Dismissal Of Senior Male Employees Following Publication Of High Gender Pay Gap Figures Was Sex Discrimination

• Published date: 30 August 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Unfair/ Wrongful Dismissal, Redundancy/Layoff
• Law Firm: Brahams Dutt Badrick French LLP
• Author: Ms Amanda Steadman

An Employment Tribunal has recently decided that the dismissal of two senior male employees amounted to sex discrimination, where the dismissals had followed the announcement of the employer's gender pay gap figures and a radical new approach to diversity within the business.

What does the law say?

The Equality Act 2010 protects workers from discrimination on the grounds of certain protected characteristics, such as sex, race and disability. Although it is typically workers from minority groups who assert their legal rights in this respect, the protections are available to all workers.

The gender pay gap reporting rules came into force in 2017, requiring employers with 250 or more employees to publish gender pay information on an annual basis from 4 April 2018. Analysis of reports published in 2018 and 2019 reveal that men tend to occupy the most senior and highly paid roles, indicating that the gender pay gap can be understood, primarily, as a gender representation gap. Although there is no legal obligation on employers to take steps to close their gender pay gap, many choose to do so in order to advance their reputation as an "employer of choice".

What happened in this case?

Mr Bayfield and Mr Jenner (the Claimants) are both advertising professionals who had worked as a team for many years. Both are white British, heterosexual, middle aged men. They began working for J Walter Thompson (JWT) on 4 January 2016. Their work was highly regarded, and they were both promoted to the role of Creative Director in July 2017. Yet by the end of that year, cracks had begun to appear in the relationship. Their manager, Lucas Peon, expressed concerns that they were overly attached to "traditional" forms of media advertising and urged them to expand their digital output. Feedback obtained from colleagues echoed those concerns and highlighted that the pair lacked enthusiasm and could be indecisive.

In April 2018, JWT published its gender pay gap report for 2017, revealing a median gender pay gap of 44.7%, the highest figure across the advertising industry in that year. The report noted 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 [JWT] but also in our industry."

The following month, Mr Peon and another of JWT's Creative Directors, Jo Wallace, gave a presentation at the "Creative Equals Conference". The presentation was intended to explain how JWT planned to address their...