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.

The Employment Tribunal criticised the way J Walter Thompson (JWT), a leading London advertising agency, handled the purported redundancy of two white British male creative directors.

In 2018, a damning report revealed a median gender pay gap of 44.7% at JWT. In response, 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 JWT employees who fell within the demographic described. They raised concerns and met with the company’s HR director to discuss their job security. Within days, they and three other white male employees were selected for redundancy. It is important to note that, despite some media reports, the Tribunal did not find that Ms Wallace had played a role in the decision to dismiss these employees.

The Tribunal considered whether the redundancy process was fair and whether the dismissals were discriminatory. Mr Bayfield and Mr Jenner succeeded in claims of unfair dismissal, direct sex discrimination and victimisation. The Tribunal found that their sex was a significant factor in the decision to dismiss them, alongside the decision-makers’ anger at their complaints. It also found that JWT believed their dismissal would immediately help address its gender pay gap. The Tribunal concluded that the redundancy process was used to justify a decision that had already been made. JWT reached an out-of-court settlement with the three other dismissed employees.

The central question was whether employees of a different sex would have been treated in the same way. The Tribunal concluded that a hypothetical team of female creative directors would not have been treated in the same manner during the relevant discussions and assessments.

However, this case should not be seen as an endorsement of a significant gender pay gap. The Tribunal recognised that JWT’s pay gap was an equality issue that required attention. The Equality Act 2010 protects employees against discrimination because of their sex. Employers may take steps to address workplace inequality, but dismissing employees because they are men is not a lawful way to close a gender pay gap. Two wrongs do not make a right.

How should employers react?

JWT’s failure was to pursue a redundancy process that the Tribunal found was used to justify a discriminatory decision. We help employers manage sensitive workplace issues lawfully, including redundancy exercises and initiatives to address gender pay gaps. Our dedicated employment team provides commercially focused legal support to help employers assess risks, follow appropriate procedures and reduce the likelihood of discrimination claims. If you are considering redundancies, addressing workplace inequality or responding to a discrimination complaint, seek legal advice before taking action.

Insights for employees

The number of sex discrimination claims brought before an Employment Tribunal does not necessarily reflect the true prevalence of discrimination. Employees may be deterred from pursuing claims by the potential cost of legal proceedings and concerns about their employer’s greater financial resources.

However, some home insurance policies include legal expenses cover that may contribute towards the cost of bringing an Employment Tribunal claim. Employees should check the terms of their policies to establish whether cover is available and what conditions apply.

Our team can help employees assess the merits of a potential claim, consider the available options and develop an appropriate strategy. If you need urgent advice, please contact us.