In November 2020, Amazon parked a truck outside Next’s retail warehouse in Elmsall, South Yorkshire with a digital screen advertising jobs at three logistics centres nearby. It was already hard for Next to recruit and retain workers and Amazon’s gambit made it tougher. Next paid bonuses to keep staff committed to what an employment tribunal called “life in a big metal box [with] piped music [and] the drone of machinery”.

It also paid them a higher basic rate than the mostly female staff in its retail stores, roles for which it got about 30 applications per vacancy. As a result, the tribunal ruled in 2024 that Next had broken equal pay law. The ruling was overturned this month by the Employment Appeal Tribunal in one of the most important private sector judgments since the concept of equal pay for work of equal value became part of UK law more than 40 years ago.

The appeal tribunal found that Next was justified in setting pay for the two jobs differently, although the work itself deserved equal treatment. Claims to equalise pay in stores and logistics centres have also been brought against the UK’s five biggest supermarkets and the appeal tribunal judgment, which could save them billions, came as a relief. “I read the [original] Next ruling and it left me speechless. This is not gender discrimination.

They’re just different labour markets,” one supermarket director told me. Equal pay proponents meanwhile argue that the Next judgment could entrench historic patterns of gender discrimination. “If this stands, it would be a huge hole [in equal pay law],” says Sandra Fredman, an Oxford university law professor. The principle of whether — and how — employers can cite market pressures to defeat claims may end up in the Supreme Court.

There was only a 53 per cent majority of male workers in Next’s logistics centres. That was enough to trigger the legal principle that work of equal value in terms of effort, skill and responsibility has to be rewarded equally, even when the jobs are different. The only defence is to prove that a “material factor”, notably the need to recruit and retain staff, justifies the gap.

Some content could not load. Check your internet connection or browser settings. The first tribunal accepted that Next found it hard to retain warehouse workers and had to pay some bonuses, but ruled against its disparity in basic pay with store staff.

Next could afford to pay the latter more and using market forces as a “trump card” would mean “indirectly discriminatory practices could then be lawfully sustained in perpetuity.”That goes to the heart of equal pay for equal value. The founding idea was that many jobs occupied by women, often part-time, were unfairly paid less than male-dominated roles. Pamela Enderby, an NHS speech therapist, won a groundbreaking case in 1993 to gain equal pay with pharmacists.

Many public sector organisations have been forced to change pay structures. This has had an encouraging effect. The median hourly pay of women full-time employees was 7 per cent less than for men in the UK last year, but the gap has roughly halved in 20 years.

The gap for all employees, both part-time and full-time, is about 13 per cent because more women work in lower-paid part-time jobs, including Next’s retail store workers. But retailing is far from the worst offender for unequal pay: the sector’s wage gap is lower than the average and well under that for professional and scientific jobs. Although pay disparities can reflect historic biases, the appeal tribunal found Next innocent: “This was not a case where warehouse workers were paid more simply because warehouse workers are paid more.