Sex discrimination against straight white males

Axed for being a white, straight man to close a gender pay gap – a sex discrimination case that was step too far.

A top London advertising firm (J Walter Thompson, JWT) has been criticised by the employment tribunal for the way it handled the purported redundancy of two male, white British creative directors.

In 2018, a damning report revealed a shameful median gender pay gap of 44.7% within JWT. In an urgent attempt tackle the diversity issues, a female creative director was appointed and a ‘Crisis’ meeting was convened. It was reported that the creative director, Ms Wallace, introduced herself as a gay woman and vowed to ‘obliterate JWT’s reputation of being white, British and privileged men’.

Mr Bayfield and Mr Jenner were two senior employees of JWT, who fell squarely within the demographic described, and so they raised concerns and met with the company’s director of HR to discuss job security. Within days, Mr Bayfield and Mr Jenner and 3 other white male employees were made redundant. It is worth acknowledging, especially in the light of some media reports, that there is nothing to suggest that Ms Wallace herself played any role in the decision to dismiss any of these men.

The question before the tribunal was whether the redundancy exercise had been conducted fairly and was free from discrimination. Mr Bayfield and Mr Jenner’s were successful in their claim against JWT for unfair dismissal because they were able to demonstrate that they had been selected for redundancy as a result of their sex.  One employment tribunal judge commented that the gender of the employees was on the mind of the company when reaching the decision to dismiss them, rather than their performance or some other objective, non-discriminatory criteria. The tribunal also noted that JWT believed that dismissal of these men would immediately assist in their efforts to remedy their gender pay gap issues. Such treatment amounted to victimisation, sex discrimination and unfair dismissal. JWT reached an out of court settlement with the three other dismissed employees.

The fundamental question asked here is whether a woman in a similar position have been treated in the same manner? The simple answer is ‘no’. The approach to the redundancies was poorly managed and the response to dismiss Mr Bayfield and Mr Jenner was combative and unfair.

However, this case should not be seen as an endorsement of a large gender pay gap. The tribunal was keen to point out that the pay gap was itself an issue of equality which JWT had to address. The Equality Act 2010 is designed, amongst other things, to protect employees against being discriminated against on the basis of their sex. This includes protection for those that get paid less for completing the same job as others of a different gender as well as from being unfairly dismissed in order to rectify a gender pay gap. Two wrongs do not make a right.

How should employers react?

JWT’s failing was to rush into an unfair and ultimately unjustifiable redundancy process. We can help you avoid that same mistake. Our dedicated team of employment lawyers understand how to be commercial in the application of the Equalities Act. If you are an employer and you considering tackling sensitive issues in the workplace, such as closing a gender pay gap, conducting a redundancy exercise, or are even being faced with any type of discrimination claim, you should always take cautious approach and seek the advice from a professional.

Insights for employees

In the last year, the number of sex discrimination claims brought in the Employment Tribunal has reduced significantly. This does not mean that instances of sex discrimination cases have suddenly diminished. Employees are often frightened by the legal bill and knowing that their employer will likely have deeper pockets.

However, many people have either forgotten or are completely unaware that they might have a home insurance policy that would cover the legal expense incurred in pursuing a claim in the employment tribunal. It is important to always check your insurance for legal expenses cover, particularly when you have a case with a strong likelihood of success.

Our dedicated team can provide a suitable costs analysis and strategy. If you need urgent advice please do call us.

Alex Kennedy

I know that when the noise dies down there is a solution to be found. I set about that task as quickly as possible.

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