Have Britain’s largest employers been breaking sex discrimination laws for decades? A landmark Employment Tribunal ruling against highstreet giant Next is the latest in a line of judgements that suggests they have.  

This follows a similar judgement against Asda, and the bankruptcy of Birmingham City Council following another prominent case. Others have already written on the underlying issues of the judgement, and the likely implications for the future of a variety of job types in Britain. Taken together with the previous rulings, the latest judgement will be completely transformative in the way that pay will be determined for a whole swathe of low- or semi-skilled jobs. Like the others, it also seems to have been based on a fairly subjective assessment of how certain roles were “equal” to each other in the view of the judges.  

The judges have identified patterns in different types of roles within Next, and then examined average total pay across different categories of job, just as previous judges did with Asda and Birmingham City Council. They spotted that job types that were dominated by male employees were generally better paid, on average and pro rata, than job types dominated by women.  

At Next, roles dominated by men were typically warehouse jobs, while retail staff in-store or on checkouts were predominantly female. At Birmingham City Council, roles such as bin men, road workers and grave diggers were also found to have been routinely better remunerated than employees such as care workers, kitchen staff and cleaners. Naturally, the former jobs were predominantly made up of male employees, whereas the latter skewed heavily toward women. 

The judges have ruled that this is straightforward sex discrimination; that roles traditionally dominated by men are routinely being paid better than roles traditionally seen as being for women for no good reason. Though it does rather beg the question of why certain jobs are preferred by women despite being consistently less well-remunerated.  

The rulings did not consider whether some inherent difference in the nature of the work or the conditions could have accounted for this seemingly organic division down sex lines. And so neither did they examine whether such differences might have impacted on the supposed “equality” of the jobs. Certainly, the rulings do not allege that women were being institutionally blocked from the higher-paying “male” jobs; they just seem to accept as a fact of nature that some jobs are dominated by men and others by women. 

It strikes me as very unlikely that the judges who heard these cases, and their colleagues and friends in the law or in other professions, would accept this kind of gender division so impassively if it were seen in the sort of jobs that they might do, or in the kind of jobs that they might aspire for their own children to do. They would regard it as evidence of discrimination in itself, and want something done about it; hands would be duly wrung. Merely insisting on pay parity between careers that women went into to make them equal with those that men went into would be wholly insufficient.

Perhaps the fact that road-workers and sewage workers are mainly men, whereas cleaners and checkout operatives are mainly women can be accounted for by social conditioning alone? Perhaps it’s because men are usually less encumbered by the responsibilities as primary caregivers to children that they are able to take irregular or antisocial shift work, or jobs that take them away from home for extended periods, such as long distance lorry driving? 

But the judges in these key decisions don’t seem to have been terribly interested in any of this at all. It’s very difficult to see how an objective judgement on the equality of value between different categories of low- or semi-skilled employment could possibly be made without an appreciation of the varying pressures and requirements of each job in turn.  Instead, the judges seem to have been making a far more subjective judgement based on the relative social status of the roles, rather than what people were actually being paid to do. And this shouldn’t come as a surprise; that is in fact how members of the social class that includes today’s judges and lawyers think about the value of a job. 

What we are witnessing here is the end result of the transformation of the British class system over the last forty years, driven by the decline of traditional manual occupations, and the huge expansion of the university system and the professional service sector. To understand why this matters, we must first look at how members of the professional classes (and thus our tribunal judges, and counsell) conceive of the nature of work and employment, based on their own experiences in the relatively competitive, relatively meritocratic world of the modern British professional. 

These are people who worked hard at school to get themselves the grades they needed to advance through education; O-levels or GCSEs determined whether they got to do A-levels; A-levels determined whether they could get into university and, if so, which one and how prestigious a course they could enrol on. After this often came postgraduate study and professional qualifications, which then determined which firm or institution they could join for their training. Each qualification was a ticket to the next level. From the age of about 16 onwards, they were locked into competition with their peers from across the country (although, unlike the lowest and the very highest paid people, they would generally be shielded from global competition). 

During the first decade or so of formal employment, this competition renders formal job descriptions and contracts at most semi-relevant. The need to show willing means that extra hours worked are often the most obvious way that a young professional can signal themselves as being worthy of advancement. In that world, taking on additional responsibilities above one’s pay-grade is a privilege, not a burden. In my own experience at that stage of my career, I remember my landlady asking me, after I’d come home from my junior financial services job at 10pm for the third time that week, whether I was being paid sufficient overtime for all this or — hilariously to me at the time — whether I’d spoken to my union rep about the situation. I may as well have inhabited another solar system from her, rather than her spare room in Bromley.  

Once they reach a certain seniority, usually in their early to mid-thirties, the relentless competition often relaxes a little for this type of person, as dear-bought knowledge and experience translates into specialism and steadily increasing seniority. They regard this as being their rightful and just reward for many years of hard study and diligence since their early teens, and for the nights and weekends spent huddled over textbooks in the run up to the annual exam season.

The effect of the expansion of the university system means that for an awful lot of this group, they end up having very little to do with people who have trod different paths in life; people with jobs rather than careers. Their colleagues, friends and romantic partners all made a similar way through the world. In earlier generations, people with university educations remained interwoven as a relatively small part of a broader social fabric; either as part of the old ruling classes which retained their familial positions in rural life, or as part of the provincial middle classes; the village doctor or small town solicitor.  

Up until the 1970s, graduates still largely mixed with and married people who hadn’t gone to university, simply because there weren’t enough of them not to. However, now that around half of each generation goes on to university, graduates today exist as a distinct social class, and it is quite possible for members of this new class not really to know people outside this group from the age of 18 onward, if at all. 

The new professional class is paid on the basis of what they’ve done to get in through the door as much as for what they do

And this is how we end up with a group of judges taking a look at checkout cashiers, and then at warehouse workers or bin men, and seeing only an amorphous blob of “those people” who weren’t at school any more after the age of 15 or 16. The new professional class is paid on the basis of what they’ve done to get in through the door as much as for what they do once they’re there — so why would it occur to them to look at what those people actually did in those menial jobs, or to understand why a willingness or ability to bear certain types of task might attract a premium in terms of pay? 

It’s ironic that this great social cleft has emerged at a time when people in the judiciary or at the Bar are more likely than ever before to have come from relatively humble origins. But if anything, this process seems to have amplified rather than muted social divisions. The lines between upper and lower middle class may have been blurred by shared experience at university and in the corporate workplace; but a great gulf has now emerged between those who draw a salary, and those who are paid by the hour.   

Our judges would have had no problem at all looking at the work of a skilled electrician or a master bricklayer, and understanding why a day of their time commands a great premium in the market; like the professional class, their value has accrued over years of lengthy training. Unlike somebody who is paid to load foul-smelling refuse onto a wagon, or who drags themselves away from their home at 2AM to graft in a cold warehouse, a craftsman may be paid for their skill, rather than for just their sweat and endurance.   

However, the ability to stand and work a jackhammer against hard tarmac is something that an employer is nowadays willing to pay a premium for (so long as it remains legal to do so), for exactly the same reason that a specialist knowledge of employment law is also valuable; because it is relatively scarce. And in the labourer’s case, that scarcity is because there are far, far easier jobs he (or she — there’s nothing stopping her) could be doing whilst still earning the national minimum wage. 

If their rulings are implemented (and I can’t see how that is now avoided) these three tribunal decisions will wipe out most of the incentive for people to do jobs that are arduous, unpleasant, antisocial or otherwise undesirable. Since the decisions were not made with any reference to the market pressures for different types of worker, there are no recommendations for how employers should navigate the various trade-offs that will now need to be made. Given its ideological predispositions, it seems very unlikely that our new government is likely to wade in on the matter either.  

In the short term, the result is likely to be a slew of prominent corporate and institutional failures along the lines of the Birmingham bankruptcy, followed by a redoubling of the shift toward outsourcing, temporary agency work and low-skilled immigration to fill the gap in the least desirable categories of work.  

In the longer term, we are going to find ourselves as a country where different types of people have completely alien conceptions of what a job is for and how it’s paid. On the one hand, we will have the professional classes who enjoy status, salary and prestige on the basis of academic credentials and cognitive specialisation. And on the other hand, we will have a mass of men and women competing for temporary, minimum wage positions via nameless agencies, competing not with their peers based on cognitive ability, but against people recruited from the poorest places on the planet on the basis of who will accept the least generous conditions.