Beware quick fixes or risk sex discrimination claims

This article first appeared in Reward Strategy Magazine on 18 November 2021.

Background

Mr Bayfield and Mr Jenner were employed as Creative Directors by J Walter Thompson Group Limited (JWT), an advertising agency (subsequently taken over by Wunderman Thompson (UK) Limited). JWT’s financial performance had been declining throughout 2017 and 2018. In April 2018, it published its gender pay gap figures for 2017, showing a mean gap of 38.8% and a median gap of 44.7%.

On 16 May 2018, senior JWT staff made a presentation at a “Creative Equals Conference”, in which they set out JWT’s desire and plans to address the gender pay gap and tackle JWT’s reputation at a “Knightsbridge boys’ club”. The Tribunal said that much of the presentation was “uncontroversial, if also hard-hitting”. However, one slide in particular raised concerns. The slide read “WHITE, BRITISH, PRIVILEGED, STRAIGHT, MEN CREATING TRADITIONAL ABOVE THE LINE ADVERTISING”, with a line through it. The commentary stated that this reputation had to be “obliterated”. Mr Bayfield was not present, but emailed Ms Bruges in relation to this slide stating that there were “a lot of very worried people” in the Creative Department. This email was forwarded to the Head of HR, Ms Hoyle. Mr Jenner emailed Ms Hoyle expressing similar concerns on 21 May 2018. A meeting followed with the Claimants, Ms Hoyle and Mr Peon (the Claimants’ line manager), which all parties accepted was “difficult”.

Around this time, JWT commenced a redundancy process. Whilst redundancies had been considered previously, none had been made in the Creative Department to date and in an earlier redundancy process in 2017 Mr Jenney and Mr Bayfield had scored highly. Mr Jenner and Mr Bayfield were included in the redundancy pool alongside Senior Creatives.

The Claimants were informed that they had been provisionally selected in June 2018 and a formal consultation commenced. In the course of this consultation, the Claimants raised a grievance alleging discrimination and victimisation. Neither the joint grievance nor their appeal against it were upheld. The Claimants were given notice of termination on 24 August 2018. They appealed against this, citing discrimination, but the appeal was not upheld.

Mr Bayfield and Mr Jenner brought claims for direct sex, age, sexual orientation and race discrimination, victimisation, harassment, ordinary unfair dismissal and automatic unfair dismissal on the grounds of having made protected disclosures. They were successful in their claims of sex discrimination and victimisation in relation to their dismissal, and partially successful in claims of sex discrimination, victimisation and harassment in connection with detriments during their employment.

JWT advised the Guardian that it would be appealing the decision; it is not yet clear whether this has been done, and the basis and status of any appeal if so.

Comment

This case is a salutary reminder that, for the most part, the protection of the Equality Act 2010 is even-handed and applies equally to those in “privileged” groups: the law provides that nobody should be treated less favourably because of their sex, not simply that no woman should be disadvantaged because of her sex. Whilst there is provision for positive action in the Equality Act, it is only available in very narrow circumstances – rightly or wrongly, the general approach is to require employers to disregard protected characteristics (certain protections for disabled persons, such as the requirement to make reasonable adjustments, and maternity/pregnancy being an exception to this). Similarly, the circumstances in which an employer can rely on an occupational requirement as a defence to direct discrimination are very limited.

The Tribunal accepted the legitimacy of JWT’s stated initiatives for addressing the gender pay gap, looking at talent and acquisition, progress and development of female employees and culture and behaviour. However, some of the comments made when discussing the issue with employees, the hostility shown to the Claimants when they raised concerns, and the procedural and substantive problems with the way their grievances and redundancy process were handled, led the Tribunal to uphold the Claimant’s sex-related claims.

Employers need to think carefully about the reasons for their gender pay gap (or any other identified inequality in their business), the measures needed to address those (in the short, medium and long-term) and, importantly, how they communicate their plans to employees in a way that maximises engagement with the problem and the proposed solutions, rather than alienating existing staff and creating conflict, as in this case.