Mr Bayfield and Mr Jenner were creative directors at Wunderman Thompson (UK) Ltd. After its gender pay gap report for 2017 was published, showing gender pay gap figures that indicated “an acute problem of female representation” with most senior creative jobs held by men, the agency held a conference to address the lack of diversity and to present a positive vision for the future. During the presentation, it was said that the agency wanted to “obliterate” its reputation that it was full of “white, British, privileged, straight, men”. The creative department staff were very worried about this comment and Mr Bayfield and Mr Jenner raised their concerns with management. Although the agency told them there had been a misunderstanding, they were not reassured and they had some difficult discussions with the agency about their concerns. During this period, the agency was conducting a redundancy exercise and Mr Bayfield and Mr Jenner were subsequently dismissed on the grounds of redundancy.
Although the tribunal noted that falling revenue was a significant issue that potentially affected all of the creative team, and acknowledged that wanting to improve diversity within the agency was a legitimate response to the poor gender pay gap report, it found that the scoring of the two creative directors in the redundancy selection process was “a sham designed to ensure the predetermined decision to dismiss” them. The tribunal concluded that Mr Bayfield and Mr Jenner had been dismissed because of their sex. It found that a significant factor in the agency’s mind was the gender pay gap issue and dismissing the male directors would have an impact on those figures as well as opening up senior positions that could be filled by women. In the tribunal’s view, a hypothetical senior female comparator would not have been treated in the same way as Mr Bayfield and Mr Jenner. It noted that in the days before they were selected for redundancy, a senior female creative was not made redundant and one reason for this was that she was a woman.
Key Action Points for Human Resources and In-house Counsel
This case serves as a reminder that discrimination in any form is unlawful.
In addition to using “general positive action” perfectly lawfully to assist under-represented groups overcome disadvantages in the workplace (such as offering IT training to older employees or offering mentoring or targeted networking opportunities to ethnic minority employees), there are a number of diversity initiatives that employers can use to ensure that their recruitment and promotion processes are free from bias., This can include providing support to improve diversity and inclusion throughout the workforce (such as using diverse shortlists for vacant roles, balanced interview panels and mentoring schemes).