A lawyer’s view on JWT sex discrimination case: what’s next for diversity?

An employment lawyer explains why Chas Bayfield and Dave Jenner won their JWT sex discrimination case, and where we go next on diversity.

When our discrimination laws were introduced, legislators were unlikely to have envisaged them being used by white, middle-aged, straight men. And yet that is what has happened in the landmark sex discrimination case brought by two former employees of advertising agency J Walter Thompson (now Wunderman Thompson).

In 2018, JWT had the worst gender pay gap in the industry at 44.7%, and a new creative director at the shop, Jo Wallace, made comments, in a joint presentation with her then boss, Lucas Peon, that JWT’s reputation as lacking in diversity had to be "obliterated".

Chas Bayfield and Dave Jenner made a complaint to HR about the presentation being discriminatory, claiming that in doing so they were making a protected disclosure (whistleblowing) under the Employment Rights Act 1996. Within a week of the complaints being made, redundancies were announced and some of those who made complaints lost their jobs.

Employment Tribunal claim

Bayfield and Jenner brought Employment Tribunal claims against JWT arguing that the main reason they were dismissed was because they had made a protected disclosure. They also brought alternative claims that, if this argument failed, JWT discriminated against them due to their sex, race, sexual orientation and/or age, and/or victimised them for making a protected disclosure (all covered by the Equality Act 2010).

They also claimed against their line manager, Peon, then executive creative director at JWT, and JWT’s HR director, Emma Hoyle (to whom they had originally complained about the presentation).

The Tribunal rejected the employees’ claims that they were dismissed for making a protected disclosure and therefore suffered detrimental treatment, and dismissed their claims for race, sexual orientation and age discrimination. However, the claims for sex discrimination and victimisation succeeded. The Tribunal also rejected all claims against Peon and Hoyle.

Much was made in the case about the perception within JWT that the claimants were focused on the “traditional”. In agency terms, this means focused on traditional forms of media (TV, radio and print) as opposed to digital. The Tribunal accepted that this phrase does not mean “old, outdated or out of touch”.

The Tribunal also agreed that JWT’s plan to address its gender pay gap legitimately included schemes to advance women to senior roles. However, some slides in the presentation proved to be JWT’s downfall. One read: “WHITE, BRITISH, PRIVILEGED, STRAIGHT MEN CREATING TRADITIONAL ABOVE THE LINE ADVERTISING” followed by verbal commentary that “One thing we all agree on is that the reputation JWT once earnt: as being full of “White, British, Privileged... etc.. has to be obliterated.”

The Tribunal found that JWT decided to make the claimants redundant two days after an acrimonious meeting with Peon and Hoyle about the claimants’ views on the presentation. Therefore the claimants were pre-selected for redundancy, making the outcome prejudged. As a result, the redundancy consultation was a sham, and the investigation into the grievances they raised wasn’t conducted fairly. The claimants won their victimisation claim on this basis.

They succeeded in their claim that they were dismissed because of their sex, because JWT viewed its senior creative team as male-dominated (a key reason for the gender pay gap issue).

An influencing factor was Peon’s and Hoyle’s anger at the claimants’ perception of the presentation and subsequent complaints. This, coupled with the claimants falling into the profile JWT wanted to change, meant that they were dismissed due to their gender and, therefore, won their sex discrimination claims.

Promoting diversity

Despite diversity being proved to drive innovation and better decision-making, the advertising industry has a long way to go. JWT was not alone in needing to improve its diversity, particularly at leadership level. Women comprise just 17% of creative directors and representation of other groups is also low. JWT was right to promote change, but this case shows how hard it can be without alienating some existing employees.

It is crucial that HR has a seat – and a strong voice – at board level, which helps ensure that diversity strategies are implemented sensitively. However, this case demonstrates that it is equally important for all complaints to be given due consideration and respect. Agencies should approach diversity by bringing everyone on the journey.

Lastly, a perspective on the treatment Wallace has suffered. She has been subjected to severe internet trolling and received death threats. Yet she co-wrote the presentation with Peon (who has had comparatively little media coverage), and the Tribunal accepted the presentation’s content was appropriate.

Wallace was neither involved in the decision to dismiss the claimant nor as a witness in the Tribunal case. However, she has been singled out for criticism and some tabloid coverage has made much of the fact that she is gay.

That Wallace is open about this to encourage others should be embraced and respected. It is extremely alarming that she should be scapegoated for the failings of others outside her control.

Amanda Lennon is an experienced HR director and employment partner with city law firm Spencer West.

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