How JWT Was Hit With—and Lost—a Lawsuit About Discriminating Against Men

In 2018, five male employees of agency J. Walter Thompson’s creative department were made redundant, leading to a lawsuit that alleged discrimination on the agency's part. The case was brought by former creative directors Chas Bayfield and Dave Jenner, both white heterosexual men in their 50s. They claimed their jobs had been cut after they complained about a conference presentation describing JWT as having a "lurking reputation" for being "white, British, privileged [and/or] straight." A recent ruling by a U.K. tribunal sided with the plaintiffs, saying the agency discriminated against the men laid off. Specifically, the lawsuit revealed that the financially struggling agency had changed course on its layoff plans amid revelations of its gender pay gap, resulting in terminations for the five men who'd raised concerns around how issues of diversity were being discussed. The tribunal found the agency had no documentation backing up its decision to lay off these specific employees, and it ruled that JWT committed sex discrimination, victimization and unfair dismissal. As the agency considers whether to appeal and awaits word of what kind of financial penalties it might face, plaintiff Bayfield said in a statement to Adweek that he hopes the case sends a message to parent company WPP that "you do not fight discrimination with discrimination and that there are no shortcuts to meaningful change." Adweek has made this story free to all readers. Subscribe to support high-quality, critical journalism. The following timeline of events leading up to the ruling is based on a report issued by the tribunal, summarizing its findings from hearings held over the course of six days in February 2021. The entire 80-page document is embedded at the bottom of this article. An agency under pressure Bayfield and Jenner had worked together at the agency for seven years at the time of their dismissal. Bayfield is best known for his work on the long-running British soft drink campaign “You Know When You’ve Been Tango’d.” On June 2, 2017, an email to 60 recipients highlighted promotions to creative director roles and also mentioned their support in pitches. “Their attitude to creativity and pushing the work is a perfect example of what we are trying to build,” the email stated. (The legal document does not disclose who at JWT wrote the email.) The month after they were promoted, the case outlined, they received a 15% pay raise and an additional 5,000-pound (almost $7,000) bonus in October 2017. However, the “few pitches” won between 2017 and 2018 by the agency in the run-up to the dismissals were not enough to keep everyone in these new roles, as “substantial wins did not materialize,” according to Jenner. During one redundancy exercise held in 2017, the pair, then working as senior creatives, claimed to have been scored the highest of the creative department, with a score of 47. The next team highest received a score of 41. No redundancies were made within the creative team following the review. Following this period, concerns were raised by the claimants on Dec. 5 to the human resources department. They were worried about their futures after a meeting that they believed indicated their experience in digital was in doubt and that they were seen as being “a traditional team,” a phrase they found alarming. “If you’re ‘traditional,’ you’ve been around a long time, therefore an old creative,” Jenner told the tribunal. The tribunal agreed, determining that the use of the word "traditional" meant "out of touch." In a meeting with supervisors, the two creative directors said their emphasis on creating TV ads came down to the briefs they had been given within JWT and not their own preference. They felt they also had proposed digital media ideas during their time at the agency. On March 14, 2018, redundancies were again planned due to the agency's financial performance not improving. These, however, had fallen from the 28 employees originally suggested during the previous process down to eight from the creative department who would leave in the following month. A document with the initials of those proposed for redundancy was drawn up, which did not include the claimants, nor any staffers who held the post of creative director. This was accepted as evidence by the tribunal that a redundancy consultation exercise had not been undertaken before selecting those to be released. The gender pay gap debate The following month, JWT’s Gender Pay Gap report was published and highlighted a gender pay gap of 38.8% and a median pay gap of 44.7%. The report from the agency stated that the numbers were “very disappointing” and claimed that JWT was “determined to improve them in the coming years. … 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.” Steps were then outlined by the agency to improve the figures, and the tribunal later agreed these steps were “reasonable and proper.” That change was expected to take place "quickly," as directed by the agency’s leadership. In May 2018, at the Creative Equals conference in London, a presentation on JWT's gender pay gap was written and presented by creative leaders Jo Wallace and Lucas Peon. One slide that reportedly drew particularly strong reactions read, “white, British, privileged, straight men creating traditional above-the-line advertising” and was accompanied by the commentary, “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.” A later slide read: “Remember the earlier slide about JWT’s lurking reputation. The boys club element is one factor amongst a whole lot of other parts that need addressing, too.” Reports on the presentation led Bayfield and Jenner to email HR manager Emma Hoyle to outline what they said was disquiet among the creative department about the stance. They told the tribunal they assured the department that it was a misunderstanding and was meant to be in reference to the perception of the agency rather than the staff it employed. Three other creatives also complained about the presentation, according to the tribunal. The agency made several attempts to clarify the intent of the presentation, including an email from Hoyle that said the goal was "to describe our reputation as opposed to our reality and certainly not our current employees." An 'unfortunate correlation' Over a series of meetings outlined during the tribunal, the conversation around the statements in the Creative Equals presentation became increasingly fraught, despite attempts by the agency to clarify the meaning behind the wording and quell the worries on the creative team. Around this time, the claimants were also selected for redundancy, although there was a dispute as to when this decision was made, as no notes were taken or produced from meetings when it was discussed and agreed upon. All five of those who had complained about the presentation were chosen for redundancy, the tribunal found, but no documentation could be produced to outline how their fates were decided. It was also discovered that one female creative had been slated for redundancy after reportedly scoring poorly during the previous review—but kept her job after Peon removed her from the list of impending staff cuts due to her gender. Speaking to the tribunal, Peon described the situation of those who had complained and were then selected for redundancy as an “unfortunate correlation.” On June 26, Bayfield and Jenner filed an internal grievance claiming discrimination on the basis of gender, race, nationality, sexuality and age and "victimization for having expressed concerns about discrimination.” JWT European regional director Tony Taylor reviewed the evidence and concluded that there was no bias in the decision to make the claimants redundant. It was explained to Bayfield during this process that “the highest paid” were those most at risk, and as a result, five men on the creative team would subsequently depart. Having exhausted their options for internal appeal, Bayfield and Jenner took their discrimination claim to the U.K. legal system. The outcome In the end after the case was considered, only some of the claims were upheld against Wunderman Thompson (the current agency following the merger of JWT and Wunderman). Executive creative director Peon and HR manager Hoyle were fully cleared of all claims, while the agency was judged to have committed sex discrimination, victimization and unfair dismissal. In a statement to Adweek, a spokesperson for Wunderman Thompson said, “We are giving careful consideration to the tribunal’s ruling on events that took place within the J. Walter Thompson business in 2018. Since then, we have taken many steps to ensure that we provide an inclusive workplace in which everyone is treated fairly, and we do not tolerate any form of discrimination or harassment.” Other areas of the case were ruled for "in part," including victimization and harassment. Other claims around age discrimination, sexual orientation discrimination, race discrimination, harassment and dismissal on the grounds of making protected disclosures against the agency were dismissed. Meanwhile, a statement issued by Chas Bayfield to Adweek said, “As a strong advocate for diversity and inclusion, I was hugely disappointed by the treatment we all received at the hands of what was once a brilliant agency in JWT. “It has been a long and challenging journey, but an essential one. I am delighted that having considered the evidence, the tribunal has confirmed what always seemed obvious to us; namely, that management decided to address the gender pay gap by axing senior men. That is not equality, it is the very definition of discrimination. My hope is that this sends a loud message to the WPP mothership and corporations generally that you do not fight discrimination with discrimination and that there are no shortcuts to meaningful change. “Nobody, male or female, deserves to be treated in the manner that we were, and I want to believe that this decision will make similar experiences less likely in the future,” he concluded. With the ruling made, the agency has around 40 days to appeal, with damages not expected to be revealed later this year. Editor's note: On July 12, Wunderman Thompson shared the following statement with Adweek: “We will be appealing the tribunal’s ruling on events that took place within the J. Walter Thompson business in 2018. We do not tolerate any form of discrimination or harassment and are committed to providing an inclusive workplace in which everyone is treated fairly.” As JWT Merges With Wunderman, What's Next for WPP?