Claims brought by two men alleging discrimination on grounds of their sex serve as a useful reminder that there are limits on the scope employers have to promote diversity. 

The Equality Act provides protection for a number of characteristics, including sex, race and age. In a case brought against JWT by its former employees Chase Bayfield and Dave Jenner, the Employment Tribunal concluded that the men had suffered discrimination on grounds of their sex. The Tribunal accepted the argument that they were selected for redundancy in part to help the company achieve a better outcome on gender pay gap reporting and that this amounted to unlawful discrimination on the grounds of their sex. The Tribunal heard that a female creative director had previously stated at a company conference that the company's reputation for being "full of white British privileged men" had to be "obliterated."

English employment law does not generally allow for positive discrimination, with only a very limited exemption aimed at dealing with under-representation in the public sector. Employers must be careful to ensure that recruitment and redundancy processes do not fall foul of the legal obligation not to subject any person to a detriment on grounds of a protected characteristic.