By Lydia Cammiade,

Associate,

Ince,Bristol

In the case of Mr C. Bayfield and Mr C. Jenner v Wunderman Thompson (UK) Limited and Others, an employer was found to have discriminated against two employees on the grounds of sex when selecting them for redundancy in an attempt to improve their gender pay gap figures.

What were the facts of the case?

Both claimants were both white British heterosexual men in their fifties, and employed by an advertising agency as Creative Directors.

In 2018, the company announced a median gender pay gap of 44.7%. The company’s gender pay gap report described the figures as “very disappointing”. In response, another Creative Director gave a presentation in the business that included a controversial slide stating:

• White, British, Privileged, Straight, Men
• Creating traditional above the line advertising

“One thing we all agree on is that the reputation JWR once earnt as being full of “White, British, Privileged” etc.… has to be obliterated.”

Both claimants made complaints to their employer about the content of this slide in particular. Subsequently, both Claimants were dismissed, purportedly for reason of redundancy.

What was the outcome of the Employment Tribunal?

The Employment Tribunal (ET) concluded that the Claimants dismissal was because of their sex, and that the employer: “viewed the senior creative team as male-dominated, and a significant reason for the gender pay gap figures being so poor, particularly in the Creative Department… a significant factor in the respondents’ minds at this time was the gender pay gap issue, and that a reason for dismissing the claimants was that there would be an impact, both in terms of the figures, and by the prospect of having senior positions opening which could be filled by women.”

The ET also concluded that a hypothetical woman of the same age and career profile as the claimants would not have been treated the same. The Claimants’ claims for race, age and sexual orientation discrimination, and dismissal for being a whistle-blower were dismissed.

What are the requirements for gender pay gap reporting? 

Employers with a headcount of over 250 must report the following data on employees each year:

• Percentage of men and women in each hourly pay quarter;
• Mean (average) gender pay gap using hourly pay;
• Median gender pay gap using hourly pay;
• Percentage of men and women receiving bonus pay;
• Mean (average) gender pay gap using bonus pay; and
• Median gender pay gap using bonus pay.

An employer must publish their gender pay gap report in a prominent place on their website and keep the information available online for at least three years. A supporting narrative can also be included to provide an explanation and information on how the business is trying to address a gender pay gap.

How can employers address their gender pay gap figures?

A gender pay gap does not mean an employer has acted in a way that is discriminatory as it shows the average pay difference between men and women across a business regardless of position. However, a large gender pay gap can cause reputational damage. Taking positive steps to encourage the recruitment and progression of women is the better approach employers can take to address poor gender pay gap figures and avoid the risk of an Employment Tribunal claim.

The Government Equalities Office has undertaken research and produced examples of evidence-based actions employers can take. Positive action could include:

• Including multiple women in shortlists for recruitment and promotion;
• Using skills-based assessment tasks in recruitment;
• Using structured interviews for recruitment and promotion;
• Encouraging salary negotiation by showing salary ranges;
• Introducing transparency to promotion, pay and reward processes; and
• Appointing diversity managers and/or diversity task forces.

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For more information and advice on gender pay gap reporting, get in touch with David Baynton, Partner & Head of Employment at [email protected], or Lydia Cammiade, Associate at [email protected].

The information above is not and should not be taken to be legal advice. You should not take action or omit to take action based on this information. If you require any help on the issues raised above, please get in touch using the details above.