The store staff who brought the claim will now be entitled to compensation by way of back pay going back up to six years from when they put in their claims and including the time that has elapsed since they put in their claims. The first claims were submitted in 2018. In addition, their basic hourly pay terms will automatically be equalised in their existing contracts. The win also extends to providing the store staff with paid rest breaks, and equal Sunday, Night and Overtime Premiums in line with comparable terms in the warehouse contracts.
Compensation (backpay) for the claimants will now be assessed by the Tribunal. Only those who have brought claims will be entitled to compensation for lost pay and guaranteed to have their contracts automatically equalised, but Leigh Day is continuing to submit claims for Sales Consultants who were not in the original 3,500 and the number of claims are expected to increase significantly over the coming weeks and months following the successful ruling.
The significance of the result extends beyond Next with Leigh Day representing more than 112,000 store staff across the five major supermarkets, Asda, Tesco, Sainsbury’s, Morrisons and Co-op all bringing similar equal pay claims. Each case will be decided on its own particular facts, but the success of the Next staff will be a huge encouragement to all these cases. Leigh Day lawyers representing the store staff expect this judgment to be closely scrutinised by all the retail heavyweights. The tribunal has made it clear that relying on market rates in itself is not a valid defence in equal pay claims of this type.
In 2023 the work done by the women in the Next stores was ruled to be equal to the warehouse operative work in terms of the demands involved. Under equal pay law, work of equal value must be paid equally unless an employer can show that the difference in pay is explained by a reason that is not sex discrimination.
Next argued at the hearing in May this year that market forces explained the pay difference. They told the tribunal that the market rate for a warehouse operative is more than for a sales consultant and that the sex of staff did not come into it. The tribunal rejected this. It held that when there are two labour markets doing equal work, but the mainly male market (warehousing) is paid more than the mainly female market (the stores) because these are the market rates, that reason alone is not a lawful defence to an equal pay claim. The ruling found that there has to be something more to justify the inequality.
Helen Scarsbrook, aged 68, from Eastleigh near Southampton, who has worked for Next for more than 20 years and was one of three lead claimants representing all the sales consultants in the claim, said:
“We did it! We have achieved equal pay for Next sales consultants. It has been a long six years battling for the equal pay we all felt we rightly deserved but today we can say we won.
“Anyone who works in retail knows that it is a physically and emotionally tough job. Customer service, in particular, is very demanding and we do that in addition to lots of other essential tasks that go to make Next a successful business. You become so used to having your work undervalued that you can easily start to doubt it yourself. I am so grateful to the judges for seeing our jobs for what they really are – equal.”
Elizabeth George, Leigh Day partner and barrister representing the successful claimants, said:
“Helen and her colleagues in this claim have achieved something hugely significant. This is exactly the type of pay discrimination that the equal pay legislation was intended to address.
“When you have female dominated jobs being paid less than male dominated jobs and the work is equal, employers cannot pay women less simply by pointing to the market and saying – it is the going rate for the jobs. We knew that already. The Employment Tribunal has confirmed employers must go further to justify paying the different rates. They rightly found that Next could have afforded to pay a higher rate but chose not to and that the reason for that was purely financial. Helen and thousands of her colleagues had the courage and perseverance to bring these claims and see them through to a successful end. I am so pleased for them.
“It is worth reminding people that the financial compensation they will now be entitled to is not a windfall. It is pay that they were always entitled to if Next had complied with its equal pay obligations.”