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The facts:
The two employees worked as creative directors for the advertising agency, Wunderman Thompson. They were both straight white men. In 2018 Wunderman Thompson published a very high gender pay gap of 44.7%.
Shortly after this, Wunderman Thompson’s creative director presented a vision at a conference to the advertising agency’s staff which was 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’.
Following the presentation, complaints were raised with HR that the presentation had shown a bias against straight white men. This caused internal friction between staff and tensions ran high.
Wunderman Thompson subsequently selected the two employees redundant. Both had been among those who had complained about the ‘obliteration’ presentation.
Both employees brought various employment tribunal (Tribunal) claims, including for unfair dismissal, sex discrimination and victimisation. The employees argued that the redundancy selection was an act of sex discrimination with the aim of removing higher paid men to address the gender pay gap.
Tribunal decision
The Tribunal upheld the employees’ claims of unfair dismissal, sex discrimination and victimisation.
The Tribunal held that while it was acceptable and reasonable for Wunderman Thompson to take action to build a positive reputation and reduce the gender pay gap, the reason for the dismissal of the two employees was their sex.
A significant factor in Wunderman Thompson’s mind at the time of the dismissals was the gender pay gap issue, and the impact that this would have – both in terms of the figures and also the prospect of opening senior positions that could be filled by women.
The Tribunal considered a scenario with hypothetical senior female comparators and decided they would not have been treated in the same way. Indeed, the Tribunal noted that in the days leading up to the employees’ selection for redundancy, a senior female creative had been ‘saved’ from redundancy for being female, among other grounds.
Wunderman Thompson is appealing the Tribunal’s decision to the employment appeal tribunal.
The implications:
This decision highlights the dangers for employers 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 other words, 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 is permissible).
If there is a gender pay gap in your organisation, there is no doubt that you should put in place an action plan to address this. However, be careful that your action plan does not go so far as to discriminate against one particular sex. Rather, it is best to focus on more positive steps. For example, consider how you could attract and retain more diverse talent or take steps to address some of the recruitment gaps that have stopped diverse candidates succeeding. It is about taking more subtle steps to reduce the pay gap by ensuring opportunities are genuinely available to all and putting in proper support for diversity initiatives
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