All Hail, the pale, stale, male

The recent JWT case has received a huge amount of publicity. Below, the Briefing looks at the likely effect of such discrimination claims from men.

Every employment lawyer knows that the Equality Act 2010 protects workers from discrimination on the basis of sex, race and so on. In practice, it is usually women or workers from minority groups who invoke their legal rights in this respect, but the protections apply to all groups (with the exception of people without disabilities and unmarried workers).

That said, claims on behalf of heterosexual, non-disabled, non-religious, ‘pale, stale males’ who, as a group, tend not to be regarded as disadvantaged in society, were traditionally rare and often seen as a sign of desperation to bust through the compensation cap on unfair dismissal. However, the gender pay gap reporting rules and the ‘women on boards’ initiative have triggered some understandable reactions from senior management seeking to address the disparity between gender and pay and the lack of diversity at the top of organisations. These in turn have resulted in a series of more compelling discrimination claims brought by so-called ‘pale, stale males’, these unlikely poster children for the Equality Act 2010.

As is so often the case, many of these claims are settled confidentially. However, now, those employers inclined to take a more bullish stance (and their lawyers) might feel chastened by the JWT case. Should they be? And should the law be changed?

The JWT case

Mr Bayfield and Mr Jenner were white British, heterosexual, middle-aged creative directors at J Walter Thompson (JWT). 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 narrative accompanying the report noted that these numbers 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 [JWT] but also in our industry’. It went on to set out initiatives to address the underrepresentation of women.

A month later, Mr Peon, the claimants’ manager, and another of JWT’s Creative Directors, Jo Wallace, gave a presentation at the Creative Equals Conference. JWT’s HR Director, Emma Hoyle, was present, as was the CEO. The presentation referred to JWT’s reputation as a ‘Knightsbridge boys’ club’, that it was recruiting new female talent, and that it had to ‘do what it takes to ensure these women remain in the business and rise to the top’.

The presentation contained a slide with the following wording scored out with a black line: ‘WHITE, BRITISH, PRIVILEGED, STRAIGHT, MEN CREATING TRADITIONAL ABOVE THE LINE ADVERTISING.‘ Speaking to the slide, Ms Wallace said: ‘One thing we all agree on is that the reputation JWT once earnt as being full of white, British, privileged, straight men creating traditional above the line advertising has to be obliterated.‘

On 18 and 21 May 2018, the claimants raised concerns by email about the wording used in the presentation, highlighting that there were a lot of ‘worried people’ in the Creative Department and that clarification was needed. The pair were called to a meeting with Mr Peon and Ms Hoyle, which descended into a heated discussion about what the presentation meant.

At the same time, JWT decided to embark on a redundancy exercise within the Creative Department. A redundancy pool was identified, which included the claimants and three senior creatives who had also complained about the conference presentation. Another female senior creative was initially included in the pool but later removed by Mr Peon because she was a woman. In what Mr Peon described as an ‘unfortunate correlation’, the claimants and three senior creatives were all selected for redundancy.

The claimants were made redundant on 23 November 2018. In an 80-page judgment, the tribunal upheld the claimants’ claims of direct sex discrimination, harassment related to sex, victimisation and unfair dismissal. JWT, now known as Wunderman Thompson (UK) Ltd has said it intends to appeal.

What effect will the judgment have?

Employers with large gender pay gaps and non-diverse boards have a dilemma on their hands. Society and businesses are demanding change, but the law does not generally permit decisions experienced at the individual level to be tainted by direct discrimination, including against ‘pale, stale, males’. Creative thinking and a recognition that there are no quick fixes is needed to square the circle. The narratives and actions plans published by larger organisations to date reveal that many are embracing positive-action-style diversity measures:

• Rolls-Royce?reported that targeted outreach had helped it increase the proportion of female apprentices and graduates. That seems unimpeachable.
• PwC?banned all-male shortlists for roles in the UK in an attempt to increase the number of women in senior roles. It also announced plans to ban all-male interview panels and set a 50:50 gender target across all roles. This could be more dangerous. There will presumably be male candidates who are not shortlisted who would have been shortlisted if they were women and that is direct discrimination. Excluding a man from an interview panel likewise is likely to be a detriment contrary to the Equality Act.
• TSB?announced in 2018 that it would use a 50:50 gender shortlist for candidates to replace CEO, Paul Pester. It also confirmed that gender-balanced shortlisting had already been used for external recruitment at senior levels for two years and this was to be extended to all roles within the business. In 2019, TSB announced that it would dock the bonuses of senior executives for failing to achieve its gender targets. Its target was to raise the proportion of women in senior roles to between 45 and 55% by 2020. Despite the high profile appointment of chief executive Debbie Crosbie, the figure stood at 38% in 2018, 3% lower than in 2017. For the same reasons the PwC measures are questionable, legally, so are these. And, they did not even work.
• Channel 4?set a goal of having a 50:50 gender balance in its top earners by 2023 (from a starting point of 66:33) and?Virgin Media?a 50:50 gender balance at all job levels by 2025.

A number of employers such as Goldman Sachs operate ‘returnship’ programmes. While (very sensibly) not exclusively reserved for women, the purpose is to encourage and assist employees who have taken a career break to return to work. This will most often be women who have taken a break for family reasons. These are above criticism.

Some of these measures constitute voluntary positive action and so are lawful by virtue of s.158 of the Equality Act 2010, which permits employers to take positive action for certain groups (in this case, women) to correct underrepresentation. Positive action can also theoretically be used at the point of recruitment to allow an employer to choose to hire a woman because she is a woman in order to correct underrepresentation. However, this is only lawful if the final candidates are as qualified as each other. But, how often are candidates really of equal merit? And at what point in the recruitment process should the assessment be made?

Conclusion

The real-life tensions may be obvious but the strains in the law are largely absent. The Gender Pay Gap Regulations require larger employers to publish gender pay information on an annual basis but that is where they begin and end.

It is hard not to feel sympathy for employers who are under pressure from the Government, clients, the media, and society at large to correct the inequalities within their workforce but a male employee who has worked hard to be the best qualified candidate for the role and who has been kept out of a promotion because of what he is rather than what he has done equally deserves sympathy and the protection of the law – and has it.

Some commentators (including colleagues – this is a personal view) say that the law cannot be working because it is not achieving gender equality and therefore it needs to be changed. I would suggest that the law is not the problem – it is correctly balanced and it is for this reason that it has the support of society as a whole. There are undoubted inequalities in the workforce arising because of gender, but employment law can only tackle the causes of that insofar as they arise in the context of hiring, pay, detriment and dismissal.

Yes, if every employer meticulously observed the Equality Act, there would still be inequality of outcome. But, that is not a reason to change the law. Inequality caused by employers is caught by the Equality Act. The rest is caused by societal and cultural norms. That is a reason to change society; not individual employment law.

Gareth Brahams, BDBF LLP

KEY:

JWT?Bayfield v Wunderman Thompson (UK) Ltd ET 2200540/19V and ET 2200546/19V

Gender Pay Gap Regulations?Equality Act 2010 (Gender Pay Gap Regulations Information)?2017 (SI 2017/172)