A vic­to­ry by shopfloor staff from Britain’s clothes re­tail­er gi­ant Next at that coun­try’s Em­ploy­ment Tri­bunal may have a sig­nif­i­cant im­pact on oth­er busi­ness­es and, even­tu­al­ly, labour rul­ings else­where in the Com­mon­wealth.

Six years ago, store staff took the re­tail­er to Britain’s equiv­a­lent of the In­dus­tri­al Court to claim that they were earn­ing less than their ware­house col­leagues. And, the claimants ar­gued, that rep­re­sent­ed gen­der dis­crim­i­na­tion as most of the shop store staff are women.

The tri­bunal agreed with most of their claims, mean­ing that, as things stand, more than 3,500 cur­rent and for­mer shop staff will be en­ti­tled to back­pay that could to­tal some £30 mil­lion (or near­ly $270 mil­lion TT), ac­cord­ing to the law firm rep­re­sent­ing them.

The em­ploy­ees will al­so be en­ti­tled to an au­to­mat­ic equal­i­sa­tion of their con­tracts as far as hourly rates, paid rest breaks, and over­time pre­mi­ums are con­cerned.

Next’s rep­re­sen­ta­tives have stat­ed that they plan to ap­peal against the rul­ing, so it may take some time be­fore the out­comes are con­firmed and the im­pact on HR prac­tices across the re­tail sec­tor is ful­ly un­der­stood.

The case is par­tic­u­lar­ly in­ter­est­ing be­cause, al­though the judges re­ject­ed claims that Next was di­rect­ly dis­crim­i­nat­ing against women, they did ac­cept the ar­gu­ment that the com­pa­ny was in­di­rect­ly do­ing so by of­fer­ing low­er wages at the shops when com­pared to their ware­house jobs.

What the judges didn’t say was that all jobs at the re­tail chain should be paid the same, as the ar­gu­ments in the case cen­tred specif­i­cal­ly on whether the ac­tiv­i­ties per­formed by both shop and ware­house staff were of ‘equal val­ue’.

And, as an ear­li­er rul­ing in 2023 had de­ter­mined that the work by Next’s staff at their ware­hous­es and shops had equal val­ue, the bur­den fell on the com­pa­ny to prove its pay poli­cies did not con­sti­tute dis­crim­i­na­tion.

Next ar­gued that the pay dif­fer­ences were al­so re­lat­ed to mar­ket de­mands—that they need­ed to re­main com­pet­i­tive in ar­eas where de­mand for labour was high­er by of­fer­ing bet­ter pay and con­di­tions, and that it al­so need­ed to con­sid­er the com­pa­ny’s over­all prof­itabil­i­ty.

The tri­bunal re­ject­ed those ar­gu­ments, stat­ing that Next didn’t have a strong enough busi­ness case to ex­plain the in­di­rect dis­crim­i­na­tion and that it shouldn’t use mar­ket forces as a ‘trump card’ as, it ar­gued, this would ‘de­feat the ob­jec­tive’ of equal pay laws be­cause, it con­clud­ed, ‘low­er pay in par­tic­u­lar sec­tors due to in­di­rect­ly dis­crim­i­na­to­ry prac­tices could then be law­ful­ly sus­tained in per­pe­tu­ity’.

If the rul­ing is con­firmed af­ter Next’s ap­peal, it is like­ly to have con­sid­er­able im­pli­ca­tions for oth­er ma­jor re­tail busi­ness­es in the UK, es­pe­cial­ly su­per­mar­kets, giv­en their sig­nif­i­cant num­ber of em­ploy­ees in both the ware­hous­ing and re­tail­ing pro­duc­tion chain—and staff from oth­er ma­jor re­tail brands have al­ready start­ed sim­i­lar claims through the courts.

As our ju­di­cia­ry is based on Com­mon Law prin­ci­ples and close­ly fol­lows rul­ings from across Com­mon­wealth na­tions giv­en their sim­i­lar le­gal sys­tems, this Em­ploy­ment Tri­bunal case in Britain, if al­lowed to stand on ap­peal, is like­ly to have reper­cus­sions else­where, in­clud­ing here in T&T.

But, first, it is im­por­tant to un­der­stand where the rul­ing is com­ing from. What it is not say­ing is that busi­ness­es are not en­ti­tled to keep costs un­der con­trol to help them re­main prof­itable and not fol­low mar­ket con­di­tions to de­ter­mine their own pay pack­ages.

Or that every­one in a com­pa­ny should be paid the same, ir­re­spec­tive of the val­ue of their work to the busi­ness op­er­a­tions. What it is say­ing is that com­pa­nies can­not sim­ply use mar­ket forces or prof­itabil­i­ty ar­gu­ments to, on pur­pose or by ac­ci­dent, per­pet­u­ate pay dif­fer­ences that, di­rect­ly or in­di­rect­ly, re­flect the gen­der of the em­ploy­ees when the work is sim­i­lar in terms of val­ue or skills.

Or, the judges ar­gued, dis­crim­i­na­tion against women in the work­place will nev­er be tack­led if it is ac­cept­ed that a com­pa­ny must or can fol­low the ‘mar­ket rates’, even when that is es­sen­tial­ly gen­der-re­lat­ed.

Their ap­proach seems to make sense based on the fact this is not about equal­i­ty of pay with­out any dif­fer­en­ti­a­tion (and they al­lowed Next to main­tain its bonus schemes); in­stead, their main ar­gu­ment cen­tred on equal­i­ty be­tween men and women in the work­place.

But, as with any­thing in life, the dev­il is in the de­tail, and in how their rul­ing, as­sum­ing it will stand, will be in­ter­pret­ed by oth­er judges and oth­er in­dus­tri­al tri­bunals around the world. The de­tail is in the in­ves­ti­ga­tion in 2023 to es­tab­lish the val­ue of the work by ware­house and shop staff and whether it was equal across the two.

Be­fore any­one goes on jump­ing on the equal val­ue band­wag­on, it will be cru­cial to bet­ter un­der­stand the cri­te­ria used by those go­ing through the as­sess­ment, in­clud­ing the skills and ex­pe­ri­ence re­quired. And then comes the more com­plex mat­ter of how the judge­ment will be in­ter­pret­ed by oth­er tri­bunals, in­clud­ing our own In­dus­tri­al Court.

We seem to reg­u­lar­ly con­fuse so­cial jus­tice with a mis­guid­ed ver­sion of courts as a le­galised Robin Hood, tak­ing from the rich­er to give to the poor­er, ir­re­spec­tive of whether the case it­self is fair or not.

The rul­ing in this case is a lot more nu­anced than that and does not en­ter in­to the morals of prof­it in busi­ness or whether peo­ple should be paid more or less for their work, as this is not for tri­bunals but so­ci­ety as a whole to de­cide.

Should this rul­ing stand and our courts re­ly on it to de­cide on equal pay cas­es, they will need to ap­ply the same nu­anced and bal­anced think­ing. Af­ter all, true so­cial jus­tice is es­sen­tial­ly about equal op­por­tu­ni­ties and fair­ness for all, with­out dis­crim­i­na­tion on grounds of gen­der, race, faith, dis­abil­i­ty, and sex­u­al ori­en­ta­tion. It has nev­er been about wealth dis­tri­b­u­tion through the back door.