7th September 2026
Clare Brennan comments on the limits of equal pay law in Personnel Today
Clare's comments were published in Personnel Today, 7 September 2026, and ICLG, 9 September 2026.
Clare Brennan, Partner in our Corporate & Commercial team, explores the dangers in assuming that every pay disparity amounts to discrimination. She noted that while workforce demographics are relevant, a difference in pay does not automatically mean that gender is the cause. Instead, employers must be able to demonstrate legitimate business reasons for differing rates of pay.
This comes after the Employment Appeal Tribunal (EAT) handed Next a significant victory in its long-running equal pay litigation, ruling that the retailer was entitled to pay warehouse workers a higher basic hourly rate than shop-floor staff where genuine recruitment and retention pressures justified the difference. The judgment overturns a key element of a 2024 tribunal decision that had strengthened equal pay claims brought by thousands of predominantly female retail workers.
A central issue in the case was Next's argument that it needed to offer higher pay to warehouse workers to attract and retain staff in a more competitive labour market. The EAT accepted that rationale, finding that market forces could justify different rates of basic pay where there was a genuine commercial need to do so.
Clare suggested that the law should recognise these commercial realities rather than seek to eliminate every market-driven pay difference. In her view, equal pay legislation is designed to address discrimination, not necessarily to remove all disparities that arise from differing labour market conditions. The judgment therefore serves as a reminder that unequal pay and unlawful discrimination are not always the same thing.
Read the full article on the Personnel Today website, [external link] and the ICLG website, [external link].
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