Bayfield v Wunderman Thompson (UK) Ltd – A cautionary tale of discrimination claims by the so called “pale, stale male”

10 Nov 21 by Nina Robinson
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Today’s employment landscape is striving for progression and equality. Larger employers are required to report on their gender pay gap and the Equality and Human Rights Commission (EHRC) has published a strategy to reduce ethnicity and disability pay gaps also, indeed some employers are voluntarily publishing this information already.

There are initiatives and public statements regarding striving for more women on boards and greater representation of those from black and minority ethnic backgrounds (BME) or with disabilities. Employers are being actively encouraged to do more to tackle diversity and inclusion in the workplace through initiatives like unconscious bias training, equal opportunities, and inclusive recruitment processes, making diversity a clear objective at senior management level and throughout.

Employers are under a moral obligation to act but clearly also face pressure from the government, employees, clients, the media, and society to ‘do the right thing’ and take positive action to correct matters like underrepresentation by certain groups on boards or in senior roles, and inequality in recruitment or opportunities for progression.

The legal backdrop to this is the Equality Act 2010 which protects workers and job applicants from discrimination on the basis of their sex, race, disability, sexual orientation, and other protected characteristics. The case of Bayfield serves as a reminder that, although less common, claims under the Equality Act can be made by white, middle-aged, heterosexual, non-disabled, non-religious men, who are not generally regarded as disadvantaged in society and who would not be the typical poster children of the Equality Act.

Wunderman Thompson is an advertising agency whose gender pay gap was reported at a median of 44.7% in 2018, the highest across the advertising industry in that year. The narrative accompanying the gender pay gap report stated that the figures were ‘very disappointing and we are determined to improve them in the coming years’ and that ‘there is an acute problem of female representation in creative – a majority of senior jobs in that department are held by men, not just at [Wunderman] but also in our industry’.

Shortly afterwards a conference was held where they referred to their own reputation as being “Knightsbridge boys’ club”, that they would be recruiting new female talent, and that they had to ‘do what it takes to ensure these women remain in the business and rise to the top’. The conference announced that the agency wanted to obliterate their reputation of being full of “straight, white men”. The accompanying slide referred to white, British, privileged, straight, men with the text crossed out and accompanied by the statement, “One thing we all agree on is that the reputation [we] once earnt as being full of white, British, privileged, straight men creating traditional above the line advertising has to be obliterated”.

These statements and announcement caused complaints to be raised to the agency’s HR team and tension ran high. When, shortly afterwards, the agency selected two straight, white, British men for redundancy, both individuals having complained about the presentation, the men brought claims to the Employment Tribunal. The Tribunal upheld the claimants’ claims of direct sex discrimination, harassment related to sex, victimisation and unfair dismissal. We understand that Wunderman has stated an intention to appeal.

This relatively rare type of case does highlight a dilemma for employers. Change is needed and demanded from employers, yet the law protects individuals from being disadvantaged based on their individual characteristics. There are no quick fixes to a situation where diversity is not ingrained already, within employing organisations and society generally. Proactive measures need to be implemented to improve diversity and redress the balance of underrepresentation, at all levels within an organisation.

However, doing so within the confines of the law can be problematic – men cannot be selected for redundancy because they are not women, women cannot be recruited over men just because they are women (although positive action can be used at the point of recruitment to select a woman to correct underrepresentation, but only where she is equally qualified to the man she is being compared with). Further, there will be individuals who feel highly aggrieved by employer positive initiatives because they are not a category of individual who would generally be regarded as disadvantaged in society.

It is not right that any individual (potentially a white, British heterosexual male) who has worked to become genuinely the most suitable and qualified for a role or a promotion, should be placed at a disadvantage by being overlooked because of what they are.

Turning to gender pay gap reporting obligations, the most recent reporting suffered a delay in connection with the Covid-19 pandemic meaning that these reports relate to the situation in spring 2020. The most recent ONS report on the gender pay gap in the UK during 2021 reveals that the pandemic may be responsible for the pay gap widening among full time employees, although it is still smaller than pre-pandemic levels.

However, many social commentators fear the pandemic will set us back on the road to gender equality. Mothers have statistically been 47% more likely to lose their jobs than fathers during the pandemic, have been more likely to be furloughed and more likely to have suffered a cut to working hours. More women are continuing to work from home and many trying to work simultaneously while caring for children.

The “new normal” and emerging new hybrid working pattern could see further hindrance to progression for women who are more likely to make use of those provisions and consequently may find themselves overlooked or otherwise disadvantaged in terms of opportunities or experience.

As the Bayfield case shows, employers need to be very wary of adopting an overly aggressive strategy for tackling their gender pay gaps. It is certainly preferable to adopt positive measures to address gender equality such as devising methods of attracting and retaining diverse talent (for example by finding ways to negate the “motherhood penalty” faced by working women) rather than seeking to ‘obliterate’ the over-represented contingent.

 


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Post by Nina Robinson

Director, ESP Law Ltd

Nina is an accomplished employment solicitor with over 15 years’ post-qualified experience at leading UK law firms. Nina initially qualified as a corporate solicitor at Addleshaw Goddard in 2005 and since 2006 practised employment law exclusively, providing advice to employer customers at both DAC Beachcroft and Ward Hadaway Solicitors. Nina has experience of advising a varied portfolio of employer customers, including retail and restaurant groups, financial services and media industry customers on all employment issues.