Next staff secure significant victory in equal pay battle
More than 2,000 Next store staff who are taking legal action against the national retailer for equal pay have won the second and crucial stage in their legal battle, which has ruled that their jobs are equal to the warehouse jobs they are comparing themselves too.
Posted on 22 May 2023
The staff, all current or former sales consultants for Next, argued that their work was of equal value to the work of Next’s warehouse operatives and so should be paid at the same rate. Next disputed their work was equal.
The Employment Tribunal in Leeds today ruled unanimously that the three women who act as “lead claimants” for all the sales consultants in the action did work that was of equal value to the jobs of the men in the warehouse that they compared themselves too.
Next employs more than 15,000 sales consultants across its 400 plus stores in the UK. The number of current and former sales consultants joining the legal claim increases week on week. The final compensation value of the claim if successful will likely run into the tens of millions.
The victory today marks a significant milestone in the legal case, which began in May 2018. It also means that the women have now won the right to take their fight for equal pay on to its final legal stage.
Equal Pay cases are heard in three stages: firstly, the claimants must prove that they have the legal right to compare their store roles to warehouse roles, next they must prove that the roles are of equal value to their comparator. If the claimants are successful in both stages the employer must then provide another reason why the jobs should not be paid equally, this is known as the material factor defence.
Next conceded the comparability stage of the case in 2021. Today’s victory means that the burden now shifts to Next to provide evidence to the Employment Tribunal to justify that although the jobs are equal, the store staff are not entitled to have their pay and terms automatically brought into line with warehouse pay and terms. That hearing is likely to take place in March 2024.
If the store staff win that hearing too, the tribunal will then move on to deal with their compensation. The store staff are entitled to receive the difference in their pay and the warehouse operatives’ pay going back for up to six years from when they started their claims and until the case ends. Their contracts are also automatically modified to include equal terms going forward.
Leigh Day is also representing over 85,000 supermarket shop floor workers in similar equal pay claims against Asda, Tesco, Sainsbury’s, Morrisons and Co-op. Those cases are all going through the three stages but not have yet completed the first two. The first equal pay claim, against Asda, was victorious in the Employment Tribunal on the comparability stage in October 2016 but this was then appealed by Asda to the Employment Appeal Tribunal and Court of Appeal which again ruled in favour of the shop floor workers in 2017 and 2019.
Asda lost its final chance to argue that the roles are not comparable at the Supreme Court in March 2021. The claim is now going through the equal value stage but is dealing with a much wider range of roles than those in the Next claims. The question of equal value in the Asda claim will be decided at a hearing in September 2024. The other supermarket claims are also working through the first two stages.
Elizabeth George said:
“We are delighted that our Next clients have won this crucial battle. It is a legal win, obviously, but it means a great deal more than that to the people bringing these claims. The sales consultants, overwhelmingly women, had been told by Next that their work is not as demanding as the warehouse operative’s work and so does not attract equal pay and other benefits currently denied to them.
"Independent Job Experts appointed by the Employment Tribunal to compare the roles have found, unanimously, that the work is equal. The experts’ conclusions were emphatic, and the tribunal has agreed with them. The end is now in sight for the sales consultants after a battle lasting five years.”
Elizabeth George is a barrister with expertise in all areas of employment law.
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