Colin Leckey Tom Heys August 18 2021 Employer loses discrimination claim after trying to reduce gender pay gap Lewis Silkin | Employment & Immigration - United Kingdom Colin Leckey, Tom Heys Employment & Immigration IntroductionEmployment tribunal decisionDealing with gender pay gapsComment IntroductionAn employment tribunal decision involving the advertising agency Wunderman Thompson has highlighted the dangers of taking an overly aggressive approach to reducing gender pay gaps. It also provides a reminder that all discrimination is unlawful, even where the victims are from a historically privileged group.In 2018, Wunderman Thompson published details of a very high gender pay gap of 44.7%.(1) Shortly after this, its executive creative director gave a presentation at a conference also attended by the agency's CEO, which included a statement that the agency wanted to "obliterate" its reputation for being full of "straight white men". This was accompanied by a slide referring to "white, British, privileged, straight men", with the text crossed out. The commentary on the slide said that "one thing we all agree on is that the reputation [of being full of white British men] has to be obliterated".While the slide specifically referenced the reputation as being what Wunderman Thompson wanted to obliterate, not white males themselves, the content proved controversial and caused significant consternation in the agency's creative team. Complaints were raised with HR that the presentation had shown a bias against straight white men, and this was followed by a "push back" against that view. Misunderstandings apparently continued, with the employer accepting that "tensions were running high".Shortly afterwards, Wunderman Thompson decided to make two creative directors redundant. It selected two straight white British men for redundancy, both of whom had been among those who had complained about the "obliteration" presentation. They brought various claims to an employment tribunal.Employment tribunal decisionThe employment tribunal accepted that the desire to present a positive vision of diversity in practice and to reduce the gender pay gap was a "perfectly legitimate response" to high gender pay gap figures. Nonetheless, it decided the reason for the claimants' dismissals was their sex.(2)The employment tribunal found that the agency had viewed the senior creative team as male-dominated and believed that this was a significant reason for its gender pay gap figures being so poor, particularly in the creative department. A significant factor in the employer's mind at the time was the gender pay gap issue, and a reason for dismissing the claimants was that it would have an impact on that – in terms of both the figures and the prospect of opening senior positions that could be filled by women.The employment tribunal considered whether hypothetical senior female comparators would have been treated in the same way and decided they would have not. While there may have been a push back against their views, the reaction would not have been so furious, nor would there have been immediate consideration of disciplinary action or a decision within two or three days to pre-select them for redundancy. On the contrary, such senior female individuals would have been regarded as exactly the type of employees who would improve the gender pay gap figures.In support of its conclusion, the employment tribunal noted that in the days before the claimants' selection for redundancy the executive creative director had saved a senior female creative from redundancy, one reason for this being that she was a woman.The employment tribunal upheld the claims of unfair dismissal, sex discrimination and victimisation, while rejecting those of race, age and sexual orientation discrimination, and dismissal for being a whistle-blower. According to a recent tweet,(3) Wunderman Thompson will be appealing the decision.Dealing with gender pay gapsA stock line in many gender pay gap reports is that "there is no quick and easy way to reduce a gender pay gap". This case shows why. Men cannot be sacked because they are men, and women cannot be hired because they are women (apart from in rare situations where positive action(4) is permissible).The case also illustrates the dangers for employers of adopting an overly aggressive attitude to addressing their pay gap. Strategies to deal with gender pay gaps should always be best thought of in terms of positive steps. How, as an employer, can we attract and retain more diverse talent? How can we address some of the recruitment gaps that have stopped diverse candidates succeeding? How can we build a diverse workforce? Had Wunderman Thompson thought in this more positive manner, their "obliteration" presentation may never have been created and they would not have seen a redundancy exercise as a way of engineering a better outcome.CommentThe most effective, lawful way of reducing gender pay gaps is not by arranging for one person to succeed at the expense of another, demonising a group of people, or trying to engineer a particular demographic within the workforce. Rather, it is about taking more subtle steps to level the playing field by ensuring opportunities are genuinely available to all. With barriers removed and proper support in place, diversity and a reduced gender pay gap is much more likely to be achieved.Wunderman Thompson said that it wanted to obliterate its reputation as being full of straight white men. The media coverage received by this decision means that it may have done exactly that (although its most recent gender pay gap figures(5) still show a fairly large gap in favour of men). Now that an employment tribunal has found that it has a bias against individuals of one gender, however, its reputation as a diverse employer is likely to have been damaged.For further information on this topic please contact Colin Leckey or Tom Heys at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.Endnotes(1) Further information is available here.(2) Further information is available here.(3) Further information is available here.(4) Further information is available here.(5) Further information is available here.