In Next Retail Ltd and Next Distribution Ltd v Thandi and others, more than 3,500 shop-floor sales consultants brought equal pay claims comparing their basic pay with that of predominantly male warehouse operatives.
An employment tribunal found that the claimants’ work was of equal value to that of the warehouse workers. It then considered whether the respondent could establish a material factor defence by showing that the difference in pay was caused by factors unrelated to sex. As those factors placed women at a particular disadvantage, the respondent also had to show that its reliance on them was a proportionate means of achieving a legitimate aim.
The respondent relied on market forces, including recruitment and retention pressures affecting warehouse staff, as well as business viability. The tribunal accepted that there were particular recruitment pressures in the market for warehouse workers which did not apply to sales workers.
However, it concluded that the respondent's aim was ultimately to minimise costs and maximise profitability. It held that cost saving alone was not a legitimate aim and that market forces should not operate as a “trump card” permitting discriminatory pay differences to continue indefinitely. The tribunal therefore upheld the claims relating to basic pay.
The respondent appealed and the claimants cross appealed the finding that there had been no direct sex discrimination.
The Employment Appeal Tribunal (EAT) allowed...
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