实群。现具体分析特易购的论点：特易购主张：
a. 尽管泰勒法官实质上认定特易购对法律及程序指引的理解有误，但其系基于善意行事；
b. 特易购在明确需修改后合理迅速地提出申请。据悉特易购已对本庭命令上诉。除非上诉成功，否则我先前判决应视为现行法律——上诉针对判决本身，而第二阶段等值判决构成就业法庭对争议事实的认定。本修改申请极度延迟。上诉于2024年8月15日提交就业上诉法庭。仅列举所谓事实认定错误的做法自始即有误。特易购拥有雄厚法律资源，本可在提交上诉时明确所有受挑战的具体事实认定。其于2024年10月18日向就业法庭提交88页的复议申请，必要时本可同时申请修改上诉。当Harcus索赔人在2024年11月13日提交的案情纲要中明确质疑特易购仅提供示例时，其亦有补救机会。在我2024年11月26日要求明确上诉成功后的救济命令、以及2025年1月27日分发判决草案时，特易购仍可行动。但其迟至2025年3月4日才提出申请，我认为该申请远未达到"合理迅速"标准。特易购主张：
c. 申请未引入新的法律错误指控，仅为现有指控提供进一步细节（特别是明确既有法律错误如何影响具体事实认定）。尽管申请未提出新法律错误，但其表述极度模糊，难以认定其已完整阐明"既有法律错误如何影响具体事实认定"。特易购声称：
d. 修改不会实质延迟程序，不影响2025年6月18-19日的完整听证排期；
e. 修改不会对索赔人造成重大损害，仅揭示既有法律错误对法庭裁决的渗透程度，未新增法律错误。我已加速预备听证和完整听证的排期。由于就业上诉法庭司法资源有限，确定完整听证日期已极困难。若本次排期取消，可能数月内无法重新排期。我认为准予修改极可能导致严重延迟及相应损害。当前排期可能不保，且可能引发就业法庭的新争议及后续上诉，进一步拖延诉讼。特易购主张：
f. 拒绝修改将严重损害其利益。按其对泰勒法官裁定的理解，即便就业上诉法庭认定就业法庭存在法律错误且该错误影响超出当前上诉理由中的示例范围，上诉也仅能针对既有示例获准；
g. 这将导致不一致及不公——部分受法律错误影响的事实认定被撤销，而其他受同一错误影响的认定却维持。此情形在"工作价值取决于事实拼图"的背景下尤应避免；
h. 若需考量实体价值，本修改显然具有价值——其为就业上诉法庭已认定具有合理胜诉前景的法律错误提供进一步细节。我承认拒绝修改可能对特易购造成实质损害，但此损害不及准予修改对索赔人及司法行政造成的损害。该损害本质上系特易购自身所致——其本可在提交上诉或更早阶段提出完整挑战。即便当前，拟议修改仍极度模糊且可能导致巨大延迟。我拒绝新增第52条的修改申请。新增第53-55条的申请旨在"澄清"：就业法庭对某一对照人员的事实认定被类推适用于所有对照人员，且相关上诉理由应同等适用。鉴于此为澄清性质，修改或非必要。但为程序严谨，我准予该修改，但被上诉人可在完整听证中主张该理由不构成对既有理由的真实澄清而应驳回。
文书终结
来源：明杰教育