Retail store workers have won the first stage in the Next equal pay case, after Next conceded that the store workers can be compared to the company's warehouse and distribution centre staff in terms of pay.
Next Equal Pay Case
In the Next equal pay case, store workers commenced employment tribunal proceedings in relation to equal pay back in 2018. Currently, there are now over 400 Claimant's in the group action. However, given that Next has over 25,000 store staff working in around 500 retail outlets across the country, Next could potentially be facing claims for back pay worth over £100 million. The store workers allege that they have been paid between £2 - £6 less than warehouse and distribution centre workers, whom they allege perform work of equal value, and that the warehouse and distribution centre workers have access to more lucrative bonuses than they do.
In the first stage of the Next equal pay case, the store workers, mostly women, needed to establish that their roles could be compared to those of the higher paid warehouse and distribution centre workers, who are predominantly men. Next have now conceded that the roles can be compared.
The concession by Next that the roles are comparable follows in the wake of the Supreme Court ruling back on the 26th March 2021 in the Asda equal pay case, in which Asda's store workers were able to show that their roles were comparable to those of the company's warehouse staff. In that ruling, the Supreme Court held that common terms applied (known as the “threshold test”) to the retail and warehouse roles, despite the two groups working out of different sites. The outcome of that case probably played a role in the concession by Next on the issue of comparability.
Nevertheless, this is not the end of the Next equal pay case, as to succeed against their employer, the Claimant’s will next need to establish that the distribution/warehouse and shop floor roles are of equal value, and beyond that if successful on the equal value issue, that there is no material factor defence (i.e. that there is no genuine non-sex discriminatory reason that justifies the difference in pay).
The Wider Context
The Next equal pay case is just the latest in a long line of group equal pay cases that have been brought against major retail outlets, which began in the supermarket sector.
All of the various supermarkets have large group equal pay cases against them, all of which remain ongoing and are at various stages. The aformentioned Asda case, for instance, has moved on the second stage to determine whether the store roles and the warehouse roles are of equal value.
Furthermore, back on the 3rd June 2021, Tesco's store workers were successful in arguing at the European Court of Justice that the 'single source test' applies to UK businesses, where the complaint relates to the period prior to the UK leaving the EU. On that basis, where there is a 'single source' with the power to rectify any pay disparity, then workers doing one type of role can compare themselves with workers performing another type of role at a different business location within the ambit of that single source
The single source test is a much simpler test, and easier for Claimant's to satisfy, compared to the 'threshold test' used in the Asda equal pay case. Hence, the reason why the Tesco's case was taken down that route
Reaction To The Next Equal Pay Case Developments
Reacting to the employers concession in the Next equal pay case, the Claimant's legal representative stated: "This is very welcome news for all the hardworking Next store staff involved in this claim. They can now move forward, and the employment tribunal can focus on the question that is the crux of these claims: is store work of equal value to the work in the warehouses?"
