Sep 29, 2026 · 13 min · 7 segments
In this episode, Sally and David discuss what we’ve learnt from the *Next* EAT equal pay appeal decision and the preparation needed for new Employment Tribunal time limits from 1 October 2026.
David LorimerHostSallyHostSo our listeners will remember that back in 2024, an employment tribunal ruled that Next couldn't justify a number of differences in pay between its predominantly female retail sales consultants and its predominantly male warehouse operatives.
The big headline from that decision was that a difference in basic pay based on market forces was essentially just an argument about cost and so couldn't be used to justify unequal pay.
And that attracted huge interest, particularly for other large retailers like the supermarkets facing similar equal pay claims.
It also caused ripples through Europe where there were concerns about the legitimacy of market forces' justifications for pay gaps at a time when under the EU Pay Transparency Directive employers are being required to show their gaps and justifications.
I've seen some headlines saying that Next won, but actually it's important to say they only partly succeeded.
But there are some really useful comments about market forces and when these can and can't be a valid reason for differences in pay.
And equal pay legislation is extremely complex.
So let's just remind ourselves of the legal framework first.
If two jobs done by a man and a woman are of equal value, the employer must pay the same rate for both unless there's a material factor which explains the difference.
OK, next bit.
If that factor puts one sex at a disadvantage, it's potentially indirect discrimination and the employer has to then justify it by showing it's a proportionate means of achieving a legitimate aim.
And simply saving cost is not a legitimate aim.
Yeah, I often find that we should have a diagram when it comes to equal pay claims.
The statistics showed that paying the retail workers, who were 77.5% women, less than Next's warehouse workers, 53% men, did put women at a particular disadvantage.
And this is where it gets really interesting because the EAT disagreed with the ET on some critical points.
Most significantly, Next was able to justify the difference in basic pay that was driven by market forces and the need for effective recruitment and retention of warehouse staff.
That's a big deal.
Instead of just asking whether NEXT could justify why it didn't pay more, the EAT said you need to look at the employer's aim fairly characterised as a whole.
So our listeners will remember that back in 2024, an employment tribunal ruled that Next couldn't justify a number of differences in pay between its predominantly female retail sales consultants and its predominantly male warehouse operatives.
The big headline from that decision was that a difference in basic pay based on market forces was essentially just an argument about cost and so couldn't be used to justify unequal pay.
And that attracted huge interest, particularly for other large retailers like the supermarkets facing similar equal pay claims.
It also caused ripples through Europe where there were concerns about the legitimacy of market forces' justifications for pay gaps at a time when under the EU Pay Transparency Directive employers are being required to show their gaps and justifications.
I've seen some headlines saying that Next won, but actually it's important to say they only partly succeeded.
But there are some really useful comments about market forces and when these can and can't be a valid reason for differences in pay.
And equal pay legislation is extremely complex.
So let's just remind ourselves of the legal framework first.
If two jobs done by a man and a woman are of equal value, the employer must pay the same rate for both unless there's a material factor which explains the difference.
OK, next bit.
If that factor puts one sex at a disadvantage, it's potentially indirect discrimination and the employer has to then justify it by showing it's a proportionate means of achieving a legitimate aim.
And simply saving cost is not a legitimate aim.
Yeah, I often find that we should have a diagram when it comes to equal pay claims.
The statistics showed that paying the retail workers, who were 77.5% women, less than Next's warehouse workers, 53% men, did put women at a particular disadvantage.
And this is where it gets really interesting because the EAT disagreed with the ET on some critical points.
Most significantly, Next was able to justify the difference in basic pay that was driven by market forces and the need for effective recruitment and retention of warehouse staff.
That's a big deal.
Instead of just asking whether NEXT could justify why it didn't pay more, the EAT said you need to look at the employer's aim fairly characterised as a whole.
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