The three women at the lead of an equal pay battle against Next have won the right to take their case onto the final stage.
The case could result in tens of millions of pounds in backdated pay compensation from the high street retailer.
On Monday, the employment tribunal in Leeds ruled unanimously that the sales consultants, who are predominantly women, do work of equal value to warehouse operatives, mostly men, and so should be paid at the same rate.
Since the case began in 2018, more than 2,000 current and former sales consultants have joined the three lead claimants on the case and many more could join by the time the case reaches its conclusion which is expected by May 2024.
If the claimants are successful the sales consultants could be entitled to receive up to six years of back pay, from when the claim started to when the case closes, equating to the difference in their pay and the warehouse operatives’ pay.
Contracts will also be automatically changed to ensure sales consultants are paid equally for equal value work going forward.
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Elizabeth George, partner and barrister at law firm Leigh Day, is representing the claimants.
Speaking to HR magazine, she said: “It’s huge, because it’s the first time that we’ve said, well, this is the work women are doing, we’re saying it’s demanding, the employer is saying not and always has looked at it as not as demanding, and the tribunal has said unanimously it is.”
The value of the sales consultants’ work versus that done by warehouse operatives was decided based on 11 factors determined by experts appointed by the tribunal.
Factors in this case included the physical skill and effort of each job, knowledge needed, and how demanding working conditions are.
In nine of the factors the jobs of the sales consultants were found to be equal to or greater than those of the warehouse operatives.
George said: “Where the warehouse operators were found to be more demanding was that there was slightly more physical effort involved, and it’s not as nice working in a warehouse as it is in a store, so the working conditions are more demanding.”
There is a possibility that Next could appeal the decision, but George said it seemed unlikely as the employer did not oppose the evidence presented on the value of each job.
If Next does not appeal the decision, the final stage of the case relies on the employer proving that there are other legal grounds to pay the sales consultants at a different rate than warehouse operatives.
“The burden shifts to Next and they’re going to have to persuade the tribunal that they can continue to pay the women less even though they’re equal value jobs,” said George.
“They can do that but they’re going to have to show that there’s a real and significant reason that’s not sex discrimination, whether that’s direct or indirect.”
In this case, the employer could put forward a market forces defence – arguing that the market rate for warehouse operative is higher than that for a sales consultant, and therefore it has to be higher to stay competitive.
“But there is a problem with that,” George added. “Because the majority of warehouse operatives are men and it’s traditionally been seen as men’s work.
“In the majority of stores, overwhelmingly, something like 76% of the sales consultants are women and that’s been seen as women’s work.
“Whenever you get that type of job segregation, gender segregation by jobs, it’s resulted in the women being paid less for working alongside women and the men being paid more for working alongside men.
“So we think we can we can say no, the market forces argument is tainted by sex discrimination. Just because you’ve always done it, and just because everyone else does it, isn’t a material factor.”
Supermarket chains Asda, Tesco, Sainsbury’s, Morrisons and Co-op are also in the midst of similar equal pay claims relating to equal pay for equal work.
The supermarkets have yet to reach the same stage as the Next claimants however, as there are more jobs involved.
Overall, 85,000 supermarket shop floor workers are currently involved, and also being represented by Leigh Day.
Next’s equal pay case will not have direct ramifications for the other supermarket claims as each case will be decided on their own facts.
However, George said: “Everyone’s watching, not least because there isn’t anything else to look that they can see ‘ok how’s it going to work?’, to see how the tribunals deal with it.”
