Reducing the Gender Pay Gap – Risks with taking drastic action

In 2018, an advertising agency published details of a gender pay gap of 44.7% which was extremely high. Shortly after this, at a company conference, a presentation was given in which the agency stated its intention to “obliterate” its reputation for being full of “straight white men”. One of the slides in the presentation referred to “white, British, privileged, straight men”, with the text crossed out. The narrative to 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”.

The content of the presentation resulted in significant unrest in the agency’s creative team, and complaints were made to Human Resources that the presentation was very biased against straight white men. The company did accept that following this presentation being made, “tensions were running high” amongst some employees who felt offended by this.

Shortly after the conference, two of the creative directors who had complained about the biased nature of the content of the presentation were made redundant. Both employees selected for redundancy were straight white British men. These two former employees subsequently brought employment tribunal claims.

The employment tribunal accepted that the Company’s objective to reduce the gender pay gap and to take steps to create a more diverse workforce was a “perfectly legitimate response” to high gender pay gap figures. However, the tribunal found that the reason for the claimants’ dismissals was ultimately their sex.

It was found that the agency had viewed the senior creative team as male-dominated and believed that this was likely the reason for its gender pay gap figures being so poor. As the gender pay gap issue was on the employer’s mind, it was found that dismissing the claimants would have had a positive impact on this issue as it would reduce the wage bill and therefore the pay gap, and potentially open up senior positions that could be filled by women.

The employment tribunal considered whether hypothetical comparators of senior female creative directors would have been treated in the same way, and decided they would not. The tribunal found that while there may have been a push back against similar views if displayed, the reaction would not have been as heightened and they would not have been considered for disciplinary action or almost immediately pre-selected for redundancy. The tribunal found that in fact, quite the opposite would have been true and the comparators would likely have been protected from redundancy on the basis that they would improve the gender pay gap figures. This was supported by evidence provided that showed a matter of days before the claimants’ selection for redundancy a member of the senior creative team had been saved from redundancy, with one of the reasons being that she was female

On this basis, the employment tribunal upheld the claimants’ claims of unfair dismissal, sex discrimination and victimisation.

This case reaffirms that there is no quick and easy way to reduce a gender pay gap, and it will not be as simple as dismissing high paid male employees to reduce the gap.  It also provides a reminder that all discrimination is unlawful, even where the victims are from what may be considered by some to be a privileged group.

Where an employer is seeking to reduce the gender pay gap, subtle steps to level the playing field by ensuring opportunities are genuinely available to all are the best way to do so safely and without risk of singling out a particular gender.