Ms M Thandi and Others v Next Retail Ltd and Next Distribution Ltd: 1302019/2018 and Others

EMPLOYMENT TRIBUNALS

Case No 1302019/2018

Between

Ms M Thandi and OthersClaimant

Next Retail Ltd and Next Distribution LtdRespondent

Before

Employment Judge D N Jones

Date 22 August 2024

JUDGMENT

For the material periods in their respective claims, the work of the lead claimants Helen Cherry, Amanda Cox and Alison Milton was of equal value to that of the comparators Calvin Hazelhurst, Steven Oliver, Richard Parker and Andrejs Zale.

REASONS

Introduction

[1]This is a hearing to determine whether the work of the three named lead claimants was of equal value to that of their chosen comparators. To answer that question, we must apply the provisions of section 65(6) of the Equality Act 2010.

[2]The Tribunal admitted the report of the independent experts Ms Spence, Mr Walls and Mr Holt dated 28 February 2023. That had been prepared following an order of the Tribunal under rule 3(1)(b) of Schedule 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

[3]Having considered the contents of that report, having had regard to the answers provided in writing by the experts on 17 April 2023 to written questions, having considered the short submissions of counsel for the claimant and respondents and noting that the respondents did not challenge the report (whilst it did not formally concede the findings and opinions), the Tribunal unanimously agrees with the findings and conclusions of the independent experts.

[4]A revised version of the report, to correct typographical errors in the original, is attached to this decision. Employment Judge D N Jones Date: 2 June 2023 REPORT of the INDEPENDENT EXPERTS In Case Number 1806552/2022 & Others Ms Thandi & others v Next Retail Limited 28 February 2023 Gill Spence Jonathan Holt Stuart Walls Corrected version issued 29 May 2023. In accordance with the Orders from Stage 3 h i 22 M 23 Contents CHAPTER ONE 1.0 INTRODUCTION ................................................................................................................. 6 CHAPTER TWO .................................................................................................................................. 7 2.0 METHODOLOGY ................................................................................................................. 72.1 Part A – General Approach ................................................................................................ 7

2.2 Part B – The Assessment of Work ...................................................................................... 92.2.1 The Choice of Scheme In this section we account for the development of the scheme we have used for the evaluation and comparison of the work of the claimant and the comparator.

2.2.2 The scheme that we have used to evaluate and compare the work of the claimants and their comparators is what is commonly called a Factor Analysis Scheme. We account for our choice of factors used and discuss the areas covered by these factors.

2.2.3 The objective of such a scheme is to analyse the work done against the defined demands and skills described in the Factors used.

2.2.4 The Choice of Factors Considerable research has been undertaken in the selection of factors in this case. A number of factors that are often used in equal value cases are obviously irrelevant to these jobs – such as care of others.

2.2.5 The jobs that we are concerned with in this case undertake work at different type of workplace, but the factors we have identified are relevant to all areas of work done by both Claimants and Comparators. They are; In Chapter Three each factor is further defined by a hierarchy of defined levels or criteria against which the work will be assessed.

2.2.6 As far as possible, the factors chosen should be capable of reflecting the job elements of all of the work done by every individual in the population to be assessed. This does not mean that factors are chosen to match the work done, task by task. This is because we do not assess the work on the basis of every task performed per se but rather by looking at the demands made on, and the skills used by, the job holders in the performance of their tasks. There is, however, a persistent and often difficult dilemma which we regularly encounter in choosing the factors to be used in an equal value case.

2.2.7 In the first instance there is an inherent danger in proceeding on the basis of tasks determining factors or becoming actual factors. This is because care must be taken to avoid choosing as factors, work elements which are unique to one type of work.

2.2.8 For example if we were comparing a Personnel officer with a Pensions Officer it would be unfair to have as a factor - Knowledge of Pensions Legislation. What would be fairer would be to use a factor called Knowledge of Legislation which assessed the level of knowledge of legislation required in both jobs.

2.2.9 However, it is also unfair to exclude a factor simply because it seems to apply only to one type of work that is unique to either a claimant or a comparator. For example, it would be wrong to exclude Responsibility for Health and Safety as a factor simply because a claimant or comparator was a Health and safety Officer.

2.2.10 In dealing with the question of Work of Equal Value, the assumption is that we are dealing with different work. It therefore seems to be axiomatic that the choice of factors used must enable us to assess different types of work against the same criteria.

2.2.11 This is perhaps best summed up in the following basic rules of good practice. As far as is practically possible; The factors chosen should be such that all of the identified work elements in the work of the claimant (s) and the comparator (s) can be realistically assessed against all of them. Where a factor is chosen or so defined that only the work of the claimant (s) or the comparator (s) can be realistically assessed against it, then care must be taken to ensure that, within the range of factors chosen, there are balancing elements.

2.2.12 Weighting In some schemes, despite adherence to the principles set out above, the designers of the scheme decide to weight one or more of the factors.

2.2.13 Weighting is done in several ways. Explicit weighting is where a particular work element or group of work elements are deemed to be of greater importance than the others and a multiplier is applied to the scores actually allocated to the work assessed under those factors. For example, it might be thought that Knowledge was more important than other factors and, although there might be a potential of ten points for each factor, a weighted scheme would multiply the score for knowledge by a factor of two or three.

2.2.14 Discrete weighting can occur where some factors have more levels or a higher potential score than others. For example, in some schemes Decision Making or Know How might have five or six levels, while there might be only three in others. In the scheme developed for this case, all of the factors have the same number of levels and the same maximum potential score.

2.2.15 Secondly, discrete weighting can occur where there are a number of factors which seem to be dealing with different manifestations of what is essentially the same skill set or type of demand on the job holder.

2.2.16 Generally, it is our view that discrete weighting has no place in a scheme used to assess work in an Equal Value case. That is because it will almost always be based on a preconception about the value of certain work elements.

2.2.17 Preconceptions of this sort must always be avoided by Independent Experts. Any scheme which has as its starting point - "This qualification is paramount” or that “This skill is vital” is nearly always going to be biased or at least open to charges of bias or discrimination.

2.2.18 For the purposes of this report we have sought to design a scheme which is fair to all of the parties and where the assessment of the work of the claimants and the comparators is carried out against criteria that are applied equally to all. We seek to avoid implicit or covert weighting by ensuring that every factor has the same number of levels and all of them have the same potential scores.

2.2.19 Chapter Three sets out the assessment scheme in full and includes a definition of the scope of each factor as well as the level definitions and scores. Chapter Three also includes an explanation of the different methods of analysing and drawing conclusions from the comparative scores. 2.3 Part C – Information Used in the Assessments

2.3 Part C – Information Used in the Assessments ................................................................. 11 CHAPTER THREE .............................................................................................................................. 12 3.0 ASSESSMENT SCHEME and SCORING SYSTEM ................................................................. 12 CHAPTER FOUR ............................................................................................................................... 30 4.0 The Work of the Claimant Helen Cherry .......................................................................... 302.3.1 The only information used in these assessments is that contained in the final job descriptions sent by the parties to the IEs following the Stage 2 hearings and finding of facts by the Tribunal

2.3.2 The IEs have taken into account ALL the information included in these job descriptions.

2.3.3 In each assessment we have cited paragraphs from the job descriptions. These are a sample of some of the paragraphs that we took into account when assessing the job. We consider that it is only necessary to refer to some duties, as once a level has been reached further duties of the same level will not affect the assessment.

2.3.4 A number of job holders carried out different duties during the reference period. We have considered ALL these changes. Some of these did not result in an alteration of the assessment and are not shown separately. Where changes were considered significant, alternative assessments have been carried out. In cases such as this, in order to clearly differentiate between job versions, the original Claimant/Comparator’s name has been suffixed by “1” and a descriptive element added to their job title. Subsequent versions have the name suffixed with “2”, and the additional descriptor(s) added. CHAPTER THREE 3.0 ASSESSMENT SCHEME and SCORING SYSTEM The following pages detail the Assessment Scheme specifically designed for this exercise, including the definitions of factors, factor levels and the criteria for modifying level assessments as higher or lower than the standard level of demand or responsibility.

4.1 Helen Cherry 1 (Up to Dec 2019) ..................................................................................... 30

4.2 Helen Cherry 2 (After Dec 2019) ...................................................................................... 36 CHAPTER FIVE ................................................................................................................................. 42 5.0 The Work of the Claimant Amanda Cox .......................................................................... 42

5.1 Amanda Cox 1 (2012 - 2015) ........................................................................................... 42

5.2 Amanda Cox 2 (2015 - 2021) ........................................................................................... 48 CHAPTER SIX ................................................................................................................................... 54 6.0 The Work of the Claimant Alison Milton ........................................................................ 54

6.1 Alison Milton 1 (2012 - 2015) .......................................................................................... 54

6.2 Alison Milton 2 (2015 - 2021) .......................................................................................... 60 CHAPTER SEVEN .............................................................................................................................. 66 7.0 The Work of the Comparator Calvin Hazelhurst ............................................................. 66 CHAPTER EIGHT .............................................................................................................................. 72 8.0 The Work of the Comparator Steven Oliver ....................................................................... 72 CHAPTER NINE ................................................................................................................................ 78 9.0 The Work of the Comparator Richard Parker ..................................................................... 78 CHAPTER TEN .................................................................................................................................. 84 10.0 The Work of the Comparator Andrejs Zale ......................................................................... 84 CHAPTER ELEVEN ............................................................................................................................ 91 11.0 Comparisons between the Work of the Claimants and the Comparators .......................... 91 CHAPTER ONE 1.0 INTRODUCTION

1.1 This report concerns whether the claimants Helen Cherry, Amanda Cox and Alison Milton, undertake work of Equal Value to the work done by the comparators Calvin Hazlehurst, Steven Oliver, Richard Parker and Andrejs Zale.

1.2 In this report the Independent Experts are required to answer the question as to whether each individual claimant does or does not undertake work of Equal Value to each of the named comparators.

1.3 Some jobs in both groups have different sets of duties and responsibilities during different periods. For the purposes of this report these jobs have each been examined for each period as if they were separate jobs and identified as such by the addition of a sequential number to the claimant’s/comparator’s name, unless the differences were considered insufficient to alter the original assessment, in which case they are not shown as a separate role in this report.

1.4 The Independent Experts have assessed the work of all these job holders against the criteria of the Assessment Scheme (detailed in Chapter 3) and awarded factor levels and scores.

1.5 These assessments and scores are recorded in the various chapters under the job holder’s name.

1.6 We have not and do not compare the work of claimants and comparators during the assessment phase. Comparisons are only undertaken after all assessments have been finalised.

1.7 Evidence & Process - in preparing this report the Independent Experts have relied on the facts as agreed or found by the Tribunal and on no others. These facts were detailed in the final job descriptions sent to us by both parties following the Stage 2 Hearings and the Finding of Facts by the tribunal.

1.8 Comparisons of assessed levels and scores with each comparator are shown in Chapter 11.

1.9 Conclusions on the question of Equal Value are also set out in Chapter 11.

1.10 We are always mindful that it is the Tribunal that decides the issue of Equal Value and in that context this report is presented to the Tribunal as no more than the Independent Experts’ recommendation on the question of Equal Value CHAPTER TWO 2.0 METHODOLOGY 2.0.1 In this section we discuss the various aspects of methodology relevant to our report and the assessment of the work of the claimant and the comparators. PART A Is a general discussion of the recommended approach to the assessment of Equal Value. It focuses on the differences between an Equal Value Assessment and a job evaluation scheme and the relevance of these to the current case. PART B discusses and sets out the approach we will use to assess the work of the claimant and the comparators, the scoring systems and the development of the scheme. PART C deals with the information used in the assessments. 2.1 Part A – General Approach 2.1.1 There are several essential differences between an assessment of work carried out for an Equal Value investigation and the evaluation of jobs in a job evaluation scheme. 2.1.3 The first and probably the most significant difference is that there is difference of purpose between the two. In an Equal Value case, the Independent Experts are asked to answer a straightforward question - "Whether or not X does or does not do work of equal value to Y" 2.1.4 In a job evaluation scheme, the purpose is to evaluate a population of jobs in order to establish the relativities between all of them. The eventual outcome envisaged is the grading of jobs and the application of pay bands to grades. 2.1.5 In an Equal Value case - even where there are several claimants and several comparators who may be doing a variety of jobs - we must still remain focussed on the simple question of whether in each instance X does or does not do work of Equal value to Y. 2.1.6 It is important to note we are concerned with assessing the value of work undertaken and expressly NOT producing a grading scheme. 2.1.7 Even though the methodologies used by Independent Experts in Equal Value cases may rely on the same sort of evaluation techniques as those used in job evaluation schemes, we should not make the mistake of then assuming that other similarities or comparisons between job evaluation schemes are valid or helpful. 2.1.8 This is because of the difference in purpose between the job evaluation scheme and the Equal Value assessment and comparison of jobs which also leads to differences in approach to the matter of the evaluation or assessment of jobs. 2.1.9 A primary difference, and one that is all too easily forgotten, is that in the case of a job evaluation scheme - designed for and applied in a commercial or public organisation - the actual procedure that leads to the evaluation of each job is one that involves discussion, consensus and possibly negotiation and compromise. This is likely to be the case whether or not the process involved representatives of interested parties such as trade unions or was wholly carried out by managers. 2.1.10 A job evaluation scheme is also likely to employ techniques that are not used in an Equal value assessment such as the identification of benchmark jobs. Many job evaluation schemes will rely heavily on such benchmarking in order to slot jobs into pre-determined grades. They are rarely if ever concerned with the detailed comparison of one job with another which is precisely the focus of an Equal Value assessment. 2.1.11 Because, as we have indicated, a job evaluation scheme is intended to serve a different purpose, it will very often take a more generalised and less detailed approach to job analysis and evaluation. 2.1.12 The other significant characteristic of a typical Job evaluation scheme that is not used in an Equal Value assessment is that of ‘weighting’. This is where aspects of the scheme (“Factors”) are chosen or weighted to reflect those aspects of the work/jobs that the commissioning organisation believes to be important. 2.1.13 The assessment scheme that we have used in this instance is one that is tailored to enable us to answer the question of Equal Value. In order to do so and in order to make the one-on-one comparisons required, the scheme must be capable of analysing and evaluating the work in some detail. This means that we may use more or less factors than are usually employed in a job evaluation scheme and not include ones that have no relevance to the work undertaken by any of the job holders. For instance, a factor concerning the care of others would not be included where none of the job holders undertook this type of work. 2.1.14 The scheme that we have used to analyse and assess the work of the claimants and the comparators is a factor analysis scheme which enables us to make one-on-one comparisons. We are thus able to answer the question whether any particular claimant does or does not do work of equal value to their comparators. 2.1.15 The scheme that we use must be fair when applied to the work of the claimant and to that of the comparators. It should neither implicitly or explicitly favour, or appear to favour, one type of work over other types of work. 2.1.16 Care must be taken to avoid being influenced by institutional or cultural bias. It is not uncommon for an organisation to have a view of which jobs or types of work are more important to it. Usually this involves the weighting of an evaluation scheme in favour of those jobs or types of work or work elements that are considered important. It may not however be so overt. 2.1.17 For example it is not uncommon when designing job evaluation schemes in manufacturing and commercial organisations to be asked to include a factor which deals with the relationship of the work to production or sales. 2.1.18 In objective terms, the organisation commissioning the job evaluation scheme will make a case for a scheme that favours work that is central to its activities and which will give less value to what it sees as peripheral jobs. 2.1.19 In the public sector we have noticed the tendency to weight those factors concerned with knowledge or with managerial or supervisory responsibilities. There is nothing intrinsically wrong with this if that is what those who commissioned the schemes in question preferred and wanted to see rewarded in the grading and pay structure that follows. 2.1.20 It is our very firmly held view that weighting - particularly by means of weighting the scores for certain factors - has no place in the assessment of the work in an Equal Value case. 2.1.21 The reason for this is very simple. There is no objective basis on which an Independent Expert could justify whatever weighting or form of weighting they chose to apply to their assessment scheme. 2.2 Part B – The Assessment of Work

3.1 Each of the eleven factors features five levels as follows; A High Scoring 70 points B Moderately High Scoring 55 points C Standard Scoring 40 points D Moderately Low Scoring 25 points E Low Scoring 10 points

3.2 Each level assessment may be modified by a secondary consideration shown under the general factor description in each factor.

3.3 A modifier of “+” adds 5 points to the factor score.

3.4 A modifier of “-“ deducts 5 points from the factor score.

3.5 The Assessment Scheme 3.5.1 KNOWLEDGE

Considers knowledge/skills obtained.	the depth and breadth of general education and specialist job holders require to carry out duties, and how this knowledge is
Moderated (+ knowledge.	or –) for range of equipment, products and/or processes requiring specialist
LEVEL	LEVEL DESCRIPTION
A	A thorough knowledge of the policy framework, corporate aims and procedural architecture of the whole workplace will be required to manage one or more operations, staff groups, or both. The experience necessary to achieve this level of technical and organisational expertise will be obtained through exposure to several annual work cycles in at least two or three different operational areas.
B	Experience in a wide range of managerial/technical/practical skills in several roles will be necessary. A thorough understanding of the operational policies and procedures of the whole workplace/premises will be necessary and this knowledge is likely to have been gained through hands-on working through several annual cycles.
C	Experience/training in a range of technical/practical skills will be necessary to fulfil the duties of the role. Job holders will also have a good understanding of the work of associated teams in their workplace. This knowledge will have been gained through a combination of on-the-job guidance from colleagues and supervisors and more formal, certificated in-house training. A few months exposure to regular work cycles will be necessary to achieve standard competence.
D	Basic literacy and maths skills sufficient to read and understand work related documentation such as operating instructions or H&S advisory materials are required. Some experience of team working, customer service or the use of tools, equipment and/or IT will be expected. Essential knowledge of NEXT specific procedures, rules, standards, equipment and IT systems will be learned on the job over a few weeks.
E	No experience or academic qualifications are required, and the skills and organisational knowledge required for adequate performance in the role will be learned within hours.

LEVEL	DESCRIPTION	Modified “ – “	Standard	Modified “ + “
A	High	65	70	75
B	Moderately High	50	55	60
C	Moderate	35	40	45
D	Moderately Low	20	25	30
E	Low	5	10	15

[4]3.5.2 PLANNING AND ORGANISING

The others to	responsibility to manage and/or prioritise the job holder’s own work and that of achieve efficiency, quality and appropriate standards.
Moderated of operations the degree	(+ or - ) by size of team managed/supervised AND/OR by the number or processes for which the job holder plans and organises AND/OR to which forward planning is required
LEVEL	LEVEL DESCRIPTION
A	The job holder manages the work of others in a business unit and is responsible for the quality of that work. The job holder will have responsibility for formal HR functions such as recruitment, workforce planning and service quality across an entire business unit. The job holder will be responsible for the planning/organisation of the work of the business unit for a short/medium period.
B	The job holder manages the work of others in a team and is responsible for the quality of that work. The job holder may have responsibility for a number of HR functions such as, rota planning, absence management and service quality across a team. The job holder will be responsible for the planning/organisation of the work of the team for a short period.
C	The job holder is responsible for the daily organisation of their own work as set by and directed by others. While the job holder is deemed to be responsible for the quality and standard of their own work in the first instance, they will be subject to occasional or periodic monitoring by others. They may be assisted by other staff from time to time whose work they may organise but they will have no direct management or supervisory role.
D	The job holder has a limited responsibility for organising their own work on a daily basis within the framework of set routines. The job holder will work to set standards and quality and will be regularly monitored by others. They have no involvement in organising the work of others.
E	The job holder works in a role where their work and targets are pre- set. The quality and standard of work is maintained through frequent checks and monitoring by others.

LEVEL	DESCRIPTION	Modified “ – “	Standard	Modified “ + “
A	High	65	70	75
B	Moderately High	50	55	60
C	Moderate	35	40	45
D	Moderately Low	20	25	30
E	Low	5	10	15

[4]3.5.3 RESPONSIBILITY FOR ASSETS

Considers physical monitoring,	the responsibility for the job holder to order, use, maintain or handle assets such as goods/stock, tools, equipment or premises AND/OR the recording and security of financial or data assets.
Moderated	(+ or –) for the volume/value of assets.
LEVEL	LEVEL DESCRIPTION
A	The job holder will have specific accountability for the maintenance and security of equipment and materials, stores, data or other resources. The job holder will also be accountable for a budget allocated to the function. Alternatively, the job holder has a specialist role in terms of the high level administration of financial and monetary transactions and/or data systems.
B	The job holder has a delegated responsibility for the maintenance and security of high value goods/stock, equipment or resources (which constitutes more than 50% of the duties) and may have involvement with setting and using a budget. Alternatively, the job holder is involved in cash or confidential data handling which will be the main purpose of the job, and/or processing transactions for which they are accountable.
C	The job holder will have a specific but limited responsibility for the maintenance and security of equipment and other resources allocated to them or their work group for their use, used at their place of work. AND/OR They will have a role in ordering some supplies or replacement equipment in consultation or with the approval of others. Alternatively, the job holder is involved in cash, electronic payments or critical data handling when undertaking some duties.
D	The job holder has a limited responsibility for the maintenance and security of equipment and resources including electronic data. This will usually be concerned with a limited range of items allocated to them and used at their place of work. They may occasionally handle cash, electronic payments, process deliveries or the equivalent.
E	The job holder has no responsibility for equipment, goods or resources other than that of the normal duty of care expected of any employee. They have no financial involvement or responsibilities.

LEVEL	DESCRIPTION	Modified “ – “	Standard	Modified “ + “
A	High	65	70	75
B	Moderately High	50	55	60
C	Moderate	35	40	45
D	Moderately Low	20	25	30
E	Low	5	10	15

[4]3.5.4 RESPONSIBILITY FOR HEALTH AND SAFETY

Takes account safety and assessed	of the job holder’s responsibility for ensuring their own health and that of others. (We are not concerned here with risks to the job holder - in Work Environment)
Moderated consideration	(+ or - ) by proportion of regular duties impacted by active of H&S issues.
LEVEL	LEVEL DESCRIPTION
A	The job holder has a specialist role where there is an enhanced requirement for safe practice in relation to their own work and the safety of others including members of the public.
B	The job holder has a direct responsibility for safety and safe practices within a limited and defined area such as a small team or work group. They are responsible for knowing and applying regulations and procedures relating to safe working within the team or work group and in areas where members of the public are present.
C	The job holder is responsible for ensuring safe working in their own practice and, as appropriate, when working with or alongside others and/or members of the public. They are responsible for knowing and observing regulations and procedures relevant to their own work.
D	The job holder will be required to observe safety regulations or safe practice in so far as they apply to specific areas of their own work. It is expected that the majority of their work will not require the adherence to or knowledge of specific regulations.
E	The job holder works almost exclusively in a low - hazard environment such as an office and/ or has no role other than a general duty of care in respect of health and safety.

LEVEL	DESCRIPTION	Modified “ – “	Standard	Modified “ + “
A	High	65	70	75
B	Moderately High	50	55	60
C	Moderate	35	40	45
D	Moderately Low	20	25	30

[4]RESPONSIBILITY FOR COMMUNICATIONS AND CUSTOMER 3.5.5 SERVICE

Responsibility external reputation.	to create and maintain relationships, communicate with customers, agencies, internal clients and other staff, and maintain corporate
Moderated communicating	by + or – by breadth of contact types AND/OR proportion of time spent with others.
LEVEL	LEVEL DESCRIPTION
A	The job holder encounters difficult people or situations which may be emotionally demanding and which are a regular and important aspect of the work, managing these situations without support and/or Maintains and/or improves corporate reputation through high responsibility for customer service usually as a supervisor or team leader and/or Information exchange regularly includes complex advisory material requiring careful explanation and/or adaptation to suit the audience.
B	The job holder encounters difficult people or situations which may be emotionally demanding but will be limited to specific tasks or duties and with limited support available and/or The visibility of the role to customers, external agencies or internal clients is such that the reputation of the unit is daily dependent upon the job holder and/or Information is predominantly factual but difficult to convey because of its complexity or the need to adapt the message to suit the audience.
C	The job holder will encounter difficult people, situations or incidents which may be challenging. Support from others is readily available and/or Interacting with customers, external agencies or internal clients is an integral part of the role and/or Information is factual but can be complicated and/or technical in nature and it will be necessary to ensure the intended recipient(s) have understood the message.
D	The job holder’s interactions are straightforward. Difficult people or situations are rarely encountered, and support from others is always available and/or Interaction with customers, external agencies or internal clients will be expected, but will not be the main purpose of the job and/or Information is factual and straightforward but might occasionally require basic guidance or a simple explanation of terms to those unfamiliar with the subject matter.
E	The job holder will have no direct contact with customers/internal clients outside the existing management structures in place. Information is factual, straightforward and uncontentious.

LEVEL	DESCRIPTION	Modified “ – “	Standard	Modified “ + “
A	High	65	70	75
B	Moderately High	50	55	60
C	Moderate	35	40	45
D	Moderately Low	20	25	30
E	Low	5	10	15

[4]3.5.6 TRAINING AND MENTORING

Considers	the need for job holders to train or mentor other employees.
Moderated	(+ or –) for the frequency of demand.
LEVEL	LEVEL DESCRIPTION
A	The job holder has a formal responsibility, which may involve working with others, for training/teaching. The job holder is regularly involved with others in the planning of training or teaching - and will themselves produce training material and/or be involved in the delivery of training/teaching. They will be involved in advising other staff about training techniques, procedures and methods It is likely that this will form a substantial part of the job holder’s duties.
B	The job holder has a recognised responsibility, working with others, to plan and arrange training or teaching for the section or be involved in training/ mentoring and advising others in respect of methods, techniques and procedures, as part of a formal process such as an NVQ.
C	The job holder is involved in training or demonstrating in respect of new starters or trainees who will be assigned to work with the job holder either for specific duties or the whole/part of a shift. Such involvement is likely to be on a one to one basis rather than with groups.
D	The job holder’s role is limited to the demonstration of simple work routines with no requirement for formal training, teaching or mentoring.
E	There is not usually any requirement for the job holder to be involved in teaching, training or mentoring others.

LEVEL	DESCRIPTION	Modified “ – “	Standard	Modified “ + “
A	High	65	70	75
B	Moderately High	50	55	60
C	Moderate	35	40	45
D	Moderately Low	20	25	30
E	Low	5	10	15

[4]3.5.7 MENTAL DEMANDS

Measures required as	the degree of mental concentration, accuracy, alertness, and attention well as changing deadlines and how much the work is interrupted.
Moderated concentration	(+ or - ) by frequency of interruptions AND/OR the amount of and accuracy required.
LEVEL	LEVEL DESCRIPTION
A	The work is subject to constant change and unpredictable work schedules, and requires the continuous management of conflicting priorities and deadlines. Concentration and accuracy are required for a large majority of duties and the job holder’s attention is disrupted by frequent unavoidable interruptions.
B	The work is subject to deadlines involving frequently changing circumstances and conflicting priorities; or deadlines which are difficult to meet, interruptions or conflicting demands, and changes to work schedule will have to managed at little notice. Concentration and accuracy are required frequently or for prolonged periods for the majority of tasks.
C	The job holder is expected to meet deadlines for the majority of tasks which will be subject to interruptions involving differing and/or changing problems, circumstances or demands, with some changes to work schedules. Concentration is required for the majority of tasks and accuracy is important for some tasks.
D	The role is subject to interruption to tasks but does not involve any significant change to its programme of work. Some work is subject to easily met deadlines. Concentration and accuracy will be required from time to time but nearly always in the context of a singular aspect of a short term physical or mechanical activity.
E	The work requires similar tasks which are not normally interrupted and the overall objectives do not change each day. Few targets need to be met. The requirement for concentration and / or accuracy is limited to tasks performed only occasionally.

LEVEL	DESCRIPTION	Modified “ – “	Standard	Modified “ + “
A	High	65	70	75
B	Moderately High	50	55	60
C	Moderate	35	40	45
D	Moderately Low	20	25	30
E	Low	5	10	15

[4]3.5.8 PROBLEM SOLVING AND DECISION MAKING

Considers the job holder	the scope and complexity of judgements and problems experienced by and the impact and autonomy of their decision making.
Moderated	(+ or –) for frequency of demand for problem solving/decision making.
LEVEL	LEVEL DESCRIPTION
A	Problems are often escalated from subordinates and can be complex in that they require the analysis of several different strands of information. Written rationales may well be required and decisions will set precedents that may be incorporated into standard operating instructions.
B	Problems can be quite hard to understand due to their novelty or complicated nature. Decisions made may set minor precedents for subordinates or colleagues and will require consideration or analysis.
C	Problems require some investigation before judgements and decisions can be made and there will be a number of options to consider. The scope of decisions made, and advice offered, will be limited to non- critical areas and the impact will be short-term.
D	Problems and judgements are straightforward to understand. Any decisions made will be within a limited, well understood framework with more significant issues being referred to a supervisor or manager.
E	Any problems encountered in the role are short-term, very straightforward, and with readily available solutions coming from close supervision and/or established practice.

LEVEL	DESCRIPTION	Modified “ – “	Standard	Modified “ + “
A	High	65	70	75
B	Moderately High	50	55	60
C	Moderate	35	40	45
D	Moderately Low	20	25	30
E	Low	5	10	15

[4]3.5.9 PHYSICAL SKILLS

Considers the use of	the job holder’s need to exercise particular manual skills or dexterity in tools and equipment.
Proportion Less than	of working time spent at the skill level indicated. More than 75% = "+". 25% = "-".
LEVEL	LEVEL DESCRIPTION
A	The work requires specific, trained skills requiring a very high degree of dexterity, eye-hand coordination AND sensory skills in order to manipulate machinery, tools, goods and/or electrical equipment. Such skills are learnt by lengthy formal training with certification required before employees can commence tasks. Precision and speed in execution are always required
B	The work requires specific, trained skills requiring a high degree of dexterity, eye-hand coordination AND/OR sensory skills in order to manipulate machinery, tools, goods and/or electrical equipment. Such skills are learnt by formal training with certification required before employees can commence tasks. Precision and speed in execution are always required.
C	The work requires specific, trained skills requiring dexterity AND/OR eye-hand coordination AND/OR sensory skills in order to manipulate machinery, tools, goods and/or electrical equipment. Such skills are generally learnt by formal training which may be learned under supervision whilst carrying out duties. Precision AND/OR speed in execution is usually required.
D	The work requires some physical dexterity and coordination in order to manipulate goods, machinery, tools, electrical equipment or hand held devices. Such skills are generally learnt by informal demonstration or very short formal tuition. Some precision AND/OR speed in execution is required.
E	No particular dexterity and hand-eye co-ordination skills are required in the course of normal working.

LEVEL	DESCRIPTION	Modified “ – “	Standard	Modified “ + “
A	High	65	70	75
B	Moderately High	50	55	60
C	Moderate	35	40	45
D	Moderately Low	20	25	30
E	Low	5	10	15

[4]3.5.10 PHYSICAL DEMANDS

Considers discharging	the demands on the individual to exert themselves physically in their duties.
Moderated effort.	(+ or - ) for combination of awkwardness/fixedness and degree of
LEVEL	LEVEL DESCRIPTION
A	In addition to B below, the job cannot be performed without the constant application of physical effort such as digging, lifting, pulling or moving heavy equipment, materials.
B	The job involves frequent but not constant lifting, pulling, pushing of heavy objects and equipment as above. Alternatively, the job holder will be required to stand/walk for long periods equating to over 80% of their shift or will be obliged to maintain a more or less fixed posture in order to carry out the majority of tasks associated with the job.
C	There is a regular but not frequent need to push, lift or manoeuvre objects, equipment, materials which may be heavy. Alternatively the job holder will be required to stand/walk for over 50% but less than 80% of their shift or will obliged to maintain a fixed posture for regular periods in order to carry out specific tasks associated with the job.
D	In the context of other non - arduous physical activities there may be an occasional requirement to lift or move objects or materials some of which may be heavy. Alternatively, the job holder will be required to stand/walk for over 20% but less than 50% of their shift or there will be a limited need to adopt a fixed posture for some tasks.
E	Physical effort is an occasional requirement of the role for example helping to unload a regular weekly delivery of goods or materials.

LEVEL	DESCRIPTION	Modified “ – “	Standard	Modified “ + “
A	High	65	70	75
B	Moderately High	50	55	60
C	Moderate	35	40	45
D	Moderately Low	20	25	30
E	Low	5	10	15

[4]3.5.11 WORKING CONDITIONS

Consideration reference Account is appropriate	of the environment(s) in which work is carried out with particular to unpleasant, hazardous or otherwise challenging work elements. taken of the statutory requirement to mitigate exposure by the use of PPE a
Moderated demand of	(+ or - ) for the proportion of working time exposed to the maximum the factor.
LEVEL	LEVEL DESCRIPTION
A	Work is carried out in a difficult environment featuring extremes of some or all of the following; temperature, extremely high noise levels, smells/fumes, other hazardous materials. These will be experienced over 50% of the job holder’s work, over a 6 month period. There is a recognised risk of injury or to health and there are set procedures including PPE in place to protect the job holder which must be observed.
B	Work is carried out in a difficult environment featuring extremes of some or all of the following; temperature, extremely high noise levels, smells/fumes, other hazardous materials. These will be experienced for less than 50 % of the job holder’s work, over a 6 month period. There is a recognised risk of injury or to health and there are set procedures including PPE in place to protect the job holder which must be observed.
C	Work is carried out in environments which are noisy and/or busy, or which expose the job holder to unpleasant features such as spillages or hazardous materials. For shorter periods, jobholders may be exposed to more undesirable elements such as inclement weather, extremes of temperature, very high noise levels and/or proximity of machinery or equipment. During these periods, there may be a recognised risk of injury or to health and there are set procedures including PPE in place to protect the job holder which must be observed.
D	Work is carried out in indoor environments which can sometimes be noisy and/or busy, or which expose the job holder to unpleasant features such as spillages or hazardous materials requiring the use of PPE (which may be optional).
E	Work is carried out in an environment such as an office with only minimal exposure to unpleasant elements or physical risk.

LEVEL	DESCRIPTION	Modified “ – “	Standard	Modified “ + “
A	High	65	70	75
B	Moderately High	50	55	60
C	Moderate	35	40	45
D	Moderately Low	20	25	30
E	Low	5	10	15

[4]3.6 There is no guidance for Independent Experts as to what results in what circumstances indicate that work is of equal value. We take the view that the conclusions of the Independent Expert(s) are no more than an informed recommendation to the Tribunal who will decide the question. That recommendation should, however, be based on a reasonable interpretation of the facts and of the results of the expert’s analysis and assessment of the work of the claimant and the comparators. 3.7 We have, in previous cases and reports, adopted the following criteria as tests of whether or not a claimant does work of Equal Value to a comparator. 3.8 TEST ONE The first test is whether or not the claimant has scored within 3 percentage points of the percentage point score (out of the maximum 825 points in this case) for each of their comparators. If this is the case, then in our view there is at least a strong case to answer in terms of Equal Value. 3.9 TEST TWO The second test counts the number of factors in which the work of the claimant has been assessed as equal to, or higher than, their comparator(s). Given the 11 factors employed in this scheme, the claimant will have a case for their job being potentially of equal value if this number is 6 or more. Although the actual scoring system used involves a range of scores at each level we believe it is simpler for this second test to deal only in terms of the actual levels allocated, “A”, “B”, “C” etc rather than attempt to encompass the more subtle variations of scores within the levels. This is essentially what is commonly called a “More Than/Less Than” test. 3.10 TEST THREE The third test is to conduct a comparison on a factor by factor basis whereby we award 0 where the claimant has scored the same as a comparator; +1 where the claimant has scored a whole level up from the comparator (again excluding the “-“ or “+” modifiers); +2 where the claimant has scored two whole levels up from the comparator and so on. The same process is applied in reverse where the claimant scores a level or more less than the comparator. By totalling the positive and negative score differentials we can establish a cumulative comparative score of plus or minus X over the whole eleven factor results. A cumulative score of 0 or greater may be considered to indicate possible Equal Value. 3.11 None of the tests applied are intended to be definitive or exclusive in terms of establishing equal value in themselves. They should be considered together and interpreted as three sets of supportive evidence in reaching a conclusion on the question of equal value. 3.12 In this case, the Independent Experts have concluded that instances where two or more of the three tests detailed above indicate that the claimant’s role is at the same level or higher than that of their comparator, there should be a strong presumption of Equal Value. CHAPTER FOUR 4.0 The Work of the Claimant Helen Cherry 4.1 Helen Cherry 1 (Up to Dec 2019) exhaustive lists. First, second and third tier paragraph numbers (eg “2”, “2.3”, “2.3.7”) may necessary to fulfil the duties of the role. Job holders will also have a good understanding of house training, which will include regular updates. 486. 493. 488. 492. 487. 491. 469. 490. 489.464.

465.

466. 472. 473. 474. 483. work on a daily basis within the framework of set routines. The job holder will work to set 530. 529. 504. 528.a.  Considers the responsibility for the job holder to order, use and maintain physical assets budget. Alternatively, the job holder is involved in cash or confidential data handling which accountable. Modified to "+" for the job holder's responsibility for significant volumes of 507. 515. 517. 514. 508. 516. 509. 512. 513. 518.  Takes account of the job holder’s responsibility for ensuring their own health and safety public. They are responsible for knowing and observing regulations and procedures relevant 524. 525. 523. 526. emotionally demanding but will be limited to specific tasks or duties and with limited support and/or The visibility of the role to customers, external agencies or internal clients is such that and/or Information is predominantly factual but difficult to convey because of its complexity 520. 501. 500. 521. 488. 494. 502. 505. 519. 522. 535. 536. 130. 135. 502.a. 502.b. Level Description : The job holder is involved in training or demonstrating in respect of new starters or trainees who will be assigned to work with the job holder either for specific duties or the whole/part of a shift. Their progress and ability will be assessed by the job holder. 532. 533. 534. 350. 485. 351. 541. 549. 542. 508. 540. 547. 548. 503. can be made and there will be a number of options to consider. The scope of decisions made, and advice offered, will be limited to non-critical areas and the impact will be short-term. 529. 164. 531. 528.d. 528.f. 475. 41. 506. 476. 477. 479. 481. 39. 36. Level Description : The job holder will be required to stand/walk for long periods equating maintain a more or less fixed posture in order to carry out the majority of tasks associated 537. 478. Task A Task C Task J Task T Task Y 482. Task B Task D Task S Task X 538. noisy and/or busy, or which expose the job holder to unpleasant features such as spillages or 552. 560. 479. 554. 561. 553. 558. Helen Cherry 1 (Up to Dec 2019)

1	KNOWLEDGE	C=	40
2	PLANNING AND ORGANISING	D+	30
3	RESPONSIBILITY FOR ASSETS	B+	60
4	RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40
5	COMMUNICATION AND CUSTOMER SERVICE	B+	60
6	TRAINING AND MENTORING	C=	40
7	MENTAL DEMANDS	C=	40
8	PROBLEM SOLVING AND DECISION MAKING	C=	40
9	PHYSICAL SKILLS	C=	40
10	PHYSICAL DEMANDS	B=	55
11	WORKING CONDITIONS	D+	30
		TOTAL SCORE	475

[4]2 Helen Cherry 2 (After Dec 2019) exhaustive lists. First, second and third tier paragraph numbers (eg “2”, “2.3”, “2.3.7”) may necessary to fulfil the duties of the role. Job holders will also have a good understanding of house training, which will include regular updates. 486.492.

493. 488. 490. 487. 489. 491. 469. 498. 241. 250. work on a daily basis within the framework of set routines. The job holder will work to set 530. 529. 326. 528.a.  Considers the responsibility for the job holder to order, use and maintain physical assets budget. Alternatively, the job holder is involved in cash or confidential data handling which accountable. Modified to "+" for the job holder's responsibility for significant volumes of 507. 515. 517. 514. 516. 508.  Takes account of the job holder’s responsibility for ensuring their own health and safety public. They are responsible for knowing and observing regulations and procedures relevant 524. 525. emotionally demanding but will be limited to specific tasks or duties and with limited support and/or The visibility of the role to customers, external agencies or internal clients is such that and/or Information is predominantly factual but difficult to convey because of its complexity 520. 501. 488. 500. 494. 521. 130. 135. 502.a. 502.b. 502.c. 502.d. 541. 508. 549. 503. 542. can be made and there will be a number of options to consider. The scope of decisions made, and advice offered, will be limited to non-critical areas and the impact will be short-term. 164. 529. 528.d. 528.f. 41. 506. 475. 39. 36. Level Description : The job holder will be required to stand/walk for long periods equating maintain a more or less fixed posture in order to carry out the majority of tasks associated 478. Task A Task C Task J Task T Task Y 482. Task B Task D Task S Task X 537. noisy and/or busy, or which expose the job holder to unpleasant features such as spillages or 552. 560. 479. 554. 561. Helen Cherry 2 (After Dec 2019)

1	KNOWLEDGE	C=	40
2	PLANNING AND ORGANISING	D+	30
3	RESPONSIBILITY FOR ASSETS	B+	60
4	RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40
5	COMMUNICATION AND CUSTOMER SERVICE	B+	60
6	TRAINING AND MENTORING	E=	10
7	MENTAL DEMANDS	C=	40
8	PROBLEM SOLVING AND DECISION MAKING	C=	40
9	PHYSICAL SKILLS	C=	40
10	PHYSICAL DEMANDS	B=	55
11	WORKING CONDITIONS	D+	30
		TOTAL SCORE	445

[4]CHAPTER FIVE 5.0 The Work of the Claimant Amanda Cox 5.1 Amanda Cox 1 (2012 - 2015) exhaustive lists. First, second and third tier paragraph numbers (eg “2”, “2.3”, “2.3.7”) may necessary to fulfil the duties of the role. Job holders will also have a good understanding of house training, which will include regular updates. Modified to "+" for the particularly wide 486. 489. 491. 493. 487. 490. 492. 93. 70. 71. work on a daily basis within the framework of set routines. The job holder will work to set 326. 530. 529. 92. 105.  Considers the responsibility for the job holder to order, use and maintain physical assets Assessed as level : B- budget. Alternatively, the job holder is involved in cash or confidential data handling which accountable. Modified to "+" for the job holder's responsibility for only relatively small volumes of cash and other physical assets. 94. 95.97. 96.

98.  Takes account of the job holder’s responsibility for ensuring their own health and safety public. They are responsible for knowing and observing regulations and procedures relevant

99.

100. 524. 103. emotionally demanding but will be limited to specific tasks or duties and with limited support and/or The visibility of the role to customers, external agencies or internal clients is such that and/or Information is predominantly factual but difficult to convey because of its complexity 488. 500. 520. 494. 501. 521. 113. 115. 114. 549. 541. 116. can be made and there will be a number of options to consider. The scope of decisions made, and advice offered, will be limited to non-critical areas and the impact will be short-term. 164. 529. 528. 78. 475. 81. 506. 77. 79. 80. 82. 83. 84. 87. 88. Level Description : The job holder will be required to stand/walk for long periods equating maintain a more or less fixed posture in order to carry out the majority of tasks associated 107. Task CC Task B Task D Task Y Task BB Task A Task C Task J 73. 74. 76. 81. 33. noisy and/or busy, or which expose the job holder to unpleasant features such as spillages or 479. 554. 561. 552. 560. 117. Amanda Cox 1 (2012 - 2015)

1	KNOWLEDGE	C+	45
2	PLANNING AND ORGANISING	D+	30
3	RESPONSIBILITY FOR ASSETS	B-	50
4	RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40
5	COMMUNICATION AND CUSTOMER SERVICE	B+	60
6	TRAINING AND MENTORING	E=	10
7	MENTAL DEMANDS	C=	40
8	PROBLEM SOLVING AND DECISION MAKING	C=	40
9	PHYSICAL SKILLS	C=	40
10	PHYSICAL DEMANDS	B=	55
11	WORKING CONDITIONS	D+	30
		TOTAL SCORE	440

[4]5.2 Amanda Cox 2 (2015 - 2021) exhaustive lists. First, second and third tier paragraph numbers (eg “2”, “2.3”, “2.3.7”) may necessary to fulfil the duties of the role. Job holders will also have a good understanding of house training, which will include regular updates. Modified to "+" for the particularly wide 93. 486. 489. 491. 493. 487. 490. 492. work on a daily basis within the framework of set routines. The job holder will work to set 530. 529.  Considers the responsibility for the job holder to order, use and maintain physical assets Assessed as level : B- budget. Alternatively, the job holder is involved in cash or confidential data handling which accountable. Modified to "+" for the job holder's responsibility for only relatively small volumes of cash and other physical assets. 94. 96.98. 95. 97.  Takes account of the job holder’s responsibility for ensuring their own health and safety public. They are responsible for knowing and observing regulations and procedures relevant

99. 524. 100. emotionally demanding but will be limited to specific tasks or duties and with limited support and/or The visibility of the role to customers, external agencies or internal clients is such that and/or Information is predominantly factual but difficult to convey because of its complexity 488. 500. 520. 494. 501. 521. 113. 115. 549. 114. 541. can be made and there will be a number of options to consider. The scope of decisions made, and advice offered, will be limited to non-critical areas and the impact will be short-term. 164. 529. 528. Level Description : The work requires specific, trained skills requiring a high degree of dexterity, eye-hand coordination AND/OR sensory skills in order to manipulate machinery, tools and/or electrical equipment. Such skills are learnt by formal training with certification required before employees can commence tasks. Precision and speed in execution are always required. 78. 475. 47. 81. 506. Level Description : The job holder will be required to stand/walk for long periods equating maintain a more or less fixed posture in order to carry out the majority of tasks associated with the job. Modified to "+" for the additional physical demands of deliveries/despatch duties. 107. Task CC Task B Task D Task Y 39. 46. Task BB Task A Task C Task J 38. 40. 33. Assessed as level : C- Level Description : Work is carried out in environments which are noisy and/or busy, or which expose the job holder to unpleasant features such as spillages or hazardous materials. For shorter periods, jobholders may be exposed to more undesirable elements such as inclement weather, extremes of temperature, very high noise levels and/or proximity of machinery or equipment. During these periods, there may be a recognised risk of injury or to health and there are set procedures in place to protect the job holder which must be observed. PPE will be provided but the wearing of it may be optional. Modified to "-" for the short time spent exposed to risk/weather related to delivery/despatch duties. 479. 554. 561. 552. 560. 18. 59. 46. 63. Amanda Cox 2 (2015 - 2021)

1	KNOWLEDGE	C+	45
2	PLANNING AND ORGANISING	D+	30
3	RESPONSIBILITY FOR ASSETS	B-	50
4	RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40
5	COMMUNICATION AND CUSTOMER SERVICE	B+	60
6	TRAINING AND MENTORING	E=	10
7	MENTAL DEMANDS	C=	40
8	PROBLEM SOLVING AND DECISION MAKING	C=	40
9	PHYSICAL SKILLS	B=	55
10	PHYSICAL DEMANDS	B+	60
11	WORKING CONDITIONS	C-	35
		TOTAL SCORE	465

[4]CHAPTER SIX 6.0 The Work of the Claimant Alison Milton 6.1 Alison Milton 1 (2012 - 2015) exhaustive lists. First, second and third tier paragraph numbers (eg “2”, “2.3”, “2.3.7”) may necessary to fulfil the duties of the role. Job holders will also have a good understanding of house training, which will include regular updates. Modified to "+" for the particularly wide 160. 161. 73. 146. work on a daily basis within the framework of set routines. The job holder will work to set 156. 157. 158. 159.  Considers the responsibility for the job holder to order, use and maintain physical assets budget. Alternatively, the job holder is involved in cash or confidential data handling which accountable. Modified to "+" for the job holder's responsibility for significant volumes of 167. 176. 174. 15. 16. 17. 18. 21. 27. 28. 29. 32. 35. 36. 38. 39.  Takes account of the job holder’s responsibility for ensuring their own health and safety public. They are responsible for knowing and observing regulations and procedures relevant 178. 180. 179. emotionally demanding but will be limited to specific tasks or duties and with limited support and/or The visibility of the role to customers, external agencies or internal clients is such that and/or Information is predominantly factual but difficult to convey because of its complexity 132. 184. 186. 188. 162. 185. 187. 130. 15. 38. 53. 28. 39. 56.205.

206.

207.

208. can be made and there will be a number of options to consider. The scope of decisions made, and advice offered, will be limited to non-critical areas and the impact will be short-term. Modified to "+" for the frequency of technical troubleshooting (tills etc) and problem solving (cash discrepancies etc). 63. 32. 131. 133. 130. 132. 134. 50. 170. 183. 161. 160. 151. 152. 155. Level Description : The job holder will be required to stand/walk for long periods equating maintain a more or less fixed posture in order to carry out the majority of tasks associated 190. 189. 25. 196. 200. 202. 194. 197. 201. 204. 135. 137. 139. 140. 142. 143. noisy and/or busy, or which expose the job holder to unpleasant features such as spillages or

209. 211. 213. 215. 210. 212. 214. 216. Alison Milton 1 (2012 - 2015)

1	KNOWLEDGE	C+	45
2	PLANNING AND ORGANISING	D+	30
3	RESPONSIBILITY FOR ASSETS	B+	60
4	RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40
5	COMMUNICATION AND CUSTOMER SERVICE	B+	60
6	TRAINING AND MENTORING	E=	10
7	MENTAL DEMANDS	C=	40
8	PROBLEM SOLVING AND DECISION MAKING	C+	45
9	PHYSICAL SKILLS	C=	40
10	PHYSICAL DEMANDS	B=	55
11	WORKING CONDITIONS	D+	30
		TOTAL SCORE	455

[4]6.2 Alison Milton 2 (2015 - 2021) exhaustive lists. First, second and third tier paragraph numbers (eg “2”, “2.3”, “2.3.7”) may necessary to fulfil the duties of the role. Job holders will also have a good understanding of house training, which will include regular updates. Modified to "+" for the particularly wide 161. 159. work on a daily basis within the framework of set routines. The job holder will work to set  Considers the responsibility for the job holder to order, use and maintain physical assets budget. Alternatively, the job holder is involved in cash or confidential data handling which accountable. Modified to "+" for the job holder's responsibility for significant volumes of 167.171.

172.  Takes account of the job holder’s responsibility for ensuring their own health and safety public. They are responsible for knowing and observing regulations and procedures relevant 178. 180. 179. emotionally demanding but will be limited to specific tasks or duties and with limited support and/or The visibility of the role to customers, external agencies or internal clients is such that and/or Information is predominantly factual but difficult to convey because of its complexity 132. 184. 186. 188. 162. 185. 187. Level Description : The job holder's role is limited to the demonstration of simple work routines on a one to one basis with no requirement for formal training, teaching or mentoring. 38. 53. 39. 56. 15. can be made and there will be a number of options to consider. The scope of decisions made, and advice offered, will be limited to non-critical areas and the impact will be short-term. Modified to "+" for the frequency of technical troubleshooting (tills etc) and problem solving (cash discrepancies etc). 32. 132. 134. 130. 133. 160. 161. Level Description : The job holder will be required to stand/walk for long periods equating maintain a more or less fixed posture in order to carry out the majority of tasks associated 25. 190. 196. 200. 202. 189. 194. 197. 201. 204. noisy and/or busy, or which expose the job holder to unpleasant features such as spillages or 209. 211. 213. 215. 210. 212. 214. 216. Alison Milton 2 (2015 - 2021)

1	KNOWLEDGE	C+	45
2	PLANNING AND ORGANISING	D+	30
3	RESPONSIBILITY FOR ASSETS	B+	60
4	RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40
5	COMMUNICATION AND CUSTOMER SERVICE	B+	60
6	TRAINING AND MENTORING	D=	25
7	MENTAL DEMANDS	C=	40
8	PROBLEM SOLVING AND DECISION MAKING	C+	45
9	PHYSICAL SKILLS	C=	40
10	PHYSICAL DEMANDS	B=	55
11	WORKING CONDITIONS	D+	30
		TOTAL SCORE	470

[4]CHAPTER SEVEN 7.0 The Work of the Comparator Calvin Hazelhurst 7.1 Calvin Hazelhurst exhaustive lists. First, second and third tier paragraph numbers (eg “2”, “2.3”, “2.3.7”) may related documentation such as operating instructions or H&S advisory materials is required. Essential knowledge of NEXT specific procedures, rules, standards, equipment and IT systems will be learned through in-house training and/or on the job over a few weeks.8.1.1

8.5.1 8.4.1 8.14.3.5

8.1.2 8.2.1 8.2.2.4 8.2.2.1 8.14.2.2 8.5.1

8.5.2

8.5.3

8.13.2.1  Considers the responsibility for the job holder to order, use and maintain physical assets will usually be concerned with a limited range of items allocated to them and used at their place of work. They may occasionally handle cash, electronic payments, process deliveries or 8.7.2 8.7.1  Takes account of the job holder’s responsibility for ensuring their own health and safety public. They are responsible for knowing and observing regulations and procedures relevant 8.8.3 8.9.3.1

(a) 8.9.1 8.9.4.1 (a) 8.9.4.1

(b) 8.9.4.1

(d) 8.9.4.1

(e) 8.9.4.1

(f) 8.9.4.1

(g) 8.12.1 context of a singular aspect of a short term physical or mechanical activity. Modified to "+" 8.6.1 8.14.1.7 8.12.1 8.14.2.5 8.13.1 8.13.3.11 8.13.4.8 8.3.2 8.13.3.12

8.13.5.1 (d) 8.9.3.1 (b) 8.13.2.9 7.1.44

8.13.2.2 8.13.3.5 8.13.3.15 7.2.31 8.9.4.1 (b) 8.13.3.9

8.13.5.2 8.9.5.1 (c) 8.9.5.1 (d)

8.13.2.3 8.13.2.6 8.13.2.7 8.13.2.8 smells/fumes, other hazardous materials. There is a recognised risk of injury or to health and there are set procedures in place to protect the job holder which must be observed. PPE 8.9.4.1 (e) 8.9.4.1

(h) 8.9.1.3 8.13.2.15 8.13.3.27 8.14.2.12 8.16.1.6 8.9.4.1 (c) 8.9.4.1

(i) 8.13.3.6 8.13.3.29 8.16.1.2 8.16.1.11 8.9.5.1 (g) Calvin Hazelhurst

1	KNOWLEDGE	D=	25
2	PLANNING AND ORGANISING	E=	10
3	RESPONSIBILITY FOR ASSETS	D=	25
4	RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40
5	COMMUNICATION AND CUSTOMER SERVICE	E=	10
6	TRAINING AND MENTORING	E=	10
7	MENTAL DEMANDS	D+	30
8	PROBLEM SOLVING AND DECISION MAKING	E+	15
9	PHYSICAL SKILLS	C+	45
10	PHYSICAL DEMANDS	A=	70
11	WORKING CONDITIONS	B+	60
		TOTAL SCORE	340

[4]CHAPTER EIGHT 8.0 The Work of the Comparator Steven Oliver Name: Steven Oliver exhaustive lists. First, second and third tier paragraph numbers (eg “2”, “2.3”, “2.3.7”) may related documentation such as operating instructions or H&S advisory materials is required. Essential knowledge of NEXT specific procedures, rules, standards, equipment and IT systems will be learned through in-house training and/or on the job over a few weeks. Modified to "+" for the wider range of equipment and processes than the other Comparators. 9.2.3 9.1 9.5 9.2.1.2 9.2.1.3 9.2.1.4 9.2.1.7 9.2.2.59.5.1 9.2.1.1 9.2.1.5

9.5.2 4.2 4.3 4.5 4.6 7.1.1.32  Considers the responsibility for the job holder to order, use and maintain physical assets will usually be concerned with a limited range of items allocated to them and used at their place of work. They may occasionally handle cash, electronic payments, process deliveries or 7.1.1.6 7.2.1.4 9.13.3.5 7.3.1.35 7.1.1.3  Takes account of the job holder’s responsibility for ensuring their own health and safety public. They are responsible for knowing and observing regulations and procedures relevant 9.8.3 9.8.5 9.8.4 9.7.1

9.8.1

9.8.2

9.8.4.1

9.8.4.2 7.2.1.29 4.6.4 7.1.1.34 7.1.1.35 9.11.1 9.11 context of a singular aspect of a short term physical or mechanical activity. Modified to "+" 9.6.1

9.12.1 4.5 9.13 9.5.2 9.13.2.4 9.13.2.5 9.13.2.6 9.13.2.7 9.14.1 9.9 7.1.1.33 7.2.1.35

9.13.1

9.13.2 9.13.1.5 9.13.2.3 9.3.2 7.2.1.25 7.3.1.40 9.13.1.2 9.13.2.3 9.3.1

9.12.2

9.12.3

9.12.4 9.3.1 9.8.5.1 9.12.4.1 9.12.1 9.12.3.1 smells/fumes, other hazardous materials. There is a recognised risk of injury or to health and there are set procedures in place to protect the job holder which must be observed. PPE 9.15.1.3 9.15 9.8

9.15.1.1

9.15.1.2 9.15.1.7 9.15.1.9 9.15.1.11 9.15.1.21 9.15.1.24 Steven Oliver

1	KNOWLEDGE	D+	30
2	PLANNING AND ORGANISING	E=	10
3	RESPONSIBILITY FOR ASSETS	D=	25
4	RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40
5	COMMUNICATION AND CUSTOMER SERVICE	E=	10
6	TRAINING AND MENTORING	E=	10
7	MENTAL DEMANDS	D+	30
8	PROBLEM SOLVING AND DECISION MAKING	E+	15
9	PHYSICAL SKILLS	C+	45
10	PHYSICAL DEMANDS	A=	70
11	WORKING CONDITIONS	B+	60
		TOTAL SCORE	345

[4]CHAPTER NINE 9.0 The Work of the Comparator Richard Parker Name: Richard Parker exhaustive lists. First, second and third tier paragraph numbers (eg “2”, “2.3”, “2.3.7”) may related documentation such as operating instructions or H&S advisory materials is required. Essential knowledge of NEXT specific procedures, rules, standards, equipment and IT systems will be learned through in-house training and/or on the job over a few weeks. Modified to "+" for the wider range of equipment and processes than the other Comparators.8.1.1 8.4.1

8.1.2 8.2.1 8.2.2.4 8.4.3

8.14.1

8.5.1

8.5.2

8.5.3 8.12.2.1  Considers the responsibility for the job holder to order, use and maintain physical assets will usually be concerned with a limited range of items allocated to them and used at their place of work. They may occasionally handle cash, electronic payments, process deliveries or 8.12.2.1  Takes account of the job holder’s responsibility for ensuring their own health and safety public. They are responsible for knowing and observing regulations and procedures relevant 8.7.1 8.8.3.1

(a) 8.7.3 7.2.13 8.11.1 context of a singular aspect of a short term physical or mechanical activity. Modified to "+" 8.13.1.12 8.6.1

8.14.2 8.13.1.2 8.13.1.14 8.12.1

8.13.1.1 8.13.1.3 8.13.1.4 8.13.1.8 8.13.1.9 8.13.1.11 7.1.27

8.13.1.2 7.1.9 8.13.1.10 8.13.2.3 8.8.3.1 (d) 8.13.1.8 8.13.1.12 7.1.9 7.1.10 8.3.2 8.12.2.6 8.8.3.1 (e) 8.12.3.2 8.12.3.8 8.8.3.1 (f) 8.12.2.7 8.12.3.7 8.8.4.1

(b) 8.12.2.3 8.12.2.4 8.12.2.5 8.12.2.8 smells/fumes, other hazardous materials. There is a recognised risk of injury or to health and there are set procedures in place to protect the job holder which must be observed. PPE 8.8.1 8.12.2.15 8.12.3.12 8.14.6.2 8.15.1.11 8.8.3.1 (d) 8.12.2.16 8.13.2.12 8.15.1.3 8.15.1.19 8.8.3.1 (e) 8.8.3.1 (f) 8.8.4.1 (b) Richard Parker

1	KNOWLEDGE	D=	25
2	PLANNING AND ORGANISING	E=	10
3	RESPONSIBILITY FOR ASSETS	D=	25
4	RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40
5	COMMUNICATION AND CUSTOMER SERVICE	E=	10
6	TRAINING AND MENTORING	E=	10
7	MENTAL DEMANDS	D+	30
8	PROBLEM SOLVING AND DECISION MAKING	E+	15
9	PHYSICAL SKILLS	C+	45
10	PHYSICAL DEMANDS	A=	70
11	WORKING CONDITIONS	B+	60
		TOTAL SCORE	340

[4]CHAPTER TEN 10.0 The Work of the Comparator Andrejs Zale Name: Andrejs Zale exhaustive lists. First, second and third tier paragraph numbers (eg “2”, “2.3”, “2.3.7”) may related documentation such as operating instructions or H&S advisory materials is required. Essential knowledge of NEXT specific procedures, rules, standards, equipment and IT systems will be learned through in-house training and/or on the job over a few weeks. 9.2.3 9.4.2 9.1.2 9.4.1 9.5.2 9.1 9.2.1.2 9.2.1.3 9.2.1.4 9.2.1.7 9.2.2.59.5.1

9.2.1

9.2.2 4.2 4.3 4.5 4.6 4.7 7.1.1.40 7.1.1.49  Considers the responsibility for the job holder to order, use and maintain physical assets will usually be concerned with a limited range of items allocated to them and used at their place of work. They may occasionally handle cash, electronic payments, process deliveries or 9.7.5.3

9.7.5.1 9.7.5.4

9.12.1.1 7.3.1.5 7.3.1.8 7.4.1.37 7.2.1.6  Takes account of the job holder’s responsibility for ensuring their own health and safety public. They are responsible for knowing and observing regulations and procedures relevant 9.7.5.3 9.7.5.1 9.7.6.3 9.7.7.1 9.7.1

9.7.5.2 9.4.1 9.7.5 9.7.6 9.7.7 9.7.8 7.1.1.44 4.7.4 7.1.1.42 7.4.1.34 9.7.6.1 9.10 9.10.1 context of a singular aspect of a short term physical or mechanical activity. Modified to "+" 7.1.1.40 9.13 7.1.1.44

9.5.2 9.6.1

9.11.1 9.12.3.6 9.12.4.1 9.13.3.1 9.13.1 9.13.2.2 9.12.2.3 7.2.1.20 9.13

9.12.1.2 9.12.1.4 9.12.1.5 9.12.2.2 9.12.2.4 9.12.3.1 9.12.3.3 9.12.4.5 9.8.2

9.3.1

9.3.2 7.1.1

9.2.3 9.3.1 9.11 7.1.1.46 7.1.1.48 7.2.1.3 9.7.8.1

9.11.2

9.11.3

9.11.4 9.11.2.1 smells/fumes, other hazardous materials. There is a recognised risk of injury or to health and there are set procedures in place to protect the job holder which must be observed. PPE 9.14.1.3 9.14.1

9.14.1.1

9.14.1.2 9.14.1.7 9.14.1.9 9.14.1.11 9.14.1.21 9.14.1.24 9.7.3 Andrejs Zale

1	KNOWLEDGE	D+	30
2	PLANNING AND ORGANISING	E=	10
3	RESPONSIBILITY FOR ASSETS	D=	25
4	RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40
5	COMMUNICATION AND CUSTOMER SERVICE	E=	10
6	TRAINING AND MENTORING	E=	10
7	MENTAL DEMANDS	D+	30
8	PROBLEM SOLVING AND DECISION MAKING	E+	15
9	PHYSICAL SKILLS	C+	45
10	PHYSICAL DEMANDS	A=	70
11	WORKING CONDITIONS	B+	60
		TOTAL SCORE	345

[4]CHAPTER ELEVEN 11.0 Comparisons between the Work of the Claimants and the Comparators 11.1 Comparison of the work of; Claimant: Helen Cherry 1 (Up to Dec 2019) and Comparator: Calvin Hazelhurst

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C=	40	D=	25	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	C=	40	E=	10	Equal or higher	2
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	475 57.6%		340 41.2%	9	9

[4]The difference of 16.4% exceeds the -3.0 % lower threshold held to indicate the In relation to the Comparator, Calvin Hazelhurst, the Claimant, Helen Cherry 1 (Up to Dec 2019) has met or exceeded the threshold in all three tests and it is concluded 11.2 Comparison of the work of; Claimant: Helen Cherry 1 (Up to Dec 2019) and Comparator: Steven Oliver

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C=	40	D+	30	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	C=	40	E=	10	Equal or higher	2
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	475 57.6%		345 41.8%	9	9

[4]In relation to the Comparator, Steven Oliver, the Claimant, Helen Cherry 1 (Up to 11.3 Comparison of the work of; Claimant: Helen Cherry 1 (Up to Dec 2019) and Comparator: Richard Parker

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C=	40	D=	25	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	C=	40	E=	10	Equal or higher	2
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	475 57.6%		340 41.2%	9	9

[4]The difference of 16.4% exceeds the -3.0 % lower threshold held to indicate the In relation to the Comparator, Richard Parker, the Claimant, Helen Cherry 1 (Up to 11.4 Comparison of the work of; Claimant: Helen Cherry 1 (Up to Dec 2019) and Comparator: Andrejs Zale

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C=	40	D+	30	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	C=	40	E=	10	Equal or higher	2
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	475 57.6%		345 41.8%	9	9

[4]In relation to the Comparator, Andrejs Zale, the Claimant, Helen Cherry 1 (Up to 11.5 Comparison of the work of; Claimant: Helen Cherry 2 (After Dec 2019) and Comparator: Calvin Hazelhurst

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C=	40	D=	25	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	445 53.9%		340 41.2%	9	7

[4]The difference of 12.7% exceeds the -3.0 % lower threshold held to indicate the In relation to the Comparator, Calvin Hazelhurst, the Claimant, Helen Cherry 2 (After Dec 2019) has met or exceeded the threshold in all three tests and it is concluded that they therefore DO WORK OF EQUAL VALUE. 11.6 Comparison of the work of; Claimant: Helen Cherry 2 (After Dec 2019) and Comparator: Steven Oliver

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C=	40	D+	30	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	445 53.9%		345 41.8%	9	7

[4]In relation to the Comparator, Steven Oliver, the Claimant, Helen Cherry 2 (After 11.7 Comparison of the work of; Claimant: Helen Cherry 2 (After Dec 2019) and Comparator: Richard Parker

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C=	40	D=	25	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	445 53.9%		340 41.2%	9	7

[4]The difference of 12.7% exceeds the -3.0 % lower threshold held to indicate the In relation to the Comparator, Richard Parker, the Claimant, Helen Cherry 2 (After 11.8 Comparison of the work of; Claimant: Helen Cherry 2 (After Dec 2019) and Comparator: Andrejs Zale

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C=	40	D+	30	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	445 53.9%		345 41.8%	9	7

[4]In relation to the Comparator, Andrejs Zale, the Claimant, Helen Cherry 2 (After 11.9 Comparison of the work of; Claimant: Amanda Cox 1 (2012 - 2015) and Comparator: Calvin Hazelhurst

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D=	25	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B-	50	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	440 53.3%		340 41.2%	9	7

[4]In relation to the Comparator, Calvin Hazelhurst, the Claimant, Amanda Cox 1 (2012 - 2015) has met or exceeded the threshold in all three tests and it is concluded 11.10 Comparison of the work of; Claimant: Amanda Cox 1 (2012 - 2015) and Comparator: Steven Oliver

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D+	30	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B-	50	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	440 53.3%		345 41.8%	9	7

[4]The difference of 11.5% exceeds the -3.0 % lower threshold held to indicate the In relation to the Comparator, Steven Oliver, the Claimant, Amanda Cox 1 (2012 - 11.11 Comparison of the work of; Claimant: Amanda Cox 1 (2012 - 2015) and Comparator: Richard Parker

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D=	25	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B-	50	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	440 53.3%		340 41.2%	9	7

[4]In relation to the Comparator, Richard Parker, the Claimant, Amanda Cox 1 (2012 - 11.12 Comparison of the work of; Claimant: Amanda Cox 1 (2012 - 2015) and Comparator: Andrejs Zale

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D+	30	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B-	50	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	440 53.3%		345 41.8%	9	7

[4]The difference of 11.5% exceeds the -3.0 % lower threshold held to indicate the In relation to the Comparator, Andrejs Zale, the Claimant, Amanda Cox 1 (2012 - 11.13 Comparison of the work of; Claimant: Amanda Cox 2 (2015 - 2021) and Comparator: Calvin Hazelhurst

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D=	25	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B-	50	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	B=	55	C+	45	Equal or higher	1
PHYSICAL DEMANDS	B+	60	A=	70	Lower	-1
WORKING CONDITIONS	C-	35	B+	60	Lower	-1
TOTAL % AGAINST	SCORE MAX	465 56.4%		340 41.2%	9	9

[4]In relation to the Comparator, Calvin Hazelhurst, the Claimant, Amanda Cox 2 (2015 - 2021) has met or exceeded the threshold in all three tests and it is concluded 11.14 Comparison of the work of; Claimant: Amanda Cox 2 (2015 - 2021) and Comparator: Steven Oliver

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D+	30	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B-	50	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	B=	55	C+	45	Equal or higher	1
PHYSICAL DEMANDS	B+	60	A=	70	Lower	-1
WORKING CONDITIONS	C-	35	B+	60	Lower	-1
TOTAL % AGAINST	SCORE MAX	465 56.4%		345 41.8%	9	9

[4]The difference of 14.6% exceeds the -3.0 % lower threshold held to indicate the In relation to the Comparator, Steven Oliver, the Claimant, Amanda Cox 2 (2015 - 11.15 Comparison of the work of; Claimant: Amanda Cox 2 (2015 - 2021) and Comparator: Richard Parker

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D=	25	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B-	50	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	B=	55	C+	45	Equal or higher	1
PHYSICAL DEMANDS	B+	60	A=	70	Lower	-1
WORKING CONDITIONS	C-	35	B+	60	Lower	-1
TOTAL % AGAINST	SCORE MAX	465 56.4%		340 41.2%	9	9

[4]In relation to the Comparator, Richard Parker, the Claimant, Amanda Cox 2 (2015 - 11.16 Comparison of the work of; Claimant: Amanda Cox 2 (2015 - 2021) and Comparator: Andrejs Zale

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D+	30	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B-	50	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C=	40	E+	15	Equal or higher	2
PHYSICAL SKILLS	B=	55	C+	45	Equal or higher	1
PHYSICAL DEMANDS	B+	60	A=	70	Lower	-1
WORKING CONDITIONS	C-	35	B+	60	Lower	-1
TOTAL % AGAINST	SCORE MAX	465 56.4%		345 41.8%	9	9

[4]The difference of 14.6% exceeds the -3.0 % lower threshold held to indicate the In relation to the Comparator, Andrejs Zale, the Claimant, Amanda Cox 2 (2015 - 11.17 Comparison of the work of; Claimant: Alison Milton 1 (2012 - 2015) and Comparator: Calvin Hazelhurst

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D=	25	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C+	45	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	455 55.2%		340 41.2%	9	7

[4]The difference of 14.0% exceeds the -3.0 % lower threshold held to indicate the In relation to the Comparator, Calvin Hazelhurst, the Claimant, Alison Milton 1 (2012 - 2015) has met or exceeded the threshold in all three tests and it is concluded 11.18 Comparison of the work of; Claimant: Alison Milton 1 (2012 - 2015) and Comparator: Steven Oliver

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D+	30	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C+	45	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	455 55.2%		345 41.8%	9	7

[4]The difference of 13.4% exceeds the -3.0 % lower threshold held to indicate the In relation to the Comparator, Steven Oliver, the Claimant, Alison Milton 1 (2012 - 11.19 Comparison of the work of; Claimant: Alison Milton 1 (2012 - 2015) and Comparator: Richard Parker

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D=	25	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C+	45	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	455 55.2%		340 41.2%	9	7

[4]The difference of 14.0% exceeds the -3.0 % lower threshold held to indicate the In relation to the Comparator, Richard Parker, the Claimant, Alison Milton 1 (2012 - 2015) has met or exceeded the threshold in all three tests and it is concluded that 11.20 Comparison of the work of; Claimant: Alison Milton 1 (2012 - 2015) and Comparator: Andrejs Zale

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D+	30	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	E=	10	E=	10	Equal or higher	0
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C+	45	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	455 55.2%		345 41.8%	9	7

[4]The difference of 13.4% exceeds the -3.0 % lower threshold held to indicate the In relation to the Comparator, Andrejs Zale, the Claimant, Alison Milton 1 (2012 - 11.21 Comparison of the work of; Claimant: Alison Milton 2 (2015 - 2021) and Comparator: Calvin Hazelhurst

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D=	25	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	D=	25	E=	10	Equal or higher	1
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C+	45	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	470 57.0%		340 41.2%	9	8

[4]In relation to the Comparator, Calvin Hazelhurst, the Claimant, Alison Milton 2 (2015 - 2021) has met or exceeded the threshold in all three tests and it is concluded 11.22 Comparison of the work of; Claimant: Alison Milton 2 (2015 - 2021) and Comparator: Steven Oliver

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D+	30	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	D=	25	E=	10	Equal or higher	1
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C+	45	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	470 57.0%		345 41.8%	9	8

[4]In relation to the Comparator, Steven Oliver, the Claimant, Alison Milton 2 (2015 - 11.23 Comparison of the work of; Claimant: Alison Milton 2 (2015 - 2021) and Comparator: Richard Parker

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D=	25	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	D=	25	E=	10	Equal or higher	1
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C+	45	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	470 57.0%		340 41.2%	9	8

[4]In relation to the Comparator, Richard Parker, the Claimant, Alison Milton 2 (2015 - 2021) has met or exceeded the threshold in all three tests and it is concluded that 11.24 Comparison of the work of; Claimant: Alison Milton 2 (2015 - 2021) and Comparator: Andrejs Zale

FACTOR	CLAIMANT LEVEL	CLAIMANT SCORE	COMPARATOR LEVEL	COMPARATOR SCORE	TO COMPARATOR COMPARED CLAIMANT LEVEL	ABOVE/BELO O *CLAIMANT LEVEL CO W
KNOWLEDGE	C+	45	D+	30	Equal or higher	1
PLANNING AND ORGANISING	D+	30	E=	10	Equal or higher	1
RESPONSIBILITY FOR ASSETS	B+	60	D=	25	Equal or higher	2
RESPONSIBILITY FOR HEALTH AND SAFETY	C=	40	C=	40	Equal or higher	0
COMMUNICATION AND CUSTOMER SERVICE	B+	60	E=	10	Equal or higher	3
TRAINING AND MENTORING	D=	25	E=	10	Equal or higher	1
MENTAL DEMANDS	C=	40	D+	30	Equal or higher	1
PROBLEM SOLVING AND DECISION MAKING	C+	45	E+	15	Equal or higher	2
PHYSICAL SKILLS	C=	40	C+	45	Equal or higher	0
PHYSICAL DEMANDS	B=	55	A=	70	Lower	-1
WORKING CONDITIONS	D+	30	B+	60	Lower	-2
TOTAL % AGAINST	SCORE MAX	470 57.0%		345 41.8%	9	8

[4]In relation to the Comparator, Andrejs Zale, the Claimant, Alison Milton 2 (2015 -

[1]There are 956 claimants in this action. Some are still employed and others have left. They have worked in retail stores of Next from all over the country. There are approximately 530 stores across the UK and Ireland. They say they have not been paid properly. Most are women and say that men are doing work of equal value but are paid more. Those are men who work in warehouses which store the goods that Next sell, either in store or on-line. If the work is of equal value that would be discriminatory on the grounds of sex.

[2]There are a number of claimants who are men who are doing the same jobs as the lower paid women. They say that they should also receive the higher rate of pay if the women claimants are correct, otherwise that would be discriminatory treatment because of sex. These are known as piggy-back claims.

[3]This type of discrimination is redressed by providing equality of terms in respect of pay. A term is implied into the contracts of employment by operation of law. It is called a sex equality clause. That term has the effect of modifying the contract terms so that they must not be less favourable than those of the comparator.

[4]Our task is therefore to decide if the work is of equal value.

[5]We shall be assisted in deciding that question by three independent experts who shall prepare a report on it. Before they do, they must know what it is they are comparing. What do the claimants do at work? What do the higher paid men do?

[6]The starting point is the Job Descriptions. Experience has shown that the written job descriptions which are provided at the start of employment can be incomplete and sometimes inaccurate. Our rules have therefore created a procedure to establish what the relevant work is. The parties each set that out in writing. In most respects what they set out is agreed. Where it is not, we must decide what the work entails. That decision is made on the evidence they present at a Stage 2 hearing. We decide it on a balance of probabilities.

[7]When there are as many claimants as there are in this case, it would be very time consuming and costly to deal with each one separately. Because most are doing the same or similar jobs, it is sensible to select a few who can explain what they do. We call them lead claimants. In this case there are three: Helen Cherry, Alison Milton and Amanda Cox.

[8]A similar approach is taken to the men’s work which is alleged to be of equal value. Four comparators have been selected: Andrejs Zale, Steven Oliver, Calvin Hazelhurst and Richard Parker.

The Evidence

[9]The three lead claimants, Helen Cherry, Alison Milton and Amanda Cox all gave evidence. The respondents called Ms Danielle Law, the Store Manager at Hedge End, Southampton from June 2020, Mr Mick Jones, the Assistant Site Manager at Dearne Valley Boxed warehouse, Rotherham, from March 2012, Ms Caroline Watts, Store Manager at the Bristol Cribbs Causeway store from December 2020 and Mr Mark Naylor, Site Operations Manager at the Elmsall complex, Pontefract.

[10]The parties produced documents to in excess of 10,000 pages. The parties refined the issues throughout the hearing, as many of the disputed items were resolved. They produced a final schedule of issues for determination with their closing submissions.

[11]The Tribunal considered whether to visit any of the sites at which the comparators or lead claimants worked. In the light of what had been agreed and remained to be adjudicated after the evidence, we were satisfied that was not necessary.

The Law

[12]Section 65(6) of the Equality Act 2010 (EqA) provides: “A’s work is of equal value to B’s work if it is –(a) neither like B’s work nor rated as equivalent to B’s work, but

(b) nevertheless, equal to B’s work in terms of the demands made on A by reference to factors such as effort, skill and decision-making”.

[13]In Beal v Avery Homes (Nelson) Ltd

[2019] EWHC 1415 (QB)

Lavender J made the following observations:(1) Where an employee is instructed by their manager to do something, then, if they do it, that is surely part of their work. Moreover, that is so, even if they might have been entitled to say, "But that is not something I am obliged to do."

(2) The same is likely to be the case where the manager does not instruct, but requests or encourages, the employee to perform the activity in question. On the other hand, in such a case, it may be relevant to note for the expert's benefit (if it is the case) that the employee could not be required to perform that activity.

(3) Where an employee does something which they have not been instructed, requested or encouraged to do, it may still constitute work if, for instance: (a) it is simply a way of doing something which forms part of their work; and/or (b) their manager knows that they are doing it, but does not object and thereby tacitly approves of their doing it.

(4) On the other hand, something may not be part of an employee's work if they have not been instructed, requested or encouraged to do it, their doing it has not been approved by their employer and it does not simply constitute a way of doing something which forms part of their work. Analysis and conclusions Common findings across the job descriptions of the lead claimants The consequence of timings, targets and deadlines

[14]It is submitted by Mr Short that the targets and deadlines which it is agreed were set, had consequential impacts upon performance management. This added to the pressure to achieve those targets and deadlines. There was no incentivisation by a regular bonus scheme, but achievement was recognised to a limited extent by reward under the Star Rating Review.

[15]The respondents submit there was no direct correlation between performance management and achieving the respective timescales which had been set for particular tasks.

[16]We find that there was a correlation, but it was not instantaneous if a target was not met. The timeframes were set with a view to achieving efficiency in what Ms Watts described as a fast-paced environment. Mr Short drew our attention to extracts from training materials, notices and the criteria applied in evaluating an employee’s annual performance by reference to a four-star grading all of which included some reference to speed and efficiency.

[17]We accept the submission of Mr Short that this requires inclusion in the respective parts of the Job Descriptions, albeit we have modified the wording proposed more suitably to address its significance: The JH is expected to work at a pace and level of efficacy to meet targets and deadlines and may be given a lower grading on the Star Rated Review if they fail to do so. Common findings in respect of parts of the Job Descriptions of the comparators Bonus/BS 85

[18]Mr Short invites us to use the BS85 standard (85%) which the respondents accept is that to which warehouse staff are required to work, but they argue for planning and bonus purposes the rate of 95% is the reflective measure. Mr Short argues that we should not recognise the bonus element not least because no bonus scheme is available to the claimants. Historically an inequality built into equal pay has arisen from bonus schemes which have been negotiated collectively by unionised workforces, which have been predominantly in occupations undertaken by men, in contrast to some non-unionised workplaces which comprise of women. It is said inclusion of the bonus element would perpetuate the very inequality which the equal pay legislation is designed to overcome.

[19]The first problem in respect of this issue is a practical one. The rate invited by the respondents of 95%, rather than 85%, has been calculated to include such factors as stoppages to the production line. There can be blockages or mechanical faults which temporarily halt production. Bonus is generated above 85%. There is no clear demarcation of the rate at which bonus is generated having discounted the allowance for planning considerations such as stoppages.

[20]The second problem with the suggestion that work attributable to the bonus should be left out of account, is that our task under the legislation is to measure the value of the work done. That is the actual work, not some notional apportionment of part of it. If what is actually done is valued equally, regardless of how the remuneration package is made up, the law will imply a contractual term that the total remuneration must be no less favourable.

[21]That does not mean that Mr Short’s submission has no force. In this case, we recognise that what the warehouse workers are required or obliged to do in respect of their rate of production is distinguishable from what they may choose to do to generate higher levels of pay. That is a factor to which we and the experts should have regard. Furthermore, because we have no means to untangle that aspect of the higher rate of production of 95% which is to cater for stoppages from that which makes up some element of bonus, the reliable approach is to recognise the obligation to meet BS85 rate, with a recognition it is the minimum rate.

[22]We have been asked to make findings about the consequence of the tasks on the jobholders, by way of physical or mental demand. That is a far more difficult task. Each job holder will have different levels of ability, capability, strength and resilience, mentally and physically. We do not have any expert evidence from an ergonomist or occupational health clinician to assist us to draw conclusions about how these tasks might impact upon the man or woman of average strength, ability and fortitude. With respect to a number of the invitations, such as loneliness, we consider such a finding is not possible or appropriate. We address this matter specifically below. In respect of others, we have had regard to the evidence of the comparators or their respective managers. They each have lengthy experience of the work. We regard the evidence of the current or most recent job holders as carrying the most significant weight, although it was not conclusive. We recognise it requires consideration with other observations and opinions, which the comparators were not directly questioned about on oath or in any great detail at interview.

[23]There was no satisfactory evidence to attribute that additional element of physical or mental demand created by work which generated the bonus and, in most instances, the job holder would have been unaware of the relative rate at which they were operating. They would only know if they asked a manager and there is no evidence that information was commonly requested. Even if we were able to discern physical or mental stresses which we could apportion working to achieve bonus, the submission of Mr Short is apposite that this was not borne of an obligation, but to a degree incentivised by the drive to earn more. We say to a degree, because there would be subliminal peer pressure as the levels of productivity were not wholly selfdetermined; they were dependent on the rate generated higher up the line as were those lower down.

[24]The BS85 publication describes that standard as “at a comfortable speed, neither briskly nor with much effort”. Mr Short asked us to apply a narrative to all bonus or productivity issues in the schedules, which included this passage. We decline that invitation. It reflects the minimum obligation but would involve closing are mind to anything higher than that, which is inappropriate for the reasons at paragraph 20. We have made some amendments where appropriate either by acknowledgment of the minimum or to reflect the comments of the comparators in interview or their managers. The noise issue

[25]Some time was spent exploring the extent to which the job holders were or were not able to talk in the Dearne Valley Boxed warehouse because of the background noise. Whilst the evidence plainly established that there was noise of machinery, such as from large, motorised conveyer belts, it had not reached a level which necessitated measurements by the second respondent’s own safety team nor breached the levels requiring protection under the Health and Safety legislation. Ear plugs were offered to job holders, but they were not obligatory. There was piped music in the background.

[26]The emphasis on not being able to talk because of the noise level had to be considered in the context of workers who would be engaged on activities which required their attention or concentration, such that ordinary discourse would not be usual or expected. Where they worked also influenced whether and how they might pass remarks, because they were not usually sitting or standing in close proximity to one another. That was different at breaks or as workers moved about the premises and had a short verbal exchange.

[27]In their interviews, Mr Zale and Mr Oliver said they did talk to others.

[28]We agreed with the submission of Mr Short, that the aspects of the comparators’ Job Descriptions which raised this as an issue should be substituted with the following: The DVB comparators are able to chat (although not hold lengthy conversations) while carrying out their tasks. Although this is made more difficult by the background noise, particularly if there is no-one at an adjacent workstation or more recently by Covid screens, they will be able to speak to others when they come into contact with them in the course of moving around their workstations or beyond, during blockages and during breaks. The loneliness issue

[29]One aspect of the work we were asked to make a finding on was the impact it had to the job holder in respect of loneliness.

[30]These were not isolated activities, such as working for lengthy periods in a lighthouse or as a night-time security guard. There were many people in the warehouse, and they had not attended to improve their social circle. Even for the sole worker, categorising their work as lonely is highly subjective. As Mr Naylor wryly observed, it can be a lonely experience giving evidence.

[31]The evidence of the comparators did not support the suggestion that this work generated feelings of loneliness. It should be omitted from the Job descriptions. The disputed part of the Job Description of each lead claimant Helen Cherry

[32]Ms Cherry is a Sales Consultant. She works at the Hedge End store in Southampton. She has been there since July 2014. Between May 2012 and July 2012, she worked at the Home and Children Store at the West Quay Retail Park. She initially worked for 12.25 hours but this has varied, and she now works for 33.5 hours. She undertook Team Coach duties from 2012 to 2019. Flat pack deliveries 19T, 537

[33]As described in the Job Description.

[34]The claimant ceased this activity in 2018/2019. Ms Law was not at the store then. There is no evidence to contradict the claimant’s recollection. She added to this with further clarification in cross examination. We accepted that evidence. Processing Deliveries 21

[35]As described in the Job Description with the additional passage: The JH is Next Loves to Listen (NLTL) 34

[36]The Job Description should read: The Job Holder and her colleagues must are encouraged to tell as many customers as possible and encourage them to complete a survey. The JH hands out cards with details of NLTL. The JH store has a target for completed NLTLs. The JH is told occasionally by her managers to offer out the NLTL cards and QR codes “at every opportunity”, which she then does.

[37]We accept the evidence of Ms Law that the target was of the store not the individual and if that was met, each individual received 175 reward points. She agreed that every few months a manager would say ‘hand them out as much as possible’, but this was the limit of the obligation. Child foot measuring 148

[38]The JH also offers and provides a foot measurement service as part of shoe sales. The service was offered by the JH during the relevant period. Prior to the pandemic, the foot measurement tool was kept behind the tills. The JH asked customers if it was needed and If customers requested or appeared to need help the JH would fetch it and take the measurements. Since the pandemic, the measuring stool is kept on the sales floor and customers are encouraged to use it as self-service. But customers still (and frequently) ask for advice and assistance.

[39]The Job Description requires amendment to indicate the recognition of the claimant, in answer to the Tribunal’s questions, that the service was offered when requested rather than proactively offered to each customer. Ms Law accepted that if customers asked for advice and assistance in using the device it would be given, that she could not comment about before June 2020, but the same device and practice had been adopted in her previous store. We accept the evidence of the claimant that this can happen daily and is more likely immediately before return to school. Serving on the tills 168

[40]As described in the Job Description with the additional passage: The JH is

[41]The respondents accept there were timings or targets of the process. The remaining dispute is about whether the consequence of failure to comply with the target has consequences which we have addressed above. Scan pay and pack

[42]As described in the Job Description with the additional passage: The JH is

[43]The respondents accept there were timings or targets of the process. The remaining dispute is about whether the consequence of failure to comply with the target has consequences which we have addressed above. Upselling and link selling 235

[44]The JH may suggest additional items, eg shoes or jewellery to “complete a look” and explains the different qualities between the different priced products.

[45]We accept the evidence of Ms Law that it is not the company policy proactively to suggest add-on sales, but the JH may make suggestions for additional purchases. This practice is clearly initiated by management, in respect of which we accept Ms Cherry’s evidence, but this was applied with discretion in respect of the type of sale or customer. Domestic violence 237

[46]As in the Job Descriptions with the additional passage: If the JH feels uncomfortable with any of the above, she may refer the matter to a manager, if one is available.

[47]This is a new policy. It was introduced in May 2021. Ms Cherry has never had to implement it. We accept that a manager could be approached if the job holder felt uncomfortable, in need of help or third parties such as the police would be required. We accept the evidence of Ms Cherry that managers were not always, instantaneously on hand. PPU targets 277

[48]As described in the Job Description with the additional passage: The JH is

[49]The respondents accept there were timings or targets of the process. The remaining dispute is about whether the consequence of failure to comply with the target has consequences which we have addressed above. Working in pairs 425

[50]As described in the Job Description.

[51]Ms Law accepted this had been the case but believed it had stopped 3 to 4 years ago. She said they had the flexibility to allocate two to a till within the sales’ planner. The claimant described the very busy periods of the sales, particularly after Christmas, and the fact that the queue would be best reduced by one job holder doing the wrapping whilst the other worked the till. Ms Law could not speak for the period before the pandemic at this store as she was not there and we regarded the claimant, who has been working the sales recently, as likely to be accurate. PPU during sales 430

[52]The Sales start online at the same time as they start in stores. Account holder customers can order Sale goods a few days in advance to be collected from store. Parcel Pick Ups (Task J) increase during Sales. At the busiest period of the shift the JH may typically locates around 100 parcels for pick-ups during her shift at these times.

[53]The productivity target is 111 parcels per hour. Ms Law had measured this over a recent 3-week period. One sales consultant had achieved 157 over four shifts, which would be nearly 40 parcels a shift. For the same period the claimant had done 3.

[54]It is accepted that sales periods are considerably busier by up to 75%. A snapshot provided of parcel pick-ups for last Christmas and New Year was explored in re-examination of Ms Law. That would have been 33 parcel pick-ups each, when two job holders were working the shift. The busiest periods were between 11.30am and 2.30pm when 45% of parcels were processed.

[55]The claimant estimated 100 were processed by her in a shift. Assuming she worked during the busiest period we considered this was possible, but not otherwise likely. Sales 499

[56]As described in the Job Description with the additional passage: The JH is

[57]It is obvious that the job holder is required to make sales. It is a fundamental reason for her presence. Ms Law clarified that the target was not for the job holder but for the store. Best place for stock 528b

[58]The Tasks at A, H, I J, K, L, M, T, U, V, and W largely involve working from instructions in accordance with company policies and procedures. The 14 other Tasks undertaken by the JH require her to use her initiative, and judgment, adapt her responses to the individual needs and circumstances of customers and undertake independent decisions and actions: b. deciding on the best place and method to safely file stock for Task C (72, 80), on such occasions that the area is full or different stock arrives.

[59]Both Ms Cherry and Ms Law acknowledged in evidence that this might arise once per month and Ms Law explained that the decision would be made against the background of an alphabetical, numerical order. We accepted that evidence. Mental effort - 541

[60]As described in the Job Description.

[61]We accept the evidence of Ms Cherry that the task did involve periods of a repetitive work, but these were broken with processing items of different materials. This required a slightly varied manual activity which necessitated focus and attention to avoid error and potential for injury. Mental effort – accurate information 545

[62]As described in the Job Description.

[63]Whilst we recognise that a job holder could invite a customer to check their details for a home loan application, this was not obligatory and, in any event, did not detract from the need for accurate compilation in the first instance. Team coach 350 - 363

[64]As in the Job Description.

[65]The parties agreed that this was not obligatory but was derived from a business need and any job holder who volunteered would discharge those duties as part of their work. To the extent that the job holder could relinquish or refuse to offer herself for such services, that is a matter which may be taken into consideration by the independent experts, as noted by Lavender J on the observations at sub-paragraph 2, paragraph 13 above. Alison Milton

[66]Ms Milton was a Sales Consultant between 1998 and November 2021 at the Bristol Cribbs Causeway store. Her fixed hours varied from 12 per week to 9 after 2020, but in fact she typically worked 18 to 30 during sales periods. Ms Milton became a key holder for the store in 2015 and a Person in Charge (PIC) in 2018. Schematic 11 - 13

[67]As described in the Schematic and in the Job description.

[68]We found Ms Milton to be a reliable witness and regarded her recollection as likely to be accurate. This was largely at a time when Ms Watts was not working in the store, before December 2020 and she otherwise relied heavily on discussions she had held with her predecessor and her deputy, Martin. Lost property 15m, 159h, 172

[69]As described in the Job Description.

[70]The respondents relied on three pages from a loose-leaf record sheet. A further sheet was discovered upon investigation overnight. Some of these reflected one or two items of lost property per month in, July 2018 to September 2018, five in October 2018 and seven in November 2019. The next record was a year later, for November 2018. There were significant gaps. In her evidence Ms Watts could not say whether pages had gone missing, and this was for a period when she was not at the store.

[71]We regarded the claimant’s evidence as likely to be accurate. She was able to provide some examples of why this stuck in her mind. Twice per month is consistent with the records produced. It is unlikely there would have been lengthy spells without any losses with very many at other times. Post and Opening tills 21

[72]The proposed respective qualifications to the Job Descriptions of “until 2018”, and “until about 2018” are not opposed and we approve them. Manual counts 32 50

[73]32. The JH can either manually count and key in the amount lifted or shall weigh it the amount lifted on a digital scale (which will automatically up-date the PC with the amount). If using the scales the The JH checks that the amount recorded accords with the entry. The JH manually counted and keyed in the amount lifted when the digital scale malfunctioned. Malfunctions could include the scale not weighing the particular denominations correctly or not feeding the amount lifted into the PC. Malfunctions occurred every 6 months. 74. 50. As described in the Job Description.

[75]Ms Watts said there was only a malfunction every 18 months, Ms Milton said every 6 months. As the claimant was at the store for longer and we accepted her evidence was reliable we prefer the shorter period. Although the claimant said in evidence that she always did a manual count as well as a digital count because she mistrusted the machine, that was not on instruction or required but a task taken on of her own volition. It should not be added. Till actions – top -ups 41

[76]As described in the Job Description.

[77]Ms Watts said that top-ups during the day were rare and were not more frequent during the sales period because the job holder would have accounted for that when they set the till at the beginning of the day.

[78]Ms Milton on the other hand said she topped up the till once per month in more recent years, but weekly previously.

[79]Both witnesses are relying upon their impression without the benefit of any assessment have been undertaken. Ms Watts acknowledged that she would not be informed of top-ups and she was basing her view upon what she had observed when on the shop floor. On balance we accept what Ms Milton has said as the inconvenience of moving from one part of the store to another would stick in her mind. Discount cards 97

[80]As described in the Job Description.

[81]Ms Watts said the turnover of staff was on average 5 per month. This would mean that Ms Milton’s account that this was frequent is correct. Although she had not seen Ms Milton distribute the cards, that does not detract from the evidence of Ms Milton that she undertook the task. Gift cards 100

[82]As described in the Job Description.

[83]Section 100 of the Job Description makes no reference to the periodic activity of this task. The Schematic characterises it as regularly, that is in a week or month. Ms Milford said it was usually weekly. Ms Watts deleted the last paragraph of her statement which commented upon this but did not advance any serious alternative. We agree regularly is the appropriate term. PIC – opening up -123a

[84]As described in the Job Description.

[85]There is no reference to the level of periodic activity in the Job Description. In respect of the Schematic the activity is characterised as regularly. It should be changed to read regularly until December 2020 and occasionally from January 2021.

[86]Ms Milton said she undertook the task usually weekly, sometimes more frequently but sometimes less, twice per month. Ms Watts disputed this and said Ms Milton had done this only once at her request and she said her discussion with other managers confirmed this level of frequency in the past. We prefer Ms Milton’s recollection of the history before Ms Watts arrived. Practices were likely to have developed between those responsible for this task, and we reject the implication Ms Milton must have fabricated this.

[87]The respondents rely on wage records which triggered periodic payments for PIC duties, but these were not broken down into the respective PIC activities. We did not find these to be helpful.

[88]Ms Milton was not specifically challenged about a change of practice from December 2020. We are satisfied that Ms Watts’ recollection for the 11 month period from January 2021 is preferable, because she then took over direct managerial control and this was an activity of which she would be aware. Technical know-how 123c, 130 – 134

[89]Remove from the section Task AA – Person in charge and in include under Task Z - Admin.

[90]Ms Watts agreed that the claimant had better knowledge of these tasks because of her experience in regard to administrative duties and Ms Milton said others often turned to her given her broad understanding of such matters. This should be reattributed to Admin. Bringing in deliveries 139

[91]As described in the Job Description.

[92]We accept Ms Milton’s evidence that the photographs which were taken in November 2021 reflected how she typically loaded the sack truck. This had been witnessed by a number of managers and one had commended her on the loading of the truck. We reject the hearsay evidence that the same manager, who was also a health and safety officer, had not made such a remark.

[93]We accept the comment of the respondents that the trucks are so heavily stacked as to create a hazard. Doubtless the working practices will have to change, but they do reflect the work that had been done by Ms Milton. Bringing in deliveries 143

[94]More than 200 parcels Between 700 and 1,000 parcels arrive each day week at the JH’s store and the number rises significantly in Sales periods. The JH spends typically 30 – 45 minutes each shift bringing in these deliveries depending on the delivery volume that day.

[95]Ms Milton’s evidence was an estimate. Ms Watts provided the statistics for a five-month period up to December 2021 which vary from 700 to 1,000. That is to be preferred to an estimate. Physical skills 155

[96]The loaded sack truck and rails are not light, and they are both awkward to steer. There is limited clearance in the door between the yard and lift area, in the lift, area 1 and corridor. Area 1 in particular is full of obstacles: pallets of tubs, cartons, pump trucks, P1 crates. Safely and securely transporting the delivery of the “parcel J” stock from yard to stockroom requires good manual dexterity and hand eye coordination.

[97]Ms Milton accepted in cross examination that the trucks were not hard to steer. Otherwise, we accepted her evidence, particularly bearing in mind the number of sacks which were depicted as typically loaded in appendices 8 and 9. Discharge of corporate procedures 182

[98]For Task AA, She must ensure that when she directs advises …and supports colleagues taking payment, processing refunds etc at the tills, that she is acting, at all times, in compliance with Next’s FCA credit awareness and anti-money laundering rules and principles, data protection, sale of knives, staff discounts and returns policies (details of these are at Task E of Helen Cherry’s Job Description).

[99]We accept Ms Milton’s evidence that her advice was typically sought because of her experience in administrative duties. This was not a PIC duty, so required deletion of reference to AA. Bringing in deliveries 200

[100]The JH lifts full truck sacks of stock from the ground and over the sack truck rails into the sack truck. She lifts sacks to sit on existing sacks in the truck, sometimes reaching above head height to do so.

[101]Ms Milton agreed that because there were two open sides to the truck, she did not have to lift the sacks over the rails.

[102]We reject the evidence of Ms Watts for the reasons set out above in respect of item 139 of the Job Description. The sacks were stacked as depicted in appendices 8 and 9 and this involved lifting above head height for Ms Milton, once the majority had been loaded. Store condition 210

[103]Some parts of the corridor outside the stockroom are in a poor state of repair: in area 1 the paintwork is damaged and falling away and there is pipework across it which constantly leaks in the winter. The JH puts buckets around the area on the floor to catch leaking water.

[104]Ms Milton stated this was outside, not within, the stockroom. She provided a clear description of the leaking pipes and the reason behind the failure to repair them, because of a dispute as to who was responsible between the first respondent and the landlord of the Mall in which the store is situated. We consider it improbable that this account has been fabricated or falsely recollected. It may be that it has been repaired since Ms Milton left, which would have escaped the notice of Ms Watts, who arrived in December 2020. Ms Amanda Cox

[105]Ms Cox has worked as a Sales Consultant from 18 November 2000 at Bristol Cribbs Causeway store until 20 January 2020. He contractual fixed hours were 9 to 12 per week, but her actual hours were 35 per week. 6 Layers 43 44 75 106.43. There are usually 30 tubs/cartons per pallet (6 layers of 5 containers each). The training guidelines produced by Next for this task refer to the driver removing the 6th layer of containers for the JH and her colleagues. This does not happen at the JH’s store.

44. The 6th layer of tubs/cartons are removed by the JH and her colleagues in the yard. These are put to one side and then stacked directly on to the pump truck. The loaded pump truck is sent down in the lift to be received by the JH (appendix 13). 75 Delete all of this paragraph.

[107]Ms Cox said she had never removed the sixth layer. There was a dispute as to whether it was the drivers who removed the sixth layer or one of the colleagues of Ms Cox. It is our function to decide facts in respect of the chosen lead claimants and their chosen comparators, not others who are similar or have allied duties. Ms Watts arrived 11 months later and disputed that this was a task undertaken by employees of the first respondent.

[108]We are not prepared to go beyond our function of deciding this lead claimant’s job. References to others or the practice at the store are therefore deleted. Breaking down 51 and 59

[109]51. As described in the Job Description and the Schematic.

[110]Ms Watts was not present when Ms Cox did this task. We accepted the evidence of Ms Cox about how frequently she did this task and used the pump truck. 111. 59. Typically The JH spends between 15 and 60 minutes completing Task BB, the precise duration being dependent on how many other colleagues were engaged on the task.

[112]Ms Cox said that when there was a full team assisting this could take 15 minutes, but on her own each pallet would take up to 10 minutes. We find the numbers involved would vary. Retail dispatch 66 and 68

[113]66. The pallets, cages and crates are collected from the yard by the trailer that makes the retail deliveries and by the van that delivers the Task J parcels to go back to the warehouse. The JH prepared stock, waste, graphics and fixtures and empty tubs for despatch as described every week. She used a pump truck weekly. 114. 67. Typically, the JH undertakes the Despatch task at least once per week occasionally more in the run up and after the Sales, for 30 minutes at a time.

[115]We accept the proposal for adjustment to the term ‘occasional’, given Ms Cox’s evidence that she did this task but not as often as reflected in the respective parts of the Job Description and schematic. Physical skills 81 and 108

[116]As described in the Job Description.

[117]We accepted the evidence of Ms Cox. Ms Watts conceded that the task may be more difficult for someone smaller than herself. Ms Cox was of a smaller stature. The rails are 1.8m in height and length. They were awkward for Ms Cox to retain a consistent grasp. The shorter the arm-span, the greater the challenge. Rails with clothing items such as men’s suits were heavy. Physical skills 82

[118]As described in the Job Description but with deletion of briskly, which the parties agreed.

[119]The remaining point of objection in the final schedule is not material in the light of this agreed amendment. Mental pressure 114

[120]As described in the Job Description.

[121]We accept paragraph 22 of the statement of the claimant and the knowledge that any tardiness in fulfilling this task would have a knock-on effect to the efficient processing of stock. The comparators Andrejs Zale

[122]Mr Zale is a warehouse operative at Dearne Valley Boxed (DVB). He has worked for the second respondent since 28 August 2015. His fixed contractual hours are 16 to 40 per week Bonus issue /BS 85 issue 7.1.1.34

[123]The job Holder is expected required to cut open approximately 850 620 boxes per in a 4 hour shift. This target creates mental pressure on the job Holder.

[124]Mr Jones agreed that the minimum number of boxes required to meet British Standard 85 would be 620 or 698 in a typical 4 or 4.5 hour shift respectively. Issues of the impact of the job, physically or mentally are more suitably addressed in later parts of the Job Description. We do not regard the 95% rate used for planning as helpful. This factors in stoppages. The requirement is based on an average. It does not reflect any greater productivity which might generate a bonus. The Job Description should reflect the obligation. The lonely environment/noise issue 7.1.1.47 / 7.2.1.40 / 7.1.44 / 9.13.3.1 / 9.13.3(g) / 9.13.3.3(d) / 9.14.2

[125]Delete and replace with: The DVB comparators are able to chat (although not hold lengthy conversations) while carrying out their tasks. Although this is made more difficult by the background noise, particularly if there is no-one at an adjacent work station or more recently by Covid screens, they will be able to speak to others when they come into contact with them in the course of moving around their workstations or beyond, during blockages and during breaks. Stoppages – impact on bonus – stress for JH 7.3.1.39

[126]Delete

[127]We do not find the requirement to earn a bonus was stressful. Mr Jones agreed that the ODS planning figure included a 5% stoppage allowance. That was the average. He agreed the majority on site achieved 100% bonus. There was no evidence that the production line was frequently disturbed by stoppages adversely to affect the bonus. Moreover if there were fewer than 5% stoppages it would be easier to achieve a bonus. Finally the evidence of Mr Zale was “for me it’s not hard”. Resting between stoppages 7.3.1.40

[128]Technical issues can occur, however even when there are stoppages, the JH is continually will be able to perform another task, whether it be housekeeping in the workstation, or making up additional pizza trays if the Job Holder decides they need more; the Job Holder must autonomously make this assessment based on the size of the items that the Job Holder is processing; or the Job Holder may rest if he has no work or there is a stoppage.

[129]The alterations reflect the evidence. Mr Zale said he would relax if there was a blockage, or no work and he was always on target. The word autonomously is otiose. The wording says it is the Job Holder not anyone else who makes the assessment. Bonus pressure – no work 7.3.1.45

[130]Delete

[131]Insofar as it may arise, there is no obligation to work at such a level as to generate a bonus and so it is not a requirement of the job. Any pressure to meet it would be at the election of the Job holder. In any event Mr Zale always received his bonus and it was not hard for him. The bonus/85 issue 7.3.1.46

[132]For SCS Picking, in Autumn and Winter, the Job Holder is required to work to BS85, accurately and at a reasonable speed. To achieve bonus rates the Job Holder would be expected to work quickly and accurately in order to process between 550 to 600 items per hour in Autumn and Winter, to achieve their bonus, and in Spring and Summer the Job Holder is expected to work quickly and accurately in order to process between 800 and 900 items per hour to achieve their bonus.

[133]In cross examination Mr Jones agreed that the requirement on which production was based on BS 85 and that the wording in the job specification for that and in the collective agreements refers to accuracy and reasonable speed. We recognise that a higher rate will be involved for achieving a bonus, but the differential in pace is not clear from the evidence, given the remarks we have made in our general observations about bonus. We consider this part of the job description should include reference to the requirement of the minimum as well as the expectation and the minimum should use the term referred to in the job specification. Quickly has been deleted. It is implicit that an adjusted pace would be required to meet bonus levels, but it is not necessary or even possible to quantify that. The Bonus / BS 85 Issue

[134]This creates physical demand on the Job Holder as required by the O&M department That is at a comfortable speed neither briskly nor with much effort, as defined by BS 85.

[135]Mr Jones agreed that the minimum standard was calculated in accordance with BS 85 and that this industrial standard used the above description. Given that Mr Zale did not consider meeting his bonus performance required much effort, this wording is more appropriate. Bonus pressure 9.13.2.1

[136]Delete

[137]This is not borne out on the evidence. It is contrary to what Mr Zale said. Mr Jones said that a worker would not be aware of his productivity rate unless he asked, in which he case it would not be possible to distinguish when the minimum requirement was reached or the bonus optimum level was achieved. Steven Oliver

[138]Mr Oliver has worked as a warehouse operative at DVB from 15 April 2002. He works for 20 hours per week. Lack of stimulation 7.2.1.40

[139]Delete

[140]The evidence of Mr Jones was that in a short pause on allocated tasks the job holder might find alternative work or chat to a colleague. We do not regard lack of stimulation as properly included as an accurate description of such short stoppages and it should be deleted. The SLO issue 9.2.3

[141]SO is fully trained in the following operations/duties, having received 16 hours’ training on each operation/duty: (h) Process Stock Left (SLO). The JH has not done SLO at any point of the reference period.

[142]This is part of Mr Oliver’s duties and he could be called upon to discharge them, but its infrequency is a matter to which the independent experts may have regard. Bonus pressure & the bonus issue/ BS 85 Issue 9.14.2.1

[143]Delete

[144]This is not borne out on the evidence. Mr Oliver did not agree he was always under pressure and for some tasks it was easier than others. Mr Jones said that a worker would not be aware of his productivity rate unless he asked, in which case it would not be possible to distinguish when the minimum requirement was reached or the bonus optimum level was achieved. It is difficult to see how that could be described as a pressure. Richard Parker

[145]Mr Parker is a warehouse operative who is based at the Elmsall complex in Pontefract. He has been employed by the second respondent since 31 October 2015. Place of work 2.1.

[146]The Job Holder has worked as a warehouse operative at Elmsall Drive during the period covered by the job description but may be required to work at Elmsall Way.

[147]Mr Naylor agreed in cross examination that Mr Parker had worked at the Elmsall Drive site since 2012, but under his terms of engagement it would be open to the second respondent to require him to work at Elmsall Way. Alternating tasks 4.1.3

[148]The Job Holder normally sticks to one operation / process of packing for the whole of their shift unless their Team Manager advises them otherwise to carry out inducting in addition which may take up to two hours.

[149]There is a dispute as to the precise wording to be substituted, but we are not satisfied whichever is chosen materially affects the exercise of job evaluation. Mr Naylor said that sometimes Mr Parker spent the whole day packing. At other times he might be required to do up to 2 hours of inducting. Space 7.1.4

[150]The Job Holder’s workstation is located on a raised platform, suspended approximately 1.8m above the warehouse floor. The area of the workstation the Job Holder works in is relatively small and confined, measuring approximately 1.49m by 1.14m. Photographs of the workstation are at appendix 5.

[151]Mr Naylor agreed that the space was adequate for the purpose of the required task. We did not regard it as unduly restrictive from the photograph at appendix 5. The word small lacks clarity and combined with the term confined implies it is deleterious, which is not a fair reflection of the evidence. Sifting 7.1.9

[152]The Job Holder is required to sift through take the items which arrive at the workstation, and “induct” them into the system for onward transportation in the warehouse, via a large conveyor belt system. They do this by lifting each item out of the dump chute tray, locating the item’s barcode, and scanning the barcode using one of two barcode scanners located at the inducting workstation. Occasionally the JH will need to remove a stock item from the chute to the induct station if it’s stopping the flow of stock.

[153]Mr Naylor agreed that most of the time the job holder will pick up an item, but occasionally the job holder will have to move a large item such as a shoe box to avoid it blocking the flow. The wording proposed by the claimants more accurately reflects the process. Consideration 7.1.12

[154]When inducting items, the Job Holder must give careful consideration take care in the way items are placed onto the onward conveyor belt system, once they are scanned.

[155]Mr Naylor agreed that if a job holder had to identify the next item there has to be care taken in that placement. The accuracy rate was 99.3%. We agree with the claimants’ proposed wording and that ‘careful consideration’ overstates the matter. Autonomy and white trays 7.1.18

[156]For smaller items (e.g., jewellery and rolled-up jeans), before placing the items onto the onward conveyor system, the Job Holder is required to make an autonomous assessment as to whether the items need to be placed into a white tray, so as to ensure the items do not get caught up in the conveyor belt and lead to jams. A photograph of the white tray is at appendix 9.

[157]The addition of the word autonomous over-emphasises the complexity of the decision-making process. The bonus issue/ BS 85 issue 7.1.27

[158]The Job Holder is expected to induct approximately 1,000 items per hour in order to meet their targets and achieve their bonus. This means the Job Holder is working at a near constant fast-pace in order to achieve this.

[159]The term fast is unhelpful because it is a relative concept. In his interview Mr Parker said it was difficult to compare to others, but he thought it was faster than a supermarket conveyer belt. Otherwise we approve the above as a reflection of what the Job Holder did. The actual work issue 7.1.43

[160]The Job Holder might be required to perform “inducting”, typically for not more than two hours for the entirety of a shift at busier times, or when it is quieter, as soon as the Job Holder has finished their workload, they might be required to perform another operation / process around the warehouse.

[161]This accords with what Mr Naylor said in evidence and Mr Parker in interview. The bonus/ BS 48 issue 7.1.67 4329

[162]The Job Holder must continuously multi-task between inducting, minding the dump chute, and manually sorting rejected totes. This multi-tasking ultimately slows the Job Holder down from inducting the required amount of items to meet their bonus target. , which causes additional stress and pressure when performing this task .

[163]Mr Naylor agreed that it was only on the dump chute that he would have to reject totes manually, which eliminates the suitability of the word continuously.

[164]The issue of mental pressure in respect of bonus is one that we agree should not be included. For the reasons we have set out in our general findings above, it is not identifiable from the evidence; even if it were we would comment that it would be generated by a desire to achieve an incentive rather than meet an obligation. Autonomy 7.2.8

[165]If an item which is scanned is a single item, it is immediately ready to be “packed”. The touchscreen PC will prompt the Job Holder when items are single-order items. The Job Holder then autonomously determines which size bag they need to use to pack the item in.

[166]The addition of the word autonomous overstates the complexity of the decisionmaking process. Initiative 7.2.11

[167]For even larger items, the Job Holder decides whether to uses their own initiative and packages the item using two “Home” bags to securely package it.

[168]This is a more suitable use of language which more realistically explains what is done. Consideration and analysis 7.2.35

[169]The Job Holder must give careful consideration as to look at the items they are scanning. The packing workstations work in alternative batches (“odd” and “even”). Stock will continue to arrive to the workstation via dump chutes, however the Job Holder will need to analyse check the information provided by the touchscreen PC, and the labels which are printed when processing stock, to determine when the next batch of stock has arrived.

[170]Careful consideration is an overstatement of what is done. The above wording more accurately suits the task. Garden snails 7.2.56

[171]When collecting the sacks large bags, Tthe Job Holder could on occasion encounter one of a number of hazards and / or unpleasant situations. Such situations include discovering dead animals, slugs and snails’ remnants of blood, faecal or urine matter and dead invertebrates in or on the sacks which they collect.

[172]Mr Parker once found snails. Mr Naylor said blood, faecal and urine had been found. The above more accurately states the problem. Injury to the job holder 7.2.63

[173]The Job Holder must also be alive to health and safety when performing this task. It is not uncommon for tThe Job Holder to might hit his head, or catch his hands, in the pigeonhole racking, but the use of gloves and general precautions minimise any risk.

[174]Although it was accepted Mr Parker had never sustained an injury, Mr Naylor explained that others had, on average once a year and the introduction of a gloves mandate had reduced finger injuries. The actual work issue 8.2.2.1 (There are two passages with this number. We include both below).

[175]The Job Holder can be required to undertake refresher training, if they fail to meet certain criteria based on the individual’s bonus rates. For each task that the Job Holder is transferred to, for which they are not trained, the Job Holder receives a minimum of 16 hours training which is delivered by an inperson team / training coach, via a tablet device.

[176]We do not consider these to be in dispute on the evidence. The actual work issue 8.4.3

[177]Training guidelines and / or risk assessment for each of the tasks the Job Holder typically performs or has performed within the relevant period, including those which are performed by others in their JH’s role as a “warehouse operative”, are at appendix 32.

[178]Our task concerns the work of this comparator, not others. Working knowledge of stock 8.5.3

[179]A working knowledge of stock also allows the Job Holder to autonomously assess how long certain tasks will take.

[180]As amended the above satisfactorily encompasses such matters as how much work will be left to process after the infeed is switched off. The actual work issue 8.6.1

[181]Although the Job Holder has only been required to undertake two tasks, picking and inducting, throughout the whole of the reference period For all tasks, the Job Holder is required to maintain a level of flexibility in that they may be asked to perform additional operations / processes to which they were not allocated, based on the demands of the warehouse, provided that they have been adequately trained and are not subject to restrictions

[182]The independent experts may give such as weight as is appropriate to what has happened in practice. Injury to the Job Holder 8.8.4.1.c

[183]The Job Holder must be aware of the Health and Safety implications of lifting and carrying as well as using the pigeon hole racking which can be sharp. It is not uncommon for tThe Job Holder to might hit his head, hand, and legs on the pigeon hole racking around him, which can lead to bruising, cuts and scratches but the use of gloves and general precautions minimise any risk.

[184]Mr Parker has never injured himself and so this should read as above. We accept that there are risks but reasonable care avoids them. The bonus issue 8.12.1

[185]For all tasks, the Job Holder is expected to work accurately and at a reasonable basis. This creates physical demand on the Job Holder as required by the O&M Department.

[186]Mr Parker said that more often than not he met his target for his bonus. The evidence does not support a reference to physical demand. Tiring process 8.12.2.5

[187]This is a tiring process for the Job Holder, and requires significant amounts of walking, bending, and concentration. This is particularly due to the distance the Job Holder could cover in completing this element of the task, which This task can involve the Job Holder walking several meters (typically 10 – 15 metres, though sometimes this could be as far as 40-50m depending on which workstation the Job Holder is located at and which Packing workstation they need to walk to) to and from their workstation to retrieve them.

[188]There is no evidence Mr Parker found this tiring. The bonus issue 8.12.2.9

[189]The Job Holder must ensure he inducts items at a significant speed in order to ensure he inducts 1,000 items per hour.

[190]The additional words are unnecessary and do not provide any additional useful information about the physical effort, under which topic this falls. Physical exhaustion 8.12.2.10

[191]In circumstances where the Job Holder is required to induct items, mind the dump chute, and manually sort rejected totes, the Job Holder produces a significant amount of sweat performing these duties and is physically exhausted at the end of each shift, more so where he has not been able to alleviate some of the labourintensive tasks through the use of a trolley.

[192]There was no evidence Mr Parker was physically exhausted at the end of his shift. He said he did not feel it hurt until he got home and described an ache rather than exhaustion. Weight of stock 8.12.2.10(a)

[193]The weight of the stock the Job Holder inducts includes items such as curtains and duvet sets which can be significant, and can require the Job Holder to hold items with both hands, and in many cases his forearms as well given the difficulty in manoeuvring them. This can cause friction and strain on the Job Holder’s arms and muscles.

[194]There is no evidence about the actual weights raised. The term significant is therefore not informative. We agree the wording proposed by the claimants. Physical symptoms of the JH 8.12.2.12

[195]In performing this task, the Job Holder regularly may experiences symptoms including muscle strain, headaches, severe tiredness, exhaustion, aching, in particular in his hands. (particularly in the neck, legs, back and shoulders), which last for a couple of hours following the end of each shift.

[196]The only evidence of Mr Parker is that he had aches in his hands and some general aches when he was at home. Physical symptoms and pure adrenaline 8.12.2.13

[197]By the next morning, the Job Holder is usually ready to resume the task without experiencing the after effects of the symptoms described above, though at the point of resuming the task he is driven by pure adrenaline to complete the task in a timely manner.

[198]We agree with the claimants that there is no evidence to support the words suggested. Temperature at Elmsall Drive 8.12.2.15

[199]The temperature of the area in which the task of Inducting is performed can also be particularly hot, as both the machinery and the actions performed by the Job Holder generates a significant amount of heat. This is further protracted by the fact the induct stations are suspended above the ground floor, and are therefore naturally closer to the ceiling. When the temperature rises above 27 degrees the JH is entitled to a heat allowance. It was agreed that there was an entitlement to a heat allowance over 27 degrees. No cogent argument was advanced as to why this would not be a material factor. Physical demands 8.12.3.5

[200]Whilst packing items, the Job Holder’s hands become sweaty produces a significant amount of sweat performing these duties and is physically exhausted at the end of each shift. This is even more so where the Job Holder is required to pack very large items, which might be awkward to pack and may need to be packaged using two “Home” bags to securely package it.

[201]The is consistent with the evidence of Mr Parker’s interview. There was no evidence Mr Parker was physically exhausted at the end of his shift. He said he did not feel it hurt until he got home. This is a description of an ache rather than exhaustion. Weight of sacks 8.12.3.8

[202]Once a sack of completed parcels is full, the Job Holder must lift or drag and transport very heavy sacks (up to, and occasionally in excess of, 15kg)to the hanging carousel for onward distribution. He does this approximately 4-5 times per hour

[203]We accept the submission that the subjectivity of the term ‘very heavy’ is unhelpful and the experts should focus on the weight. Mr Naylor said that some legacy packaging could be over 15kg, which we accept, but the weighing system did not record it. Mr Parker said in interview that he pulled the sacks along the floor in keeping with his manual handling training. Physical symptoms of the JH 8.12.3.10

[204]In performing this task, the Job Holder regularly experiences symptoms including muscle strain, and headaches, severe tiredness, exhaustion, aching. (particularly in the neck, legs, back and shoulders), which last for a couple of hours following the end of each shift.

[205]This more accurately reflects what Mr Parker said in interview, although that was very succinct and not explored in any detail. At paragraph 92 of his witness statement Mr Naylor said he had experienced all of the symptoms, by reference to the original proposal for the Job Description. We do not regard such general and undetailed observations of what he undertook some time ago as very helpful when reducing this to an accurate expression of the physical demands of this part of the job. Sack condition 8.13.2.11

[206]When collecting sacks for completed orders, the Job Holder could encounter unpleasant situations. This can be particularly hard-hitting and mentally challenging for the Job Holder.

[207]For the same reasons in paragraph 172 above, we do not consider the last sentence is accurate. The bonus issue/ BS 85 8.14.1

[208]For all tasks, the Job Holder is expected to work accurately and at a reasonable basis. This creates mental pressure on the Job Holder to perform their work accurately and reasonably quickly.

[209]We do not regard that the evidence, in context, supports mental pressure. When asked in interview, Mr Parker did not suggest this aspect of his work created pressure.

[210]The claimants invite us to add reference to the bonus rate, but we do not regard that as necessary. Temperature at Elmsall Drive 8.15.1.19

[211]For some tasks located on some floors of the warehouse, in the Summer, the area of the warehouse in which tasks take place becomes very hot. This is the case for both the Inducting and Packing tasks carried out by the Job Holder. When the temperature rises above 27 degrees the JH is entitled to a heat allowance.

[212]We repeat paragraph 200. Temperature at Elmsall Way 8.15.1.20

[213]A temperature log showing average temperatures in each part of the warehouse during the Summer is at appendix 36.

[214]This has no relevance to the demands of the job. Calvin Hazelhurst

[215]Mr Hazelhurst works at the Elmsall complex. He has been employed by the second respondent since 25 September 2011. The actual work issue 4.1.4

[216]For instance, if an operation / process is very busy and requires more warehouse operatives to assist with it, provided the Job Holder is trained on that operation / process, the Job Holder might be asked by their Team Manager to stop carrying out their allocated operation / process and move to the operation / process that required more warehouse operatives to assist.

[217]This does not require amendment but is understood in the context of Mr Hazelhurst only having worked in packing and inducting and so, although he theoretically could be called upon under his contractual obligations to change to other tasks, in practice that has not occurred. Packing 7.1 to 7.1.66

[218]The Job Description shall be amended or altered as that of Richard Parker above for the common tasks. The bonus / BS 85 issue 7.2.48

[219]Delete all: An individual bonus scheme is in place creating competition between warehouse operatives to complete pick lists.

[220]There is no evidence that there was any enhanced payment for the highest performer, thereby generating competition between Job Holders. The bonus / BS 85 issue 7.2.56

[221]If dealing purely with returns, the Job Holder is expected to pick approximately 90-160 items of stock per hour depending on the zone within which the Holder carries out the task, which equates to approximately 60 [30-40] totes stock being filled.

[222]No alteration is required, but this is a figure used for planning purposes. Stock knowledge 7.3.18

[223]The Job Holder performs a visual check to autonomously assess which items can fit into each of the BDCs; there is no set item of stock that the Job Holder must place into each BDC. This is decided purely by the Job Holder based on space available in each of the BDCs. The Job Holder therefore needs good knowledge of each of the stock they are dealing with in order to understand their size and whether they will fit in the relevant BDC. A photograph showing the mix of items in a BDC is at appendix 30.

[224]This task requires only knowledge about the size of the stock, not any other detailed knowledge of it. Mr Naylor agreed. Health and safety risks 7.3.32

[225]The Job Holder needs to be aware of the Health and Safety risks associated with working in a congested and of working in a narrow area with other Warehouse Operatives and trolleys in the Putaway area. Trips and slips could occur if the Job Holder fails to wait for other Warehouse Operatives to pass.

[226]We agree with the proposed, simpler wording, but consider a brief illustration of the risks does add some meaning and should be retained. Mr Naylor said that the congestion caused the safety risk, but this is self evident from the above. The actual work issue 8.2.2.1

[227]If the Job Holder is to be transferred to a task for which they are not trained, they will receive training in relation to this new task, before being deemed competent to carry out the task independently, without the need for supervision.

[228]There is nothing objectional in this paragraph and it requires no qualification. Primary tasks and frequency 8.2.3

[229]Although tThe Job Holder’s primary tasks performed are Packing, Picking, Putaway (Returns), and Bulk Picking (when this task is “active” in the warehouse), the Job Holder has historically performed the task of “Inducting” Packing for a short period in 2014 (see “Richard Parker’s” Job Description for a description of this task).

[230]When this was raised in the interview Mr Hazelhurst said he had done a couple of weeks of packing in 2014 and on one occasion during the Covid pandemic. This interviewer referred to a record held but Mr Naylor said his record showed inducting. On balance we accept what Mr Hazelhurst said. Although not invited, this necessitates a deletion of Packing as a primary task, because it was done only twice. The actual work issue 8.4.3

[231]Training guidelines and / or risk assessment for each of the tasks the Job Holder typically performs or has performed within the relevant period, including those which are performed by others in their role as a “warehouse operative”, are at appendix 34.

[232]Our task concerns the work of this comparator, not others. Working knowledge of stock 8.5.1

[233]The Job Holder must safely and appropriately process stock. He must look at the size of the stock before choosing where to put it. is required to have a working knowledge of stock. This enables them to autonomously assess how to safely and appropriately process certain items.

[234]The evidence of Mr Naylor was that the Job Holder would need to know where to place the stock on the shelves and have an understanding of how it was boxed, such as if it was padded. There was no evidence this required any more detailed knowledge of the stock to discharge picking or putaway duties. The actual work issue 8.6

[235]Although the Job Holder has only been required to undertake Picking and Putaway, and for two short occasions Packing, throughout the whole of the reference period for all tasks, the Job Holder is required to maintain a level of flexibility in that they may be asked to perform additional operations / processes to which they were not allocated, based on the demands of the warehouse, provided that they have been adequately trained and are not subject to restrictions.

[236]In practice Mr Hazelhust has done almost exclusively Pick and Putaway, but the claimants have not established, as they first suggested, that the respondents could not change the Job Holders’ duty. To the extent that this entry implies flexibility is commonplace it is incorrect. Collisions in the picking aisle 8.3.4(b)

[237]In manoeuvring the trolley, the Job Holder must be careful not to collide with other warehouse operatives and/or hit their shins on the trolley, which is not uncommon may be weekly. The Picking aisles are one-way only to minimise the risk of collisions.

[238]Mr Naylor said this could happen once per week. Mr Hazelhurst did not suffer any such injury, but we accept what Mr Naylor said. The bonus / BS issue 8.9.1

[239]For all tasks, the Job Holder is expected to work accurately and at a reasonable basis.

[240]This is an accurate description, but the standards are set for planning purposes. The bonus / BS issue 8.9.3.1

[241]8.9.3.1 For all tasks, the Job Holder is continuously under pressure to reach their bonus target (comprising either individual or group performance standards which are required to be met in order to achieve their bonus target). 8.9.3.1 Bonus performance standards are fixed across the board for all tasks. The amount of bonus paid to the Job Holder correlates to the Job Holder’s utilisation. 8.9.3.4 85% performance is the minimum expected of the warehouse operatives. Bonus payments are paid to the Job Holder when the Job Holder reaches 90% performance or above. 8.9.3.5 If the Job Holder continues to fail to reach their bonus targets, they will be subject to an investigation, and if necessary, take part in a disciplinary process. 8.9.3.6 Further underperformance could lead to a further investigation meeting, disciplinary meeting and ultimately could lead to dismissal.

[242]This is addressed in paragraph 27 of the witness statement of Mr Naylor. He was not cross examined upon it. He does not refer to bonus being triggered from a performance rate of 90% but said that, at one point historically, bonus started at 85%. He did not say at what point bonus is now generated. He said the issue of the pace at which a worker operates, and bonus is achieved were indivisible and that all that could really be established is that if the Job Holder worked as hard as he could he would maximise his bonus potential. He confirmed that they planned to a figure of 95%. We do not regard this evidence as establishing the Job Holder is continuously under pressure to meet their bonus, not least because the worker does not know to what level they are working.

[243]There is no evidence from Mr Hazelhurst of pressure. There is no evidence of any performance management of a Job Holder who failed to achieve a bonus.

[244]The only reliable approach is to delete these passages in their entirety, because they are not an accurate analysis of the demand mentally of working to achieve the bonus. There is no evidence about performance management or disciplinary action for failing to meet the bonus target, as suggested. Temperature in packing area 8.10.1.19

[245]For some tasks located on some floors of the warehouse, in the Summer, the area of the warehouse in which tasks take place becomes very hot. This is the case for [both] the [Inducting and] Packing tasks carried out by the Job Holder.

[246]We do not consider the word very adds anything to the word hot, which will be construed differently by different people. It is safer to use figures of Celsius or Fahrenheit. There is no need to identify the tasks.

Background

[247]By paying a remuneration package which reflected the market rate, which included the basic pay, the business need for the warehouses was met. The second respondent could not reduce this without a risk of jeopardising the required service from warehouses for online sales and to stores.

[248]Mr Short says that does not justify paying the lower rates to the sales consultants. The impact upon the retail staff was that they were not receiving a similar level of remuneration in their basic pay for doing equal work. Although the hourly difference was less than a pound and reducing over the relevant period, the marginal purchasing power of such sums should not be underestimated for pay rates at this level.

[249]The respondents make a number of points about proportionality. Firstly, in respect of its business needs, they were working within a budget to maintain efficiency and the fact the national minimum wage impacted on the rates they paid retail sales consultants should not be viewed in isolation. Mr Miles identified a ‘concertina effect’ of statutory minimum pay levels whereby the budget rises overall because of the need to maintain differentials.

[250]Secondly there were a number of advantages to retail workers which were not available to warehouse staff, by way of non-wage amenities. This would be relevant to assessing the extent of the disadvantage.

[251]The respondents rely upon the 25% discount on merchandise taken up by the retail staff. That is more than the warehouse staff: 81-93% to 39-49%. That is not helpful. It was available across the board. That it was taken up by one group rather than another has no weight in terms of proportionality.

[252]There was a working wardrobe allowance of 75%. It was available to the retail staff only. Staff could choose a broad range of items from the formal to the casual. It was not openly branded as NEXT wear. Staff could opt out of the scheme, but few did. Ms Cherry used the discount. In her witness statement she was quite disparaging about it. She said there were strict rules as to what they could and could not wear. She described it as a uniform. In the early days she said she had to parade up and down, in front of managers. One manager was leery towards younger women. She said they showcased the merchandise. When cross examined she acknowledged that most people preferred to wear these clothes rather than a uniform and that they regarded it as a perk. An example of the range of clothing available reflected a broad range and taste. Staff feedback was that the allowance was a real benefit. It was an amenity to which we have regard on issues of proportionality.

[253]The respondents submitted this part of Ms Cherry’s evidence had been presented to support the opinion of Dr Pettinger of a “practice of stores hiring attractive and young employees, particularly in clothes stores as brand ambassadors or models, with generated performances of labour that differ depending on the product being sold”. An email referring to female staff as ambassadors was said to be indicative of a message which had been stressed in every store in which she had worked. The email was a summary of comments of the views of 6 focus groups of customers in 2017. We accept the submission of the respondents that this has been given a prominence the remark does not warrant. We recognise the dangers of drafting witness statements to complement other features of the case for optimal presentation. The negative portrayal of the benefit by Ms Cherry was not convincing. The above quotation of Dr Pettinger would not be a fair reflection of the policy.

[254]Two other benefits which retail staff could use were the Shift and Contract Marketplace. These schemes were available until 2022 when there was a change of computer platform. Attempts are being made to upgrade the functionality to reintroduce them.

[255]Shift Market Place allowed staff to manage their shifts on a weekly basis and to pick up additional hours offered or switch shifts with colleagues. The scheme commenced in 2014. Contract Market Place allowed staff to place their shifts on the market to change their contractual hours if they were taken on by another member of staff. They could also take shifts of a staff member who left before a vacancy was advertised. This scheme started in 2017.

[256]The respondents say that the lead claimants could overcome the shortfall in pay by choosing to work in a warehouse. Specifically, they draw attention to the fact that Ms Cherry, the only lead claimant to give evidence, has no obstacle to taking any of the working shifts available, part time or full time. She made a decision not to take up the redeployment opportunity in the 2021 initiative for sales consultants to transfer to the warehouses. In her evidence Ms Cherry said that was because she did not believe it was genuine but a ruse of the respondents in response to the class action of which she was part. We did not accept that. We accepted the evidence of Mr Navarro that this was intended to alleviate the difficulties of recruitment in South Yorkshire. Ms Cherry was unduly sceptical.

[257]The respondents submit that the extraordinary low take up of this opportunity is indicative of the non-wage amenities of retail work and the comparative unattractiveness of warehouse work. It is submitted these are subjective factors so do not trespass on the finding of equal value under section 65(6) of the EqA, which are about demands on the employee by reference to such factors as effort, skill and decision-making and, even if they did they are still available for consideration for material factor defence purposes, see Christie v John E Haith

[2003] IRLR 670

and Blackpool BC [2007]

UKEAT/0428/07/MAA

. They cite the enjoyment derived from customer service and job autonomy in sales, sense of purpose, pride, interest or preference in the product, brand, social status, appealing surroundings, location, ability to socialise with colleagues, selfexpression, a sense of belonging and camaraderie. This is to contrast a working life in a big metal box, an environment of piped-music, the drone of machinery, machinery vibration, alarm sirens and the screeching of machinery, wheels and rollers continuously present in all areas, to which the worker was continuously exposed including during rest periods and lunch breaks if spent on the warehouse floor. In support of this, Mr Green relies upon Ms Cherry’s acceptance in cross examination that this extract of a job description from the Stage 2 proceedings was not appealing and that a warehouse job did not seem particularly attractive but if it had been a lot more money she would have considered it.

[258]If a barrier is absolute the discriminatory effect is substantial. A height restriction to work in a police force could never be surmounted by a woman who was not tall enough. The redeployment scheme demonstrated that the discriminatory impact is not as stark for retail workers as in the example of a height restriction in the police. Nevertheless, it is not an attractive argument to say that the barrier could have been overcome, by leaving a job which is of equal value to do another job of the same value but at the higher rate of pay in these circumstances. We did not regard the fact that Ms Cherry nor any other claimant took up the offer of redeployment in 2021 as of any real significance. To uproot one’s life from family, friends and associates to a different part of the country for a job paying not an enormous amount more would be unrealistic, regardless of the non-wage amenities in retail. This would be to apply an unfettered free market model of supply and demand. That is inappropriate for the reasons explained by Professor Bryson and Mr Miles.

[259]We accept the impact of the lower basic pay of retail staff is ameliorated to a degree by the non-wage amenity aspects to the retail jobs. The idyllic portrayal of the advantages of the workday of a sales consultant against the grim endurance of the warehouse worker painted in written submissions of the respondents was something of a parody, but retail work had positive aspects which Ms Cherry acknowledged, albeit perhaps a little reluctantly.

[260]Paying a higher rate of basic pay to sales consultants which was not necessary from a commercial perspective would come at a cost to the business and impact on the profitability of the first respondent and the NEXT Group. The claimants say cost cannot be advanced as an excusable defence to discrimination and if market forces prevailed in such cases it would defeat the purpose of the legislation.

[261]The question of whether market forces and costs may be deployed successfully as a defence is an issue which has been considered in a number of cases over recent years. The respondents draw attention to Enderby. In that case the local authority had argued that the variation in pay between speech therapists and pharmacists was due to market forces, in that the NHS had greater difficulty filling posts for pharmacists than speech therapists. The Tribunal rejected the defence on the basis it only partially justified the difference, but the EAT held that once it had been found that market forces were genuinely material and not de minimis the whole difference was justified. The Court of Appeal referred a preliminary issue to the ECJ, considering that the whole of the variation may not be justifiable under Bilka. It was agreed that market forces contributed to the difference to the extent of 10%. The question to the ECJ was whether it was necessary to justify the whole or substantially the whole of the variation or whether it was sufficient to justify only a part. The ECJ held: “26. The state of the employment market, which may lead an employer to increase the pay of a particular job in order to attract candidates, may constitute an objectively justified economic ground within the meaning of the case law cited above. How it is to be applied in the circumstances of each case depends on the facts and so falls within the jurisdiction of the national court.27. If, as the question referred seems to suggest, the national court has been able to determine precisely what proportion of the increase in pay is attributable to market forces, it must necessarily accept that the pay differential is objectively justified to the extent of that proportion. When national authorities have to apply Community law, they must apply the principle of proportionality.

28. If that is not the case, it is for the national court to assess whether the role of market forces in determining the rate of pay was sufficiently significant to provide objective justification for part or all of the difference.

29. The answer to the third question, therefore, is that it is for the national court to determine, if necessary by applying the principle of proportionality, whether and to what extent the shortage of candidates for a job and the need to attract them by higher pay constitutes an objectively justified economic ground for the difference in pay between the jobs in question”.

[262]Ms Donnelly also says the domestic authorities of Cumbria County Council v Dow

[2008] IRLR 91

and Bury MBC v Hamilton

[2011] ICR 655

support the principle that market forces may constitute a defence of objective justification.

[263]Mr Short, in contrast, relies on dicta of Arden LJ in Armstrong (No 1) v Newcastle Hospital Trust

[2006] IRLR 124

. Having considered submissions about the case of Ratcliffe, she said, “It is important not to read the decision too narrowly. It was not necessary for the applicants to show that the reason why competitors paid dinner ladies less than the applicants’ comparators was because they consciously discriminated against women. As Lord Slynn observed, in the passage I have already cited, to permit employers to rely on market forces as the reason for reducing women’s pay below that of their male comparators would be to permit the very kind of discrimination the 1970 Act sought to redress. In equal pay cases, it is necessary at all times to keep in mind the overarching social and economic purposes of the legislation”.

[264]From these authorities we draw the conclusion that market forces may be a legitimate aim, but the Tribunal must always then consider issues of proportionality. Market forces are broader than costs. As is apparent from Enderby, issues of recruitment and retention may be in issue in one market but not another. In Armstrong (No 1), Arden LJ had not said that market forces were impermissible in principle, notwithstanding the above dicta read in isolation might suggest that. At para 38 she said, “The House of Lords held that the tribunal was entitled to make that finding. Lord Slynn expressed the view that ‘to reduce the women’s wages below that of their male comparators was the very kind of discrimination in relation to pay which the Act sought to remove.’ In other words, once it was shown that the rates of pay for dinner ladies were determined by rates applicable to what the market perceived to be women’s work, competitive forces did not, in the circumstances of that case, constitute a defence and objective justification had to be shown” [emphasis added].

[265]The issue of costs being the reason for the difference in treatment has been the subject of a number of authorities: In Jørgensen v Foreningen af Speciallæger and Sygesikringens Forhandlingsudvalg

[2002] 1 CMLR 40

the ECJ held that budgetary considerations cannot in themselves justify discrimination on grounds of sex, but measures intended to ensure sound management of public expenditure on specialised medical care and to guarantee people’s access to such care may be justified if they met a legitimate objective of social policy, were appropriate to attain that objective, and were necessary to that end.

[266]A number of domestic authorities have addressed the proper approach to cost in the context of a defence to an indirect discrimination complaint. The latest is Heskett v Secretary of State for Justice

[2021] ICR 110

. Underhill LJ approved the principle, derived from the above CJEU authority, that the saving or avoidance of costs alone will not, without more, amount to achieving a legitimate aim. He expressed the view that terms which have been adopted to define, on the one hand, the impermissible extent of this defence, ‘costs alone’, and, on the other, aims which may be argued to be legitimate because there is something additional, ‘costs plus’, were best avoided because they risked the adoption of an inappropriately mechanistic approach. He said that the Tribunal should consider how the aim can be most fairly characterised and it would only be if it was solely to avoid costs increases that it should be treated as illegitimate. A distinction in the case law suggests an employer’s need to reduce expenditure to balance its books may constitute a legitimate aim and a real need to reduce or contain staffing costs would suffice. Underhill LJ observed that “it may sometimes be difficult for a tribunal to draw the line between a case where an employer simply wishes to reduce costs and cases where it is, in effect, compelled to do so. But tribunals often have to make judgements of that kind”.

[267]Viability, resilience and successful business performance [aim 1] is advanced as the legitimate aim. In its full definition, at paragraphs 159, it includes components of recruitment and retention and market forces. Market forces was said to be a factor to explain the difference. Basic pay in the warehouses was lower than many competitors. The structure of the remuneration package favoured the productivity bonus increasingly over the relevant period.

[268]With respect to aim 1 this was achieved by the factors, insofar as paying the market rate satisfactorily sustained retention and recruitment in both sectors. The second respondent never had to go above and beyond the market rate to address recruitment and retention problems, either with respect to basic pay or the remuneration package overall in the warehouses. Rainey v Greater Glasgow Health Board

[1987] AC 224

was an example of a case where the respondents had had to pay beyond the nationally agreed rate (the Whitley Council scale), to attract sufficient staff for a new inhouse prosthetics department. The material factor defence succeeded because the service could not have been established within a reasonable timeframe without paying the higher rate. The present case is dissimilar. The aim was just a financial one; the respondents could have afforded to pay a higher rate of basic pay to retail staff as some competitors did, but paramountcy was given to keeping costs in the labour budgets to their minimum. That enabled the first respondent and the Group to maintain and maximise profitability. This furthered one of the directors’ statutory obligations, to the respondents’ shareholders.

[269]There is no real scope for any costs plus ingredient, when the whole drive was about cost saving, a consistent theme of the relevant witnesses. We recognise in the broadest sense that business decisions in this industry were not just about making profits. High street shopping has been on the wane leading to the closure of stores and the loss of retail jobs over a sustained period. The claimants pointed out in closing submissions that there was no evidence the reduction in stores was the reason retail wages were held at or near national living wage rates. But the first respondent has survived where many other retailers have gone to the wall. This was achieved by careful management, particularly in the field of budget planning. Difficult decisions made by businesses are not made with full foreknowledge of the headwinds and so what may appear to be ungenerous wage settlements yesterday may transpire to have avoided business failure today. The fact that the first respondent has made sustainable profits throughout the period, save for the year after lockdown, and could absorb the cost of the same basic pay for work of equal value is a judgment the Tribunal can pass with the merciless wisdom of hindsight. All that said, we are satisfied that with respect to basic pay the legitimate aim of viability, resilience and successful business performance [aim 1], fairly characterised, falls on the wrong side of the demarcation line, of costs only, with no element of costs plus.

[270]Even were we wrong, and this were a permissible aim, the payment of different sums of basic pay, for the factors, was not reasonably necessary to meet it. The business need was not sufficiently great as to overcome the discriminatory effect of lower basic pay, having regard to all the considerations we have explained above, including the financial headroom and having given all due allowance for the non-wage amenities in retail. Mr Short is correct to say that for market forces to be a trump card in this way would defeat the objective of the legislation; lower pay in particular sectors due to indirectly discriminatory practices could then be lawfully sustained in perpetuity. There must usually be a more compelling business reason for such arrangements to be justifiable, such as with the incentivised productivity bonuses we consider below.

[271]The defence under section 69(1)(b) is not established. Covid19 & furlough – term 1

[272]Between 14 April 2020 and 27 June 2020 warehouse operatives who returned to the warehouse early from furlough were paid an additional 10% on basic pay. This followed a two-week shutdown. The agreement with USDAW was to incentivise employees to return to work. Mrs MacIntyre said they had asked for volunteers. There were not enough.

[273]Stores reopened at the end of May 2020. Lower numbers of staff were needed because of restrictions. Trade was down by 63% in June 2020. Return by retail sales consultants was voluntary and sufficient numbers came forward. There was a flexible furlough scheme in operation from July 2020.

[274]The only factors for which this difference in pay could be explained was the fifth, incentivising consistent and high attendance and the sixth, business viability, resilience and performance. There was no evidence that there was a market force which influenced this payment, or it concerned business recruitment and retention. The staff were otherwise on furlough.

[275]The decision to pay this sum to warehouse staff but not to retail staff had nothing to do with sex. Different circumstances prevailed to the return to work of the respective groups. There was no need to incentivise a return of retail staff in contrast to warehouse staff, which was over 2 months earlier in national lockdown. The evidence in this respect was from Mrs MacIntyre, Mr Kelly and Mr Mason. It was not subject to any challenge. The material factor defence under section 69(1)(a) is established.

[276]Proportionate disadvantage to women as a group and the lead claimants

[277]The legitimate aim is viability, resilience and successful business performance [aim 1]. The 10% temporary enhancement to current staff was for a very specific purpose: encouraging people to work in the early stages of lockdown. It was a means of achieving aim 1. There had not been sufficient volunteers before it was offered.

[278]The issue is proportionality. Was applying this temporary wage enhancement for the fifth and sixth factors a proportionate means of achieving that aim?

[279]It was. A problem arose at a particular point in time with the warehouse workers. It did not arise two months later with sales consultants. It is likely the influence of the union resulted in this benefit but that is incidental. The discriminatory effect was not receiving a 10% enhancement for a fixed period, but the business need could not realistically have been met in any other way. It was a reasonably necessary measure of achieving the aim.

[280]The material factor defence under section 69(1)(b) is made out. Peak Premium Bonus – term 1

[281]Between 3 October 2021 and 1 January 2022 an additional £1 was paid to warehouse workers for every hour worked, including basic, overtime, peak working week and variable flex hours but not for holiday or sick pay.

[282]According to Mr Kelly the second respondent was significantly adrift in the market rate for basic pay within warehousing for this period. The competitor Amazon had offered a £1,500 joining bonus to new warehouse operatives and an hourly rate of £11.10. Mrs MacIntyre said, “Amazon had 3 warehouses in the Doncaster/Knottingley area (just 13.1 miles from Elmsall site) and were offering a pay package that included a basic rate of pay for days of £10.40, +16.4% for nightshift working equating to £12.11 per hour, a £1,500 sign on bonus (pro rata), overtime for the first 40-50 hours at £15.60, and overtime for the next 50-60 hours at £20.80. Our equivalent package at the South Elmsall site was a £9.30 day rate, +20% for nightshifts equating to £11.16 per hour, overtime (at time and a half) at £13.95, £1.00 per hour temporary seasonal uplift, plus bonus schemes ranging from £0.50 - £5.00/£0.75 - £2.50 per hour and a 25% discount”.

[283]The evidence clearly established that the payment was made at this peak period up to Christmas because of the risk of losing staff and the need to deter them from leaving to work for more money with the competition. No such challenge arose in the stores. This was a payment which had nothing to do with gender and was for market forces [factor 1], recruiting and retaining sufficient warehouse labour [factor 2] incentivising consistent and high attendance [factor 5] and business viability, resilience and performance [factor 6].

[284]Proportionate disadvantage to women as a group and the lead claimants

[285]The legitimate aims are said to have been viability, resilience and successful business performance [aim 1] and incentivising consistent and high warehouse attendance [aim 4]. Those were business needs at that time and the payment of the peak premium bonus was an appropriate means to meet that need.

[286]It was proportionate, that is reasonably necessary. We do not consider any lesser measure would have sufficed. Nor would it have been proportionate to pay sales consultants a peak premium bonus when there was not a comparative crisis arising from competition for their labour. Unconsolidated awards - term 2

[287]During the relevant period, warehouse operatives were entitled to unconsolidated awards: 287.1. In March 2017, an award of 0.5% of annual basic salary. 287.2. In February 2018, an award of £50 for full time employees, and £25 for part time employees. All comparators were part time at the relevant time and therefore received £25. 287.3. In March 2023, an award of £100 for full time employees and £50 for part time employees. Andrejs Zale was full time at the relevant time so received £100, and Calvin Hazelhurst, Richard Parker and Steven Oliver were all part time, so received £50.

[288]Sales consultants did not receive unconsolidated awards during the relevant period.

[289]The rationale for these payments was given by Mrs MacIntyre. One-off payments were negotiated with USDAW to conclude deals. She said this enabled the respondents to avoid paying additional basic pay which would provide a lower base from which to start the following year’s negotiations. These were described as, “creative solutions to keep pay rates down, but still to achieve a deal with the union”.

[290]The factors are said to be market forces [factor 1], recruiting and retaining sufficient warehouse labour [factor 2] and business viability, resilience and performance of the Next Group and Subsidiaries [factor 6]. Sealing the deal with the union can be construed as being about factor 1 and factor 6 and, indirectly, factor 2. The payment of the sums to the warehouse operatives and not the sales staff was not because of gender. The defence under section 69(1)(a) succeeds.

[291]Proportionate disadvantage to women as a group and the lead claimants

[292]The aims are said to be viability, resilience and successful business performance [aim 1]. It was obviously advantageous to seal agreements which would be approved by the membership of the union and avoid difficulties in industrial relations. The payment would be a means of meeting that aim

[293]The difficulty for the respondents is that this was so clearly connected with determining the rate of basic pay, by keeping it lower than it otherwise would have been, that it is essentially a cost saving issue. It is true that it arose in a particular context, namely collective bargaining, and that was not therefore an issue which would apply to the retail workforce. The claimants rightly say that it is not sufficient for the respondent to show only a business need in respect of the comparators but they must also demonstrate it was not proportionate to make this payment to the claimants, as their labour was of equal value.

[294]The character of the payment is so closely aligned to the underlying basic pay of warehouse workers that we are satisfied it falls on the wrong side of the costs only/costs plus demarcation line. The terminology of the aim as business performance and additional involvement of collective bargaining does not cloak the aim with legitimacy.

[295]Had we found the aim to have been legitimate, we would have considered the factors to have been a proportionate means of achieving the aim. No obvious lesser measure was identified. Attendance Bonus - term 3

[296]An attendance bonus of £1,000 was paid to warehouse operatives at Elmsall Complex only (not DVB), in January 2022 for 100% attendance in the period October to December 2021. A £500 bonus was also payable for 95% - 99.9% attendance. In each case these sums were pro-rated for part-time employees based on contracted hours. Of the comparators, Calvin Hazelhurst and Richard Parker were at Elmsall and, therefore, received attendance bonuses under this arrangement. The lead claimants were not eligible to and did not receive this attendance bonus.

[297]Mr Kelly and Mrs MacIntyre said this was paid to encourage retention, to discourage the lure of Amazon’s financial package in particular and to encourage attendance every day.

[298]The principal factor for this payment was recruitment and retention [factor 2], but that impacted on others, market forces [factor 1] and business viability, resilience and performance of the Next Group and Subsidiaries [factor 6]. Factor 5, incentivising consistent and high attendance in the warehouse, was the means to obtain the bonus, but was not the reason for the payment of this bonus, see paragraph 156 above. The bonus was unique to this period. It would not have been paid but for the aggressive competition from Amazon at that moment in time. Factors 1, 2 and 6 explain the reason for the Attendance Bonus. They were nothing to do with gender. The defence under section 69(1)(a) is made out.

[299]Proportionate disadvantage to women as a group and the lead claimants

[300]The legitimate aims relied upon are viability, resilience and successful business performance [aim 1] and incentivising consistent and high warehouse attendance [aim 4]. Aim 4 is not relevant to payment of the attendance bonus for the reasons we have rejected factor 5 as a reason for the difference in treatment between the lead claimants and their comparators. The payment of Attendance Bonus for factors 1, 2 and 6 was an appropriate means of achieving aim 1.

[301]The question is whether it was proportionate. It was a reasonably necessary measure of meeting the aims. No obvious alternative was suggested. As with all of these terms, the discriminatory effect was not receiving the payment for undertaking work of equal value. But that was no different from those warehouse workers who worked at DVB, such as Mr Zale and Mr Oliver who were not eligible. This was targeted directly to meet the proximate threat of departures to Amazon at Elmsall and was for a limited period of time. We are satisfied the payment for the factors identified to meet aim 1 was proportionate. No comparable problem arose in the retail sector requiring such a payment. The defence under section 69(1)(b) is established. Sunday Pay Premium - term 4

[302]For warehouse operatives starting prior to October 2006, Sunday pay premium was paid at 25%. For those starting after October 2006 but before 2017, Sunday pay premium was paid at 15%. In 2017, it was removed for all new starters, but those entitled to Sunday pay premium under their existing contracts continued to receive it.

[303]By reason of their respective start dates during the relevant period, Steven Oliver and Richard Parker were paid Sunday pay premium at a rate of 25%. Calvin Hazelhurst and Andrejs Zale were paid at 15%.

[304]For sales consultants starting prior to November 2001, Sunday pay premium was paid at 50%. For those starting after November 2001 but prior to June 2006, Sunday pay premium was paid at 25%. For those starting after June 2006 up to 30 September 2008, Sunday pay premium was paid at 10%. For those starting on or after 1 October 2008, no Sunday pay premium was paid.

[305]In June 2015, Sunday pay premium was removed for all sales consultants previously receiving it at any rate. They received a payment calculated at one quarter of any Sunday Pay Premium received in the previous 12 months.

[306]By reason of their respective start dates, during the relevant period and until June 2015, Amanda Cox and Alison Milton were both paid Sunday pay premium at 50% and Helen Cherry was paid at 25%. (Helen Cherry, who was the only lead claimant regularly to work Sundays was paid £144.60 by way of compensation for the removal of Sunday pay premium on 26 June 2015.)

[307]Mrs MacIntyre explained the reasons for the many changes in the warehouses. The 2002 benchmarking exercise identified that among local competitors, other small employers (50 – 150 staff) did not pay a Sunday premium, but Superdrug (which was on the same industrial estate) paid Sunday pay at 1.5 rate. During 2006 as part of a cost saving measure, the second respondent negotiated a reduction in Sunday pay for new starters, reducing their Sunday premium rate from 25% to 15%. The business case for current employees was not agreed by USDAW but the change was agreed for new starters. This change was effective for all new starters from 1 October 2006 onwards. The Sunday pay rate was under review in subsequent years. Benchmarking in 2013 identified that for new starters, CEVA, Claire’s Accessories and DHL paid Sunday 2x; Morrisons, Royal Mail, Superdrug and Waitrose paid 1.5x; and Tesco paid 1.25x, but many other employers did not pay any increased Sunday pay. Sunday pay was becoming generally less common, for example the June 2016 Pay Climate Bulletin recorded that just 5 out of 23 employers in the retail sector paid a premium for working Sundays.

[308]There was also a move by many employers to fund increases to basic pay pushed up by the national living wage by making cuts to Sunday pay. For example the March 2016 Pay Climate Bulletin records that John Lewis (which owns Waitrose) was ending Sunday premiums for staff recruited after February 2016. A review of pay rates in 2016 identified that local competitors were no longer paying Sunday pay rates, and that 70% of companies surveyed by Alan Jones nationally were not paying premiums for Sundays. The second respondent therefore identified that removing Sunday premium for all future employees would be desirable and could be justified. This change took effect from 1 February 2017. It was negotiated with USDAW on the basis that premium was incorporated into the 15p enhancement in basic pay. The second respondent was not in a position to remove the rates for Sunday pay for warehouse operatives recruited before this date, however reducing the rates for future employees represented a cost saving measure which would have increasing effect with the turnover of warehouse operatives each year.

[309]In respect of retail, Mr Mason said that the market drove the changes. He said no new starter could get a job in that market and receive a Sunday premium. By the time it was abolished in June 2015, only 1 out of 10 were still receiving it on a legacy basis and that seemed inequitable.

[310]The factors relied upon for the difference in payments are market forces [factor 1], recruiting and retaining sufficient warehouse labour [factor 2], maintaining 24/7 working [factor 3] and business viability, resilience and performance of the Next Group and Subsidiaries [factor 6]. These factors, as described by Mrs MacIntyre and Mr Mason, explained how each sector determined the pay levels and how they came to be reduced. We accept that evidence and these factors explained the difference. They were not because of gender. The material factor defence under section 69(1)(a) is established.

[311]Proportionate disadvantage to women as a group and the lead claimants

[312]The legitimate aims are said to be viability, resilience and successful business performance [aim 1] and maintaining 24/7 work [aim 2]. By seeking to track the respective markets in their benchmarking exercise, the different payments to warehouse and retail were an appropriate means to meet those business aims.

[313]Were the aims legitimate or was this simply about cost? Incentivising people to work on what would conventionally be regarded as unsociable hours was not merely about cost, but the different expectations in the respective markets. Many years ago, Sundays was not a permissible day to trade and so the changes in societal attitudes and behaviours have been developing over a long period. The same history is not apparent for warehouse work, but the trend whereby working Sundays no longer attracts premium pay followed a similar trajectory. We regard these additional factors to take the aim beyond merely cost savings and so it is legitimate.

[314]The warehouse workers retained their pay for longer, although there is a common position since 2017 when no new starter in either sector receives a Sunday premium.

[315]We are considering the lead claimants and their comparators. Was it proportionate for different premiums to be paid to those who worked on Sundays and whose work was equal, now reflected in the fact that Ms Cherry receives no Sunday premium but her comparators do, as a consequence of falling into a legacy group of workers? The effect of union representation may explain the better outcomes for warehouse workers in this area, but that is not really to the point. There was a significantly different approach and Ms Cherry did receive a capital payment in compensation for the removal of the premium in 2015. The respondents assert the proportionality arises from different occupational requirements for different labour markets without establishing on the evidence what they were: the reality is both markets require staff to work on Sundays.

[316]The factors were not a proportionate means of meeting the legitimate aims and the material factor defence under section 69(1)(b) is not established. We do not consider the difficulties of attracting warehouse staff to work on Sundays was supported by the evidence. It was abandoned after 2017 for new starters and there is no suggestion Sunday attendance was affected thereafter. This contrasts with public holiday premium, which we address below. In that case an attempt to fulfil the requirement with volunteers failed, even with a premium of double pay. Whilst there were market forces and retention and recruitment issues explaining the differential in Sunday premiums, the business need was not sufficient to outweigh the detrimental discriminatory effect overall. Night Time Premium – term 5

[317]Night-time premium was paid at 33.33% for hours worked between 10pm and 6am for warehouse operatives who had a start date prior to October 2006. For those with a start date after October 2006, night-time premium was paid at a 20% rate. Night-time work was critical to the warehouse operation which worked 24 hours a day, 7 days a week. Orders peaked at 8pm and despatch cut offs for next day delivery fell between 11pm and 5am and so a significant proportion of operatives were required between 10pm and 6am.

[318]The premium was for the anti-social hours worked and was a market standard. The rates were set and varied through benchmarking against competitors.

[319]Steven Oliver and Richard Parker qualified for the 33.33% rate, and Calvin Hazelhurst and Andrejs Zale qualified for the 20% rate.

[320]For retail staff, prior to November 2012 night-time premium was paid at 33%, for hours worked between 9pm and 7am for those who were contracted to work such hours prior to April 2002 and, in all other cases, for hours worked between 10pm and 6am. From November 2012, night-time premium was paid at 25% in respect of hours worked between midnight and 5am for all sales consultants. A small number of retail staff in some city centre stores where vehicular access was restricted had contracts which included some night shift hours. That was not the case for the three lead claimants and so does not fall for our consideration in this hearing.

[321]The stores were not open during the night, but during the sales periods; at the end of the spring/summer season and autumn/winter season the first respondent had sales which attracted heavy trade. The stores opened from 5am. The change in the classification of night-time hours from up to 6am to 5am was designed to make savings because every employee would work two days a year during those sales period. The rationale was not that this was night-time work but starting earlier.

[322]The factors relied upon to explain the difference between night-time premiums paid to warehouse and retail workers were market forces [factor 1], recruiting and retaining sufficient warehouse labour [factor 2], maintaining 24/7 working [factor 4] and business viability, resilience and performance of the Next Group and Subsidiaries [factor 6]. We accept that the evidence of Mr Kelly, Mrs MacIntyre and Mr Mason about the reason the different rates were paid and they touch upon each of these categories. They were not because of the sex of the claimants and their comparators but the different labour markets and need of the two sectors.

[323]Proportionate disadvantage to women as a group and the lead claimants

[324]The aims relied upon are viability, resilience and successful business performance [aim 1] and maintaining 24/7 work [aim 2]. Payment of these respective sums were appropriate means of achieving those.

[325]The most significant difference relates to the hours which attracted the payment. The change from 6am to 5am for retail staff to qualify for the premium was solely about cost saving. It was not an aim which could be legitimate.

[326]In any event we do not regard it as proportionate to meet the aims by reason of the factors relied upon. Anti-social hours do not transpose into social hours by describing them as merely an earlier start in the day, on those occasions when the stores opened. There was no justification to define differently the hours which qualify for the premium because the stores and warehouses have different operational requirements.

[327]With respect to the amount of the premium, the comparators qualified for different rates, 33% or 20% depending on their start date. That difference is one which should be applied to the respective start dates of the lead claimants, who had received 25% from 2012 and 33% before then. That could mean they are not necessarily worse off.

[328]The material factor defence under section 69(1)(b) is not established. Bonus Pay - terms 6, 7 and 8

[329]Throughout the relevant period, warehouse operatives were entitled to receive bonuses pursuant to a scheme recorded in the 2010 Procedures and Rules Regarding the Calculation and Payment of Bonus and, subsequently, the 2013 Bonus Agreement. 329.1. Direct bonuses for work on direct bonus tasks, either as an individual or part of a group. The bonus amount was based on performance and calculated according to a set formula: number of units of production, multiplied by standard minute values (‘SMVs’) and divided by the time in minutes on the bonus task. A bonus was payable at 85 performance and above until 1 April 2019, when it was changed to 90 performance. The bonus rates payable were in the following ranges: 329.1.1. 3 May 2012 to 28 February 2013: £0.69 to £4.25 (from 85 up to 125 performance); 329.1.2. 1 March 2013 to 31 March 2019: £0.71 to £4.35 (from 85 to 125); 329.1.3. For new contracts from 1 February 2017: £0.50 to £2.50 (from 85 to 125); 329.1.4. 1 April 2019 to 31 March 2020: - for established contracts (i.e. pre-1 February 2017): £0.99 to £4.28 (from 90 to 125) – with a 12-month Protection of Earnings Agreement for those who had performed at 85 to 89 over the previous 12-month period; - for new contracts (i.e. post-1 February 2017): £0.75 to £2.50 (from 90 to 125). 329.1.5. 1 April 2020 to 31 March 2021: for both established and new contracts, £0.75 to £2.50 (from 90 to 125) – with a Protection of Earnings Agreement for those on established contracts who had performed at 107 or more, over the previous period 31 March 2019 to 25 January 2020; 329.1.6. At Elmsall only, 27 September 2020 onwards: a trial performance bonus scheme (which became permanent), £1 to £5 from 7/10 to 10/10; 329.1.7. At DVB: - 16 August 2020 to 5 June 2021: as before, £0.75 - £2.50/hour (from 90); - 6 June 2021 to 31 January 2022: DVB trial bonus scheme £1 to £5 from 7/10 to 10/10; - 1 February 2022 to the end of the Relevant Period: as before, £0.75 - £2.50/hour (from 90) and a Super Bonus Scheme doubling the otherwise applicable rates for performance at 115 to 125 (doubled from £2 up to £2.50, to £4.00 up to £5.00). 329.2 Indirect bonuses for work on indirect bonus tasks, which are tasks which were integral operations but difficult to measure individually, such as moving stock around the warehouse. The bonus amount was based on site level performance or a specific area within a site rather than as a direct measure of the individual’s or group’s performance. Direct and indirect bonus work were mutually exclusive. Throughout the relevant period, indirect bonus was paid at a rate of 65% based on direct bonus payments, save for the following: - At Elmsall only, from 27 September 2020 onwards: a fixed rate of £0.50; - From 1 April 2019 to 31 March 2020: the addition of a minimum bonus payment for when the average site performance dropped below 90% for those on established contracts at £0.40 and those on new contracts at £0.28; - From 1 April 2020 to 31 March 2021: a minimum bonus payment of £0.28 for all contracts. 329.3 When undertaking specified work to which direct bonus or indirect bonus could not apply, warehouse operatives were paid an average bonus based on a rolling weighted average of their direct bonus earnings during the previous 4 qualifying weeks. 329.4 In relation to Covid, special arrangements applied: - 26 March 2020 to 11 April 2020: for those on furlough, 100% average bonus based on individual's own bonus earnings in 2019/20 tax year; - 12 April 2020 to 30 June 2020: for those on furlough, 80% average bonus was paid based on individual’s own bonus earnings in 2019/20 tax year; - 14 April 2020 to 27 June 2020: for those returning from furlough, 100% average bonus based on individual's own bonus earnings in 2019/20 tax year.

[330]A number of retail bonuses have been introduced and withdrawn during the relevant period. These were bonus schemes primarily, but not always, based on store performance. They are explained in our decision which was sent to the parties on 27 April 2024. 330.1. Sales Bonus Scheme (2012 to 2014): - Monthly Sales Bonus (3% to 8% based on sales at 95% or above of monthly store targets); - Seasonal Guarantee Bonus (3% to 8% based on sales at 95% or above of seasonal store targets); and - Super Sales Bonus (1% to 7% based on sales at 1% to 10% above seasonal store targets). 330.2. Sales Bonus Scheme (2012 to 2014): - Monthly Sales Bonus (3% to 8% based on sales at 95% or above of monthly store targets); - Seasonal Guarantee Bonus (3% to 8% based on sales at 95% or above of seasonal store targets); and - Super Sales Bonus (1% to 7% based on sales at 1% to 10% above seasonal store targets). 330.3. Customer Experience / Service Bonus (2014 to 2018): - initially, an additional £0.25 per hour for one great mystery shopper visit and an additional £0.50 per hour for two great mystery shopper visits in a month; - from 2018, an additional £1 per hour for two 100% scores during the month. 330.4. Service and Sales Bonus (2018 to 2020). Up to an additional £0.80 per hour depending upon the combination of service (“NEXT Loves to Listen” – based on customer service feedback) and sales (from 95% to 105% of store targets). 330.5. Delivery Bonus (2016 to 2018): Individual performance against delivery targets (below 96% up to 116%) from £0.30 to £1.06. 330.6. Delivery and Sales Bonus (2018 to 2020). A combination of individual performance against delivery targets (below 95% up to 117%) and store sales against targets (Base, Good or Exceptional, based on store sales targets). 330.7. Normal Store Surplus Bonus and Priority Surplus Stock Bonus (2013 - 2019): picking bonuses rewarding staff for the number of items picked (£0.05 to £0.15) with additional seasonal schemes such as (in 2015) Golden Store Surplus, Full Price Xmas Promise, and Platinum Promise and (in 2016) Platinum Store Surplus (increasing rates up to £0.10 to £0.35). 330.8. Directory and Temporary Directory Card Bonuses (2012 to 2018). Signing up customers to NEXT Directory cards. 330.9. Directory Parcel Incentive (2013 to 2018). 15p for every parcel made ready for customer collection within 2 minutes. 330.10. Shoe Incentive (2014): 10p for selling shoes within 30 minutes. 330.11. Replen Bonus (2017 to 2018). Picking items that need replenishment on the shop floor, from £0.20 for 100 items to £1.87 for 170 items. 330.12. Store Collection Bonus (2018 to 2020). Picking and packing a customer order within 40 minutes, initially £0.20 and then £0.10. 330.13. My NEXT Rewards Scheme (from December 2020 as a trial and in all stores from April 2021).

[331]The claimants invite findings that the warehouse performance bonus had the dual purpose of increasing productivity and ensuring the overall remuneration package matched the market. That did not seem to be disputed. The second respondent pays a higher rate of productivity bonus than its competitors but a slightly lower level of basic pay. That was taken into account in the benchmarking exercises.

[332]The claimants invite a finding that a bonus was sometimes payable irrespective of increased productivity. This was true in respect of average bonus. In respect of indirect bonus, it was measured on site or specific area performance, not individual. However, the evidence of Mr Navarro was that there was only a small amount of bonus was paid for indirect work, because those tasks were considerably fewer. The average bonus was also a proportionately small element of total bonus paid. We did not have a breakdown of the respective bonuses for the comparators but accept it would reflect the proportions suggested by Mr Navarro.

[333]The claimants invite a finding that the bonus payable at BS85 was effectively basic pay as almost all employees prior to 2020 at DVB received bonus. Prior to 2019 BS85 was the minimum standard expected of a trained operator and disciplinary action could be taken if it was not achieved. It is said this was not a reward for productivity, but merely working to the required standard.

[334]Mr Churchill produced tables of data which demonstrated the proportion of workers who received bonuses at the respective rates. Between 2012 and 2018 at DVB, between 5% and 15.5% of operatives received no bonus because they operated at below 85. At Elmsall, the rates ranged from 14% to 60% who did not receive bonus. In his evidence, Mr Churchill said that calculations are made for 7,000 workers each week of which 80% received a bonus. Mr Short suggested many of those not receiving bonus were new starters and that the statistics needed to be considered in that context. Mr Churchill could not clarify who fell into the category who did not receive bonuses. There is a new starter running in allowance, for a full-time worker for a week and two weeks for a part-timer.

[335]We do not regard the direct bonus at level BS85 as basic pay. Not only do a significant proportion of workers not achieve the minimum trigger for a bonus, it is part of a graduated scheme in which the levels of productivity are individually remunerated by enhanced payments. It has the effect of reducing the cost per unit. We agree with the submission of the respondents that these were well monitored schemes directly linked to output and of a quite different character to schemes in earlier cases in which the productivity link was highly tenuous, eg Cumbria County Council v Dow

[2008] IRLR 91

[336]The claimants also invite a finding that the first respondents did not assess whether or to what extent retail bonuses could be financed from productivity improvements or sales bonuses. Mr Short asked Mr Mason about analysing till transactions to evaluate savings which might be made with respect to the speed to scan the item, pay for it and pack it. Mr Mason said that this study addressed the problem of a customer looking for their means of payment in a purse or wallet which delayed the process. By scanning the item first and then packing the goods whilst the customer fiddled for their payment card, time was saved. The model used by the statistician suggested there could be savings of £2.9 million based on average transaction times. The claimants say this illustrates how it was possible to introduce productivity schemes in stores, but also an attitude of mind that it did not really matter because it meant no more than a slightly longer queue.

[337]It is fair to say that not all aspects of the work of retail consultants cannot be measured individually, not least because there was a Replen and Delivery Bonus which did just that but which was withdrawn. That and other bonuses which retail workers had received were principally casualties of the rechannelling of funds in the labour budget to meet the yearly increases in the national minimum or living wage. That did not arise in warehouse work, because the margins between the national living wage and the market rate for them was greater.

[338]Professor Bryson observed that for a pay performance structure to be viable the employer must have a means of tracking the worker’s productivity, identifying the contribution the worker makes to output and how those changes over time. Generally speaking it is not possible to measure the performance of the sales consultant in the same way as that of the warehouse worker. That is because of the nature of the work. Warehouse workers individually process units, the number of which can be counted by reference to speed. To effect sales is the essential function of the retail worker. The sale of any product cannot be attributed to any individual worker but depends upon a number of vagaries over which no individual has any control. Although there are certain duties which could be individually measured, such as in replenishment and picking, these could not reflect the majority of what the sales assistant does in a day. The example of the speed at which an item is processed at the till is possibly another, but whether this could be introduced as a viable system of incentivisation is speculative.

[339]The respondents could doubtless have done more to measure and reward higher levels of productivity, such as maintain the Replen and Delivery Bonuses, although they would always be a marginal part of the work of a sales consultant. In these matters, we must remind ourselves that we are not concerned with fair pay but equal pay and it is only through the principles of direct and indirect discrimination as material factor defences that these issues must be addressed.

[340]The factors relied on are market forces [factor 1], recruiting and retaining sufficient warehouse labour [factor 2], incentivising high productivity [factor 4] and business viability, resilience and performance of the Next Group and Subsidiaries [factor 6].

[341]The reasons for the payment of direct bonus to warehouse operatives was principally to enhance performance and efficiency, factor 4, for the reasons Mr Kelly, Mrs MacIntyre and Mr Churchill gave. The other reasons, with respect to indirect and average bonus, were not for efficiency purposes, but to ensure others in the warehouse did not lose out when they were not able to perform the direct bonus tasks, which were the lion’s share of the duties. It maintained their pay within the market rate. All these bonuses were part of the remuneration package and related to factors 1, 2 and 6.

[342]The removal of the respective bonuses from the sales assistants was principally to release part of the wage budget to fund the increases in the national minimum wage. The absence of bonuses more generally was because of the difficulties in measuring their performance, because of the nature of their duties.

[343]The differential in pay with respect to these bonuses was not because of gender. The defence under section 69(1)(a) is established.

[344]Proportionate disadvantage to women as a group and the lead claimants

[345]The legitimate aims are aim 1, business performance and aim 3 incentivising warehouse productivity. The payments for factors 1 and 3 were plainly appropriate means to achieve the aims, for the reasons we have explored above.

[346]We are also satisfied that this was a proportionate means of achieving the aims. With respect to direct bonuses, the sophisticated schemes which drove down costs met a significant business need in a way which could never be achieved within the sales environment. In Redcar and Cleveland v Bainbridge and others

[2007] IRLR 91

the EAT overturned a finding of a Tribunal that a material factor defence failed in circumstances in which bonuses paid to refuse collectors were not paid to caterers and care workers. The bonuses to the refuse collectors had productivity elements. The Tribunal held that it would have been possible for the employer to construct some other scheme for the caterers and care workers to reward them commensurately. That was an error of law. “57. We accept that in assessing the issue of proportionality it may be necessary to focus on the disadvantaged as well as the advantaged group and to ask why the disadvantaged group were not given the same benefits, or opportunities to benefit, as the advantaged group. The council has implicitly accepted as much by conceding that their GMF defence will not succeed if a similar productivity scheme could have been implemented for these claimants. Here, however, there was an obvious and vital difference between the situation of the claimants and their chosen comparators. The refuse collectors were employed in work which enabled a productivity scheme to be adopted and which, as a consequence, brought savings and greater efficiency to the work being carried out for the council. That opportunity did not exist in relation to these particular claimants. The comparators were fortuitously in posts where they could largely pay for their own bonuses by productivity improvements. These particular claimants could not. Mr Allen submitted that a merit based scheme might have resulted in greater efficiencies. However, the Tribunal recognised in terms that they could not be formulated in a way which would save money or be self financing for these particular groups.58. It cannot in our judgment be the case that in order to seek to bring the pay back into equilibrium that the employer should be under some obligation to adopt some other technique, be it a bonus scheme or some other way, of seeking to pay the claimants more. That is simply adding costs to the employer without any corresponding benefits. That argument would always be available where a GMF had been established; if correct it would fundamentally undermine the scope of the GMF defence.

59. Moreover, in our view any such suggestion is inconsistent with the general approach of the courts to the scope of the GMF defence. For example, the European Court has accepted that there may be cases where, for example, full time workers may justifiably be paid more than part timers if there are objectively justified economic reasons, such as the better use of resources by full time workers: see e.g Jenkins v Kingsgate Ltd

[1981] ICR 592

and Bilka Kaufhaus v Weber von Harz

[1987] ICR 810

. It has never been suggested that in those circumstances some alternative scheme should be adopted to allow part timers to be brought up to the same level as the full timers. Nor in our view does the GMF lose its force merely because the disparity in pay is significant or has operated for a long period. 64… Once the Tribunal had concluded that the higher bonus paid to the refuse workers was justified because of the arrangement they made they ought not, in our judgment, to have found that the material factor defence was not made out because of the failure to apply a wholly different kind of scheme for the benefit of these comparator groups. As the Tribunal accepted, no such scheme could finance itself or indeed involve any savings to the council” [emphasis added].

[347]There are distinguishing features on the facts of this case. There were a number of bonus schemes in retail over the relevant period. The claimants would say it is not a case of the Tribunal requiring the respondents to create or adopt a similar scheme. In reality, we are satisfied that is what we are being invited to do.

[348]The Replen and Delivery Bonus and the shoe bonus were capable of monitoring individual performance, but they were a small part of the duties of the lead claimants and could not conceivably reflect the extensive direct bonus scheme which applied to the majority of the warehouse operatives’ duties. The retail sales bonuses between 2012 and 2020, which became coupled with other bonuses after 2014, were measured against store targets and did not improve the marginal product by reference to the input of the worker. As Professor Bryson observed, the duties of the sales consultants were not capable of this type of cost incentivisation. The warehouse workers, in contrast, could be measured for every minute of work during the day with the effect of reducing the cost of processing the goods.

[349]The indirect and average bonuses were in a different category, but these were important means of maintaining retention and improving recruitment in an increasingly difficult marketplace which did not apply in retail. They were not significant in the comparison and could not have been replicated.

[350]We reject the submission of the claimants’ counsel that the evidence supported the notion that similar schemes had been and could be available to reward productivity similarly.

[351]For the reasons advanced above in Bainbridge, the justification for productivity bonuses is established here. Holiday Bonus - term 9

[352]For warehouse operatives from the start of the relevant period until August 2014, a holiday bonus was paid for the first 20 days of holiday (or pro rata for part time workers), based on an average of their bonus earned, calculated over the previous 3 months earnings up until April 2020 and the previous 12 months earnings thereafter; and from August 2014 this calculation incorporated overtime pay (including additional hours at normal rate up to Full Time Equivalent (‘FTE’) and overtime pay above FTE).

[353]For sales consultants from the start of the relevant period until August 2014, store-based bonus payments referable to store performance were paid based on the number of qualifying hours worked by each sales consultant during the relevant period, including paid holiday hours; from August 2014, sales consultants received a holiday supplement for the first 20 days of holiday (or pro rata for part time workers) which included average additional hours worked and bonus earnings, calculated over the previous 3 months earnings up until April 2020 and the previous 12 months earnings thereafter.

[354]In closing submissions, it was accepted that there was no significant difference between these terms. The difference arose from the entitlement to productivity bonuses, which had a consequential effect on the calculation of holiday bonuses. The material factor defence is established in respect of bonuses for the reasons set out above and so this is not a comparative term which requires any equivalence. Bank Holiday Bonus - term 10

[355]For warehouse operatives, payment of average bonus for leave taken on Bank Holidays was phased in over the period 2011 to 2014, with 1 Bank Holiday attracting bonus from February 2011, 2 from February 2012, 3 from February 2013, and any remaining Bank Holidays from 1 February 2014 onwards. The calculation for the average bonus applied to Bank Holiday leave days was the same as the calculation for any other leave day, i.e. as set out for holiday bonus.

[356]For sales consultants, if leave was taken on a Bank Holiday the same calculations were made set out as for holiday bonus.

[357]In closing submissions, it was accepted that there was no significant difference between these terms. The difference arose from the entitlement to productivity bonuses, which had a consequential effect on the calculation of holiday bonuses. The material factor defence is established in respect of those bonuses for the reasons set out above and so this is not a comparative term which requires any equivalence. Public Holiday Premium - term 11

[358]For warehouse operatives during the relevant period with a start date before 1 February 2017 (which includes all comparators) pay for hours worked on a public holiday (or additional time off in lieu of hours worked) was basic pay plus double the basic pay rate (that is triple pay); public holiday premiums were removed for new starters after 1 February 2017.

[359]Sales consultants, including the lead claimants, were paid at time and a half their basic hourly rate when working on Boxing Day, but otherwise received their normal hourly rate when working on a public holiday.

[360]The respondents say the rationale for paying Public Holiday Pay to Warehouse Operative was explained in Mrs Macintyre’s witness statement. “As a business we require warehouse operatives to work on bank holidays to keep the business operational all year round. However employees often did not want to work bank holidays, and therefore we paid a premium rate or offered time off in lieu for those who worked them. This was to incentivise employees to work those days, which were regarded as unsociable, and to remain competitive in the market. Bank holiday work was an emotive issue with USDAW and a topic that was frequently discussed.”

[361]Before 2002 public holidays had been paid at double pay. The second respondent rejected a request of the union to make bank holiday working voluntary but agreed to ask for volunteers in the first instance. There was an insufficient take up and the second respondent had to supplement numbers by calling on others pursuant to their contractual duties. Following collective consultation in the 2003/04 joint statement it was agreed that pay for hours worked on a public holiday (or additional time off in lieu of hours worked) was basic pay plus double the basic pay rate.

[362]In respect of new starters after 1 February 2017 an additional 15p enhancement to basic pay was agreed following collective bargaining in consideration for the loss of public holiday premium. This arose following benchmarking exercises which revealed some competitors, including Amazon, did not pay public holiday premiums.

[363]The sales consultants had received time and a half payment for all public holidays, but these were removed in March 2002 save for Boxing Day, in return for an additional day of leave. That followed a consultation in which the proposal was approved by 89%. The first respondent no longer opens its stores on Boxing Day and so that premium has become academic.

[364]We accept these were the reasons for the differential and they fell within the material factors relied upon, market forces [factor 1], recruiting and retaining sufficient warehouse labour [factor 2] and business viability, resilience and performance of the Next Group and Subsidiaries [factor 6]. The decisions were largely dictated by the market in the respective sectors and the negotiations which followed. To maintain staffing levels at the necessary levels in the respective markets the respondents chose these differential premiums. Gender was no part of the reason, or motivation, for the difference. The defence under section 69(1)(a) is established.

[365]Proportionate disadvantage to women as a group and the lead claimants

[366]The aims are viability, resilience and successful business performance [aim 1] and maintaining 24/7 work [aim 2]. To the extent that this reflected adopting standards in the respective marketplaces, the differential premiums were an appropriate means of achieving these aims.

[367]The aims were not merely about saving cost, because there were different operational requirements whereby the warehouses opened 24 hours a day for seven days a week in contrast to the stores which did not operate around the clock. That led to a different approach to the changes in the entitlement in the respective labour markets. The respondents gave something in return for the premiums which were foregone in each respective marketplace. The aims were legitimate.

[368]Since 2017 there is no difference in premiums for those who commenced work after then. That would not be the case in respect of the lead claimants and their comparators. Because of the different circumstances in which this premium evolved, we are satisfied that the approach was a proportionate means of achieving a legitimate aim. The difficulties in finding sufficient warehouse staff to work on public holidays was demonstrated by the attempt to use only volunteers in 2002. There was an insufficient number, notwithstanding they were then receiving double pay. No comparable problems arose for attracting sales assistants on public holidays. The subsequent increases in premiums for warehouse staff reflected this particular issue.

[369]Changes in the market led to it being discontinued after 2017, albeit only for those who started work after that date. Two different forms of payment had been implemented for warehouse staff by then in the form of an extra 15p per hour. This was the beginning of the most difficult period in respect of retaining staff who might be attracted by offers from competitors and factor 2 had become particularly pressing. Given the compelling business needs over the relevant period, we are satisfied that it was proportionate, or reasonably necessary, to adopt and maintain this differential.

[370]The defence under section 69(1)(b) is established. Notional Public Holiday Premium - term 12

[371]It was agreed in collective bargaining in the Joint Statement for 2008/09 warehouse operatives whose public holiday reduced following a forced shift change were entitled to treat the first contractual day following the public holiday as their public holiday for leave purposes, and for payment of public holiday premiums on that date.

[372]There was no notional public holiday premium applicable to sales consultants.

[373]Mrs MacIntyre said this term was introduced with negotiations about public holiday premiums for warehouse operatives. The same considerations which applied to term 11 are equally relevant to term 12. The material factor defences under section 69 are established. Overtime Premium (Hours Worked above FTE) - term 13A

[374]During the relevant period warehouse operatives received no premium for hours worked up to full-time equivalent hours for their relevant site (40 hours at Elmsall and DVB; 40.25 from September 2020); for additional hours above full time equivalent, those employed prior to 1 February 2013 received double time on Sundays, and time and a half for other days of the week; new starters after 1 February 2013 received the time and a half rate for all overtime days.

[375]For sales consultants from the beginning of the Relevant Period until 12 October 2013, they were paid a 50% premium for all hours worked over 39 hours; from 13 October 2013 no overtime premium was payable.

[376]Mrs MacIntyre said that there were peaks in demand in the warehouse operations which were difficult to predict. Poor weather could lead to an increase in online shopping. Overtime premium rates were offered to provide for flexibility to avoid having to have more staff than were required at quieter times and to avoid the need for agency staff.

[377]Although there had been a premium on respect of overtime for sales consultants until 2013, Mr Mason said that no-one was earning that.

[378]The respondents relied upon market forces [factor 1], recruiting and difference. There were different operational requirements. There was no need to have the same flexibility for staff in the stores for peaks in demand. That is why they did not work overtime, that is in excess of 39 hours a week. The factors relied on are established. The reasons were not gender. The defence under section 69(1)(a) is established.

[379]Proportionate disadvantage to women as a group and the lead claimants

[380]The legitimate aims are viability, resilience and successful business performance [aim 1] and incentivising warehouse productivity [aim 3]. Payment of the overtime premium was an appropriate means of achieving the aims.

[381]In the one instance there was a business need for overtime and in the other there was none. The discriminatory effect was notional given that sales staff were not required to work in excess of 39 hours. Nevertheless, to cover the eventuality that overtime might, exceptionally, be required in retail, there should be equivalence of terms. It was not reasonably necessary to meet the aim to maintain the differential rates. The defence under section 69(1)(b) is not established. Additional Hours Premium - term 13 B

[382]A ‘Golden Christmas’ incentive scheme ran for warehouse operatives from 27 September 2020 to 9 January 2021 at Elmsall only. For extra hours worked over the 15 week period, a higher rate of pay (on top of bonus earnings) was paid for full time employees: over 50 hours, £20; over 65 hours £23, and over 80 hours, £30, provided eligibility criteria were met including no unauthorised absence or sickness, and achieving a minimum performance standard of 7/10 or 85. The rates for part time employees were: over 25 hours, £13.62; over 30 hours, £15.93, and over 40 hours, £18.20.

[383]Other short-term incentives (Elmsall only): 383.1. 6am 30 November 2021 – 5.59am 4 December 2021: basic hourly pay paid at double time on additional hours worked for Warehouse Operatives working on indirect tasks; 383.2. 6am 15 October 2021 – 5.59am 17 October 2021: 2x Direct Bonus on all additional hours worked; 383.3. 3pm 3rd November 2021 – 5.59am 7th November 2021: applicable to Warehouse Operatives who worked at least 8 hours on packing and RTF only - 2x over time and 2 x Direct Bonus; 383.4. 9am 28 November – 5.59am 2 December: applicable to Warehouse Operatives who worked at least 4 hours per day 3 x Direct Bonus on all additional hours worked. 383.5. 6am 2 December 2021 – 5.59am 4 December 2021: applicable to Warehouse Operatives working at least 4 hours per day in all departments (except on Indirect tasks) 5 x Direct Bonus on all additional hours worked.

[384]Sales consultants were not entitled to additional hours premiums.

[385]Mr Kelly said that the schemes were introduced following the pandemic which had led to operational disruption. At this time there was a high demand for online orders and it was the busiest time of the year. He said that without the schemes there was no question that they would not have coped operationally. His evidence was not challenged.

[386]The respondents relied upon market forces [factor 1], recruiting and difference. There was a different operational requirement which arose at only one of the warehouses and was for specific reasons during 2021. The factors relied on are established and the reasons were not gender. The DVB warehouse did not attract the premium either. The defence under section 69(1)(a) is established.

[387]Proportionate disadvantage to women as a group and the lead claimants

[388]The legitimate aims are viability, resilience and successful business performance [aim 1] and incentivising warehouse productivity [aim 3]. Payment of these isolated premiums were plainly appropriate to meet the aims.

[389]We are satisfied they were proportionate. The business need was compelling. It would not be proportionate to have paid the sales consultants these premiums when they were not paid to DVB staff, where there was no business need for them either. The defence under section 69(1)(b) is established. Holiday Entitlement - term 14

[390]In closing submissions, it was accepted that there was no difference in respect of the lead claimants and their comparators. Holiday Pay - term 15

[391]We were unable to identify any material difference with respect to the lead claimants and their comparators. Warehouse operatives were entitled to holiday pay comprising basic pay, contracted premium rates and holiday bonus which from 2014 included overtime as set out under Term 9 above.

[392]Sales consultants were entitled to holiday pay comprising basic pay, contracted premium rates and holiday bonus which from 2014 included overtime as set out under Term 9 above.

[393]Insofar as findings in respect of other terms concerning premiums in which the respondent has failed to establish the material factor defence, the amount of holiday pay due will require inclusion of that amount. That does not mean the formula or metrics of this term warrants correction. Paid Rest Breaks - term 16

[394]During the relevant period, warehouse operatives were entitled to a 10- minute paid rest break when working 4 hours or more, including an employee working a 4-hour shift; two 10-minute paid rest breaks when working 6 hours or more, including an employee working a 6-hour shift; three 10-minute paid breaks when working 10 hours or more, which was replaced with two 15-minute paid breaks from October 2015.

[395]During the relevant period, sales consultants were not entitled to paid rest breaks.

[396]The respondents relied upon market forces [factor 1], recruiting and difference. Mr Mason said that before in the early 2000s paid rest breaks which sales consultants had received were removed following the introduction of the national minimum wage and the requirement to attend early or start late was removed as a trade-off. Unpaid rest breaks were, according to him, an industry standard. Mrs MacIntyre said that breaks were negotiated with USDAW and reflected the repetitive and monotonous nature of the tasks of warehouse operatives. That does not explain why the breaks were paid or not.

[397]We accept the evidence of Mr Mason and Mr MacIntyre as to the reasons these differentials arose, that they fall within the three factors relied and they were not because of gender. The defence under section 69(1)(a) is established.

[398]Proportionate disadvantage to women as a group and the lead claimants

[399]The legitimate aims are viability, resilience and successful business performance [aim 1] and incentivising warehouse productivity [aim 3].

[400]To the extent that this reflected the market standard, payments of rest breaks would be an appropriate means of achieving aim 1. It is not apparent how the factors met aim 3. The break from a monotonous activity would be likely to incentivise performance because the worker would be refreshed, but we do not draw the inference that its payment materially influenced how productive the operatives were.

[401]It is clear that the payments to the retail staff were removed because of the practice of diverting of funds to meet the increase in the national minimum wage. The aim was solely about cost. It was not legitimate.

[402]Even if it were, we would not have found it proportionate. It was not reasonably necessary to restrict payment only to warehouse operatives to meet the aim. The defence under section 69(1)(b) is not established. Long Service Awards - term 17

[403]Throughout the relevant period, warehouse operatives were entitled to the following long service awards, paid by vouchers or gifts:(a) 5 years’ service: £25

(b) 10 years’ service: £50

(d) 20 years' service: £250

(e) 25 years' service: £350

(f) 30 years' service: £400

(g) 35 years' service: £450, increased to £500 from 1 February 2014

(h) 40 years' service: £500, increased to £600 from 1 February 2014.

[404]From the beginning of the relevant period, sales consultants were entitled to the following long service awards, paid by vouchers:(a) 15 years: £200

(b) 25 years: £350

(d) 40 years: £600 62. From January 2020 additional awards were also introduced, paid by vouchers: (a) 5 years: £15 (b) 10 years: £50 (c) 20 years: £150 (d) 30 years: £300

[405]The respondents relied upon market forces [factor 1], recruiting and difference. The second respondents had negotiated some different awards as part of an overall deal.

[406]We accept the evidence of Mrs MacIntyre that the differences arose from negotiation with USDAW with respect to agreeing an overall package of remuneration. No such collective negotiations occurred with retail staff, but this was not because of gender. We accept the factors relied upon. The defence under section 69(1)(a) is established.

[407]Proportionate disadvantage to women as a group and the lead claimants

[408]The legitimate aim is viability, resilience and successful business performance [aim 1]. We accept that payments of the respective awards were an appropriate means of meeting the business need, which in this context was to ensure that a negotiated agreement with the union would be acceptable to its members. No such requirement arose with the setting of pay for retail staff.

[409]Was that a proportionate means of achieving the aim? The sums were small and largely equalised in 2020 but there was no good reason the respondents could not have aligned these payments earlier or completely. The defence under section 69(1)(b) is not established. Unanimous decision

[410]Each member of the Tribunal was in agreement in respect of all the findings and conclusions.

Background

[1]The Judgment sent to the parties on 27 February 2025 is varied by consent by the addition of the following paragraph: 5A. Any lead claimant who worked for a shift of 11 hours shall be entitled to the 30 minute paid break to which their comparators would be entitled after working a shift of 10 hours.

[2]The Reasons sent to the parties on 27 February 2025 shall be varied as follows:2.1 Paragraph 59 shall be varied and substituted to read, “This particular anomaly does not arise other than on 10-hour shifts. Mrs Cherry was the only lead claimant to work more than 10-hour shifts. Applying the same approach to working time as expressed above, her entitlement to a paid 30- minute rest break would be triggered when she had worked an 11-hour shift. That is because in an 11- hour shift she would have completed 9 working hours at the point at which her comparator would have, in a 10 hour shift. That is because in such a shift she will also be entitled to 90 minutes of unpaid rest breaks. At 4-hour shifts there is no inconsistency, because the claimants had no break and so become entitled to the same paid break at 4 hours of working time. Although they became entitled to an additional 15- minute unpaid break at 4 hours and 45 minutes, (which would mean 4 hours and 30 minutes of working time) it is inappropriate to adjust the compensation for the lost break, because the threshold has already been crossed.

2.2 Paragraph 60 shall be varied and substituted to read, “We agree with the calculation of damages as being the payment for the rest break the claimants did not have, but for the 6-hour shift this would be a 10-minute rest break not a 20 minute one. That has particular impact on the schedule of loss for Ms Milton. In addition, the calculation of damages shall be payment of a 30 minute paid rest break when a sales consultant worked an 11-hour shift. That would impact upon the schedule of loss for Mrs Cherry.

Background

[1]By an application dated 10 March 2025 the representatives of the claimants requested a reconsideration of the Judgment with respect to entitlement to a paid rest break for shifts in excess of 10 hours.

[2]A hearing was arranged to consider the application. The parties have now agreed the proposed wording for reconsideration and variation of the Remedy Judgment and Reasons of the Tribunal. They have agreed that the source materials relied upon with respect to the claimant’s application for reconsideration regarding the 10-hour shifts are the witness statements of Helen Cherry and Alison Milton (paragraph 2 of their respective witness statements at pages 460 and 458 of the Remedy Hearing Bundle). These accord with entitlements set out in the Retail Handbooks at pages 1128 and 1180/1181 of the Remedy Hearing Bundle. In addition, the comparators’ rest break entitlements are recorded in the Agreed COT Table (page 1096 of the Remedy Hearing Bundle) and also in the Distribution Handbook at page 1344.

[3]The representatives of the respondents raised an issue about claimants whose records indicated they had taken longer breaks, which should be taken into account in the calculation of compensation. That is a separate issue and will be addressed in any further applications, which the Tribunal have listed for hearing on 31 March 2026. A separate order with directions for that hearing will be sent.

[4]An addition to paragraph 5 of the Judgement had been proposed by the respondents but it did not reflect the Tribunal’s decision. It was a mischaracterisation of paragraph 58 of the decision and its consequence.