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Diversity can be defined as the presence of a multitude of different types of people in the workplace (race, ethnicity, gender, disability). Inclusion is ensuring that those people feel a sense of belonging in the workplace to be themselves. 

If the workplace is diverse but only the views of one group are valued, then the workplace is diverse but not inclusive. Inclusion in the workplace is one of the most important keys to retaining staff. When workplaces do not value the ideas and contributions of their employees, those employees will eventually leave. 

The gender pay gap 

The pay gap covers the difference in the average earnings of men and women regardless of their role or seniority. There are a variety of factors behind the pay gap, including the impact of having children on women's career progression, and higher-paid career choices, with fields such as tech and science typically being male dominated. 

The Government introduced a requirement for all large organisations to publish their gender pay gap information annually to combat this. In assessing the pay gap information, six key metrics were produced including the difference in pay and bonus pay of men and women, along with the proportion of men and women in each of four quartile pay bands. 

The most recent ONS report on the gender pay gap in the UK during 2021 revealed that the pay gap has widened amongst full time employees, but that the pandemic may be responsible for this, although it is still smaller than pre-pandemic levels. More women are choosing to work in this new hybrid pattern to work and care for children simultaneously. This choice could hinder women as they may find themselves overlooked or otherwise disadvantaged in terms of opportunities or experience having been away from the office more than their male counterparts. 

Bayfield v Wunderman Thompson (UK) Ltd 

The recent case of Bayfield has caused ripples in Employment law due to the nature of the claim. A discrimination claim was brought against ad agency Wunderman Thompson by 2 white, middle-aged, straight men. 

Wunderman Thompson’s gender pay gap was reported at a median of 44.7% in 2018, the highest across the advertising industry in that year. The figures were quoted as ‘very disappointing and we are determined to improve them in the coming years. At a conference, the agency referred to their own reputation as being “Knightsbridge boys’ club” and informed everyone that they would be recruiting new female talent, and that they had to do what it takes to “ensure these women remain in the business and rise to the top”. They were quoted as saying, “In the World Cup of sucking at pay gap numbers, we made the final”. The agency wanted to obliterate their reputation of being full of “straight, white men” but these statements drew complaints from some employees. Two of these employees, both straight, white men, were shortly thereafter selected for redundancy. They brought claims to the Employment Tribunal. The Tribunal upheld the claimants’ claims of direct sex discrimination, harassment related to sex, victimisation and unfair dismissal. 

This relatively rare type of case does highlight a dilemma for employers. While it is positive that Wunderman Thompson identified the problem in their organisation and tried to rectify it, there are no quick fixes to a situation where diversity is not ingrained already, and this outcome isn’t surprising. 

How do companies look to offset diversity? 

Positive discrimination is recruiting or promoting a person solely because they have a relevant protected characteristic or setting a quota to recruit a certain number of people who have a protected characteristic. This is unlawful under the Equality Act. Positive action on the other hand is where employers put policies in place which promote equal opportunity in the workplace by taking into account people’s gender, race and any disabilities. 

Section 158 of the Equality Act 2010 allows employers to use proportionate means to achieve the aims of enabling or encouraging people with a protected characteristic to overcome that disadvantage, meeting those needs. Section 159 allows an employer to take a protected characteristic into consideration when deciding whom to recruit or promote, where people having the protected characteristic are at a disadvantage or are under-represented – this can be done only where the candidates are as qualified as each other. 

Setting quotas is not considered positive action and is not a lawful way of improving diversity in the workplace. Setting a target to encourage inclusivity however can be encouraged. An example of a company doing it well is Marks & Spencer, who signed up to the ‘30% Club’, a campaign which has a target of at least 30% women on company boards. They reached this target in 2012 with 31% of women on its board. 74% of their workforce is female; they have done this by creating a positive culture for women. They offer part time and flexible working options, such as women job sharing at all levels up to and including senior managers in the business and term-time contracts. 

Steps to take 

Recruitment must still be based on merit over anything else, such as a person’s gender or age. However, where employers have reason to believe that perhaps persons of a particular protected characteristic are under-represented in the workforce, it is possible to take certain steps to work towards fixing the effects of any previous inequality. Such steps could be: 

  • Participating in open days and career fairs (e.g. when opening a new site, holding an open day promotes inclusivity for disabled applicants and those who may struggle with a standard written application. These kinds of events also encourage recruitment from local area); 
  • Offering pre-application training and advice; 
  • Advertisements which encourage applications from people of a particular characteristic, whilst making it clear that selection will be on merit; 
  • Using positive action statements in recruitment adverts, for example stating that the employer welcomes applications from a particular group; and 
  • Making targets for recruitment (e.g. 50/50 male/female shortlists). By using targets, you are compiling the shortlist based on merit rather than giving preferences to ensure that a quota is met.

Speak to an employment law solicitor about diversity in the workplace 

If you have an employment law or HR matter you need to discuss, please don't hesitate to contact our team. We advise on all aspects of employment and HR law and help businesses, organisations and individuals achieve their objectives. To get in touch please complete the form below or give us a call.

Key Contact

Helen Watson

Helen Watson

Partner | Head of Employment Law


Helen has been Head of the Employment Team at Aaron and Partners LLP for over 16 years and is an experienced Tribunal Advocate, Accredited Mediator and Workplace Investigator. Helen is also a Chartered Director and Executive Boardroom Coach.

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