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Gay barrister wins discrimination battle

8 February 2012

A gay barrister at a City firm who was accused by a colleague of giving work to his “batty boy mate” was a victim of sexual orientation discrimination, the EAT has ruled.

Judge Birtles said Lee Bennett, a non-practising barrister, joined niche fraud specialists Bivonas in 2007 on a salary of £82,500.

The judge said his contract of employment with the firm provided that his salary would be increased to £100,000 if he could bring in £300,000 in gross fees in his first year.

Giving judgment in Bivonas and others v Bennett (UKEAT/0254/11/JOJ), Judge Birtles said: “The respondent was gay. The tribunal found as a fact that his sexual orientation as a gay man was known to the appellants, during the months following the commencement of his employment and certainly by the end of 2007.”

The EAT heard that, at social occasions attended by most of the firm’s staff, Bennett “became increasingly comfortable in openly discussing sexual matters in an explicit way, after which it had been openly acknowledged that he was a gay man, from approximately mid-2008 onwards”.

In 2009, Bennett “covertly recorded” a conversation with a colleague at a coffee shop outside the office.

The colleague said at one point: “If your strategy was to hang outside lavatories, if it develops work I would say it was the best strategy in the world.”

The following year, he found a note or aide memoire written by another colleague that said he “should be sacked” and “takes our cases to his batty boy mate” and another named barrister.

Bennett visited his GP in 2010, the EAT heard, and was signed off work with insomnia due to work issues. He visited his solicitor on the same day, who sent a letter to Bivonas “complaining about the homophobic remarks and describing the words ‘batty boy’ as a pejorative sexual slur, used to describe gay, bisexual and effeminate men”.

Judge Birtles said an employment tribunal “accepted on the evidence before it that the term ‘batty boy’ arose from a rap song in about 2007, in which violence against gay men was incited but that the term had passed, to some extent over the intervening period, into more common parlance”.

The judge said that Bivonas argued at the tribunal that it had “once, for a period of two to three years, employed a gay male receptionist/PA”.

He said it was “not difficult to see how the tribunal could take the view that a reasonable worker would or might take the view that in all the circumstances the aide memoire was to his detriment”.

The judge went on: “While there will clearly be cases where a tribunal 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 tribunal to state the test explicitly in these terms, this is not such a case.”

The EAT concluded that the employment tribunal had correctly applied the law relating to detriment in a case of sexual orientation discrimination, relying on Shamoon, and that the tribunal had made adequate findings of fact before reversing the burden of proof, relying on Igen v Wong. The appeal was dismissed.

John Wadham, group director legal at the Equality and Human Rights Commission, which funded Bennett’s defence, said: “Homophobia will not be tolerated in the workplace or anywhere else.”

Wadham said the gay solicitor’s victory had “set a precedent for discrimination law”.

A spokesman for Bivonas said: “Mr Bennett no longer works for Bivonas and the events complained of took place nearly two years ago. We have learned from this experience and have taken the appropriate measures in the light of the tribunal’s observations.”

Categorised in:

Discrimination The Bar