In Bivonas LLP and others v Bennett, the Employment Appeal Tribunal (EAT) has upheld the decision of the Employment Tribunal (ET) that a gay barrister had been discriminated against on grounds of his sexual orientation.
Lee Bennett joined Bivonas LLP as a non-practising barrister in January 2007, having been headhunted by a recruitment agency. His role was essentially to bring in new business. He was open about his sexual orientation with his work colleagues. In April 2010, whilst reviewing a case file, he came across a three-page handwritten memorandum made by one of the partners in the firm, in which he and a Mr Sharp were discussed. Whilst the comments about the work of both men were uncomplimentary, the note also referred to Mr Bennett’s sexual orientation, in a way he found offensive, and said that he was passing work to a friend of his because he too was gay, not for other meritorious reasons.
When Mr Bennett raised the matter with his employer, Bivonas LLP carried out an investigation and found that the comments had been made as a personal ‘aide-memoire’. This was not intended to be retained and the firm was satisfied that it was an isolated incident.
Mr Bennett claimed that he had been the victim of discrimination on the grounds of his sexual orientation.
The ET found that the wording of the note was inherently insulting, both because of the offensive nature of the language used in reference to Mr Bennett’s sexual orientation and because it constituted a ‘professional slur of the utmost gravity’. By committing the remarks to paper, the partner who made them ran the risk of them being mislaid, with the possible outcome that they would later resurface and be seen by Mr Bennett or by another member of staff. In the ET’s view, the comments plainly constituted a detriment to Mr Bennett and his claim was upheld.
Bivonas LLP challenged this decision.
The EAT found that the ET had been entitled to find that the treatment afforded Mr Bennett was to his detriment. Given the particular circumstances of the case, it was not difficult to see how the ET could form the view that a reasonable worker would or might take the view that the comments made were to his detriment. Whilst there will clearly be cases where an ET must think long and hard about how a reasonable worker would or might respond to particular treatment and while, in such cases, it will clearly be helpful for the ET to state the test explicitly in those terms, this was not such a case. The ET found that the handwritten note was ‘offensive and insulting on its face’ and plainly constituted a detriment to Mr Bennett. When the ET finds facts as plain as this, there can be no doubt that it is reasonable for the employee to regard the treatment as being to his or her detriment. On the facts of the present case, therefore, there was no need to construct a hypothetical reasonable worker and consider how he might have reacted to the insulting memorandum.
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