EAT backs Bennett in sexual orientation discrimination claim

2nd February 2012

Limited liability partnership Bivonas LLP became the latest firm to fall foul of legislation designed to stop discrimination against gay people in the workplace.

Judgment was handed down 31st January 2012 in the case of Bivonas LLP v Bennett in the Employment Appeal Tribunal. Lawyers acting for the law firm Bivonas LLP failed to overturn an earlier ruling which decided that Lee Bennett had been discriminated against on grounds of his sexual orientation.

Mr Bennett was a lawyer who was openly gay at work. He discovered a note in an archive file written by one of his firm's partners which said "Lee should be sacked.Lee - takes all his cases to his batty boy mate". The ET held that this amounted to sexual orientation discrimination.

Bivonas LLP attempted to overturn the ruling arguing that the Employment Tribunal was wrong to decide that the comments in the note contained in the note could amount to a detriment. Bivonas LLP relied on a suggestion in an earlier case that a mere insult could not amount to a detriment and the conduct complained of must disadvantage the claimant in his workplace. The Employment Appeal Tribunal yesterday rejected their appeal and agreed with the Tribunal that the note was discriminatory. It agreed that not only was the note personally insulting, it also clearly implied (as the Tribunal put it) 'that the Claimant, as a gay man, is passing work to somebody else because they are gay and not, therefore, for other meritorious reasons. This is a professional slur of the utmost gravity.' Having regard to all the circumstances of the case, including the effect that finding the note would have on his trust and confidence in his employer, the Tribunal was entitled to find that Mr Bennett had been subjected to a detriment.

Tom Coghlin, an employment barrister at Cloisters, said: "This case is notable for the EAT's approach to the test for what constitutes a 'detriment' in discrimination law. The employer submitted that the correct test was whether, because of the alleged discriminatory conduct, the claimant was 'disadvantaged in the circumstances in which he had thereafter to work' (May LJ in De Souza v Automobile Association [1986] ICR 514). The EAT in this case (at para 31) applied the test as expressed by Brightman LJ in Ministry of Defence v Jeremiah [1979] ICR 13: 'whether a reasonable worker would or might take the view that in all the circumstances it was to his detriment'. Both tests have been cited with approval in earlier House of Lords cases but the Jeremiah formulation, whilst still an objective test, arguably places the emphasis more on the sense of grievance felt by the claimant and whether this is justified, and less on the practical impact of the conduct."

Notes

Case was brought by MR L BENNETT represented by David Massarella instructed by the Equality and Human Rights Commission

Appellants were (1) BIVONAS LLP (2) MR A BROWN (3) MR J BECHELET represented by Mr Brian Lacy who was instructed by DWF LLP

One of Michael Rubenstein's top 50 cases to watch for 2011-2012