Next had a useful phrase for its shop workers on Monday. Paying more to recruit warehouse staff, the company explained, should not oblige it to raise other employees’ wages “where there is no reason to do so”. It had just won its appeal on basic pay and was celebrating a “victory for common sense”. The reason its shop workers might expect an increase had already been established in court: their work was of equal value. That finding survived the appeal. What they lacked was an equivalent shortage of people willing to do their jobs
Labour is currently consulting on equal pay. Among the proposals for improving enforcement, Question 18 asks about clarifying “when an employer can lawfully pay people differently for equal work”. Next has supplied ministers with a case against which to test their ambitions. They could make the existing rules clearer and claims easier to pursue, both worthwhile improvements. They also need to decide whether those rules permit inequalities a Labour government should be trying to remove.
Workers made gains in 2018 and 2023
The store workers began bringing their claims in 2018. In 2023, the lead claimants established that their work was equal in value to that of their warehouse comparators. The following year, they won on basic pay and several other contractual terms. Next did not appeal the equal-value finding. Monday’s decision therefore did not discover that warehouse work was more valuable, or that the shop workers had misunderstood their jobs. It accepted the company’s justification for paying different basic rates.
Nor did Next overturn everything. The workers retained victories concerning night-time and overtime premiums and paid rest breaks. Their lawyers intend to appeal the basic-pay decision. Those surviving claims are worth remembering when the company presents the outcome as a vindication of its approach. Eight years into the litigation, the workers have secured findings with real financial consequences, even as the largest part of their victory has been taken away.
Equal value does not mean identical work. The law allows different jobs to be compared through the demands they make on the people doing them. A shop worker does not have to prove that serving customers is the same activity as processing warehouse orders. Equally, the law permits some differences in pay where employers can justify them. A serious argument about this case has to begin there, rather than with an improvised competition over which workers are more exhausted at the end of a shift.
Appeal in 2026 accepts bosses’ recruitment/retention line
The appeal judgment accepted recruitment and retention pressures as a legitimate reason for higher warehouse pay and found the differential proportionate. It also upheld the finding that there had been no direct sex discrimination. This was not permission for an employer to invoke market forces without evidence. The court distinguished genuine recruitment pressures from simply paying warehouse workers more because warehouse workers usually earn more. It also rejected the earlier tribunal’s emphasis on whether Next could afford to equalise pay, directing attention instead to why the higher rate was necessary.
An employer’s explanation of how it sets wages is not, however, a satisfactory account of what workers ought to receive. Recruitment pressures tell us something about the alternatives available to workers and the difficulty an employer faces in replacing them. They do not settle the value of the work. Next’s shop workers had established equal value without acquiring the bargaining position that would make the company feel compelled to pay them more. The legal distinction is defensible within the judgment’s reasoning. Politically, it leaves a substantial problem untouched.
The workforce figures also complicate the familiar image of women behind tills and men in warehouses. Over the period examined, 77.5 per cent of Next’s retail consultants were women, while the warehouse workforce was much closer to evenly divided, with a small male majority. This is not an argument for reducing warehouse wages, including those paid to women. It concerns the weaker position of a heavily female workforce whose labour the company could obtain more cheaply.
Market rates are not neutral facts
The labour market does not begin afresh whenever an employer advertises a vacancy. People arrive with responsibilities that restrict the hours they can offer and the distance they can travel. ONS time-use research has documented employed mothers doing more unpaid childcare and household work than employed fathers. A worker fitting paid employment around care cannot necessarily move to whichever job offers the highest hourly rate. That does not establish discrimination in any particular pay decision. It does help explain why a market rate cannot be treated as an impartial judgement delivered from outside the society that produces it.
Elizabeth George, the Leigh Day partner representing the claimants, warned that market conditions producing disadvantage risk becoming the legal justification for maintaining it. The appeal tribunal’s answer was more specific than a blanket endorsement of whatever the market pays. Yet the political concern remains. An employer need not set out to disadvantage women for the unequal distribution of paid and unpaid work to help keep its wage bill down. Establishing the absence of discriminatory intent does not make the conditions under which people bargain disappear.
Those conditions have already been altered by forces other than recruitment. The judgment records collective bargaining with Usdaw over warehouse pay, but not store consultants’ pay. It also records the statutory wage floor helping to narrow the basic hourly differential, which fell from 92p in 2012 to 38p in 2023. These are not details outside the operation of the labour market. They are part of how wages get made. Parliament can change what an employer must pay; organised workers can negotiate terms they would struggle to obtain individually.
Engaging with Labour’s consultation
Labour’s consultation deserves more than dismissal as administrative tinkering. It proposes a dedicated equal-pay enforcement unit and reviews intended to reduce protracted litigation. It also addresses gaps in protection affecting disabled people, ethnic minority workers and outsourced staff. A worker unable to afford a claim gains little from a strong right that exists only on paper. Shifting enforcement away from a system that depends so heavily on individuals bringing cases could make a considerable difference. Nobody who has watched an employment dispute consume years of someone’s life should sneer at making the process work.
But an enforcement body must enforce the law it is given. Better guidance on the material factor defence, which allows employers to justify certain pay differences, does not necessarily change which differences are lawful. Ministers should be asked whether their reforms would alter the test applied in a case like Next’s. A promise of greater clarity is not an answer to that question. The company and its shop workers can understand the judgment perfectly well and still have sharply opposed interests in its consequences.
Workers need to fight for equal pay for equal value
There is room for a more demanding approach without pretending every recruitment premium is illegitimate. Parliament could consider stricter limits on how long such premiums justify unequal basic pay, with stronger requirements to demonstrate that the need persists. Reform should protect workers’ higher rates, not offer employers an invitation to equalise downwards. Alongside that legal work, bargaining arrangements covering retail workers across employers would offer a way to raise the going rate itself. Workers should not have to wait until their employer struggles to replace them before they can secure an increase.
Next warns that losing the appeal would have threatened the viability of many stores and disadvantaged retailers operating their own warehouses against those outsourcing them. Such claims require examination, not automatic acceptance or dismissal. They also make the case for common standards across employers and contractual arrangements. Leaving each group of workers to litigate separately allows the firm facing a claim to invoke competitors whose lower obligations become an argument against improving its own employees’ terms.
After the 2024 ruling, Helen Scarsbrook, one of the lead claimants, described what years of undervaluation could do: “You become so used to having your work undervalued that you can easily start to doubt it yourself.” The finding that recognised her work has not gone away. Securing the corresponding pay remains a fight. Labour should use this consultation to explain what additional rights and bargaining power it intends to put behind workers in that position. Next has been clear enough about the circumstances in which it sees a reason to pay more. A government promising to improve working life cannot leave the decision there.
Sep 08, 2026