Gender pay gap strategy backfires
Whilst aiming to eliminate the gender pay gap within an organisation is entirely laudable, the strategies and messaging used by employers in pursuit of that aim need to be carefully thought through and inclusive and where employees raise concerns about the impact of the strategy, the response should be empathy, consultation and engagement rather than anger and victimisation.
Bayfield & Jenner v Wunderman Thompson (UK) Limited (formerly J Walter Thompson) is slightly unusual in that the claimants were both males who complained that they had been subjected to sex discrimination in being dismissed purportedly for redundancy.
B and J were Creative Directors at JWT. They were both in their 50s and white males. In April 2018 JWT revealed a gender pay gap of 44.7% highlighting a serious lack of female representation. In May, the business organised a diversity conference at which it was said that the business had a reputation as a “Knightsbridge boys’ club” where “white, straight men create above-the-line advertising”. The conference host also said, “One thing we all agree on is that the reputation JWT once earned – as being full of white, British, privileged [men] – has to be obliterated.”
B and J raised concerns about the safety of their jobs including an email in which B said, “I found out recently JWT did a talk off site where it vowed to obliterate white, middle-class straight people from its creative department. There are a lot of very worried people down here.” B and J were called to a meeting with the HR Director, (H) and their manager (P). The tribunal described the meeting as follows:- “Both [H] and [P] were angry from the outset of the meeting, and it continued in this vein. Voices were raised by P and H, and B and J were forced to defend their position. Their explanations were not at the time accepted and their points of view were angrily dismissed. [There was a] failure to accept that they had any valid concerns about the presentation … their views were regarded as unacceptable.” The tribunal found that H felt that B and J’s comments amounted to gross misconduct. Within 2 days JWT had decided that both men should be dismissed and went through a redundancy process to effect their dismissals.
The tribunal found that the dismissals were discriminatory on grounds of sex and also acts of victimisation “there was a consensus …. that B and J had overstepped the mark ….that there was anger at what [the company] considered a challenge to their plans on the gender pay gap issue.” It went on, “We considered that this factor, their sex, was on the mind of [the company] when determining to dismiss them, an equal factor with that of the anger at their complaints” and, “This would immediately assist the gender pay gap issue within the creative team, it would rid the team of two creative directors who were, because of their sex, seen as resistant to change; also, female creative directors were exactly what [the company] were seeking.”
The tribunal will determine compensation at a later date.
There are multiple lessons to be learned from this case. Firstly, one has to question how any diversity strategy (however well intentioned) is going to be successful if it demonises one group (whether intentionally or not) simply because of their gender and race.
Secondly, if an employer was going to say that its reputation as an employer of white, British men needed to be ‘obliterated’, it’s perhaps not surprising that the white, British men that it already employed might perceive that they were in line to be ‘obliterated’ in the cause of narrowing the gender pay gap.
Thirdly, when individuals raise concerns, the response should not be anger that they have the temerity to question the strategy but education and dialogue.
Finally, as is so often the case in employment tribunal cases, it’s not what you do that counts; it’s what you can prove and it didn’t help JWT’s case that the only individual scoring sheets from the redundancy process that were produced were those relating to B and J, which lead the tribunal inexorably to the conclusion that there were no others because no-one else had been scored and the decision to dismiss the claimants had been made in advance of any scoring process.
Ironically, JWT’s actions in dismissing the claimants may have ultimately had the effect of improving its gender pay gap but at what financial and reputational cost?
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