The wheels of equal pay turn slowly.  Much like the iconic London Eye, you may have to look twice to satisfy yourself that they are moving at all. But moving they are.

This Summer, the Employment Tribunal in Leeds ruled that several thousand sales consultants of the UK’s largest fashion and home retailer, Next, had succeeded in their group equal pay claim.

This is the first national equal pay action to succeed under the Equality Act 2010, but equal pay for work of equal value is hardly a new concept.

The principle was first set out in the 1950’s in Equal Remuneration Convention, 1951 and then in the Treaty of Rome in 1957.  The European Communities (as it then was) developed it further in the 1970’s with the Equal Pay Directive 75/117/EEC.  In 1983 the UK government (with some arm twisting from the European Court of Justice) added equal value claims to the Equal Pay Act 1970.

The parliamentary debate that preceded the addition was bad tempered and, occasionally, hyperbolic.  Removing pay discrimination between women and men performing the same jobs was, by then, largely uncontroversial.  But paying the same for work that bears little, if any, similarity, has always been more contentious.

‘You are not seriously saying that the shopwork at Next is as demanding as the warehouse work, are you?’, said an uncle to me last year at a family party.

His is not an exceptional point of view.

The idea that we should value physical men’s labour over less physical women’s labour is deep rooted and stubbornly persists at large.  It presupposes that physical effort is more demanding than mental effort and so merits a higher premium.  There is no objective rationale for affording physical effort, in isolation, a trump card status.

In the Next case, independent experts appointed to assist the tribunal in making its equal value decision, assessed the two jobs against eleven demands common to both. The experts concluded that the work undertaken by the sales consultants was of equal value to the jobs of the warehouse operatives. The Tribunal unanimously agreed with their conclusion.

It then fell to Next to prove the existence of a non-discriminatory material factor which explained the different pay rates for the two jobs. If it failed to do so, the sex equality clause, implied into the women’s contracts by the Equality Act, would take effect, giving them the benefit of the warehouse operatives’ better terms.

Next advanced a number of material factors but the core of their case depended on the difference in the market rates of pay.  It was all about costs, they argued, and sex did not come into it: warehouse work is paid more than retail work; Next therefore paid its warehouse workers more than its retail workers; and it need not pay more than the market rates.

The sales consultants argued that if the market alone was enough to justify the difference in pay, it would render the equal pay legislation toothless.

The Tribunal agreed that more than this was needed.

It accepted that Next set pay by reference to the different market rates.  Its task was to decide if the market was tainted by either direct or indirect sex discrimination.

The Tribunal found the latter.

It did not discount that historical attitudes and perceptions of the value of the respective jobs may have influence on the market rates but it declined to find that the Next sales consultants were paid less because they were women. The because in this case was held to be the drive to keep cost to a minimum and enhance profit.

But the Tribunal rejected that sex had nothing to do with the pay disparity. Next sets its pay rates by benchmarking against a market which is heavily gender segregated.  Warehouse work is predominantly male (over 80%). Retail work is a predominantly female based labour market.

Next argued that women wishing to overcome the shortfall in their pay could readily do so by choosing to work in a warehouse.  The Tribunal disagreed. It found that more women than men faced restrictions in the marketplace. Women  take on more parental and other caring responsibilities and so are less able to offer the same flexibility, additional hours or work outside the normal working week.

In these circumstances, Next needed to provide a reason for not paying equal work equally that went beyond saving or avoiding greater wage costs. The Tribunal found that they had failed to do so.

It is not the end. Next is appealing the decision to the Employment Appeal Tribunal. Keep an eye on the wheel.

Thandi and others v (1) Next Retail Limited (2) Next Distribution Limited – judgment available here.