Employment Tribunal unequivocal on discrimination stance as gay lawyer wins action
A gay lawyer who discovered a note from one of his firm’s partners that accused him of giving work to his “batty boy mate” has won a discrimination fight against the firm.
Samantha Mangwana
The decision comes amid a rise in claims of homophobic discrimination. Figures from the Employment Tribunal show an increase of almost 20 per cent in 2009-10 from the previous year.
The claimant in this case, Lee Bennett, was a non-practising barrister at niche London litigation firm Bivonas when he discovered an aide-mémoire, hand-written by a partner at the firm, that stated: “Lee- takes out cases to his batty boy mate and Desmond De Silva - whilst B disses us, Fisher et al. Lee completely wrong for VR within six months case would be with GO, Desmond De Silva and the batty boy.”
Bennett brought three complaints against Bivonas at the Central London Employment Tribunal. He claimed that he was discriminated against in the note, that there was no proper investigation into his grievance and that he was given no regular annual salary reviews because he was gay.
The first two complaints succeeded, but Bennett’s claim that he did not receive enough salary reviews because he was gay was rejected. The tribunal agreed that such reviews depended on him bringing in a certain amount of business for the firm, which he had failed to do.
Bennett joined Bivonas, a small civil and criminal fraud-focused firm, in January 2007 and the tribunal was satisfied that his colleagues knew he was gay within his first year.
In April 2010 Bennett, together with a QC who also worked for Bivonas, went to an archive centre in Kidbrook to review a client file for the firm. While leafing through the file Bennett found the note, which was written by partner John Bechelet.
The next day Bennett’s GP signed him off work due to insomnia caused by work stress. On the same day Bennett’s solicitor sent a letter to Bivonas complaining about the note.
On 5 May Bivonas managing partner Antony Brown told Bennett’s solicitor that the complaint would be investigated as a formal grievance, but the next day wrote that he had carried out the investigation and decided that the note was not meant to be kept, adding: “I’m satisfied that Mr Bechelet does not hold homophobic views and deeply regrets any offence caused. […] I’m entirely satisfied that this was an isolated incident.”
In July Brown wrote a letter to Bennett’s lawyers raising accusations about Bennett’s professional standing, stating that Bennett’s lack of upcoming work had influenced his decision to bring the complaint. The tribunal concluded that this was an attempt at “dirt-digging”.
In coming to its decision the tribunal, which heard the case in December 2010 and January this year, rejected the respondents’ claim that Bennett was not treated less favourably because Bechelet’s note was never meant to have been seen by Bennett. It also found that Brown’s investigation was “seriously defective”.
“Reading the entire passage, what is being said is that the claimant, as a gay man, is passing work to somebody else because they are gay and not therefore for other meritorious reasons,” said the tribunal. “This is a professional slur of the utmost gravity.”
The number of claims of discrimination based on sexuality is on the rise.
“It’s disappointing but there’s definitely been an increase in terms of discrimination claims in law firms, from both employees and partners,” said Jo Keddie, employment partner at Winckworth Sherwood. “There were 710 claims in the Employment Tribunal for discrimination on the grounds of sexual orientation in 2009-10 - the last year for which figures are currently available. This represents an 18 per cent increase on the previous year.”
However, the latest decision is to be welcomed, according to lawyers. Until recently sexuality-based discrimination claims rarely attracted the kind of robust judgments seen in racial discrimination cases.
In a 2004 tribunal hearing the word ’poofter’ was found to mean someone who was shirking their duties and therefore not deemed discriminatory.
“This decision reflects a recent - and welcome - trend in gay rights cases,” said Samantha Mangwana, an employment lawyer at Russell Jones & Walker. “Although sexual orientation discrimination at work has been unlawful for more than eight years now, it’s only relatively recently that we’ve started to see really robust judgments such as this from tribunals.
“While for the first few years it had been depressing to see these cases fail in circumstances where no tribunal would conceivably have tolerated equivalent racist or sexist language, it’s a relief to see that this tide appears to have turned, with rock-solid tribunal decisions now making it clear that gay rights are second-class rights no longer.
“To treat someone less favourably because of their sexual orientation is against the law and all workers can rightly expect the tribunals to uphold that.”
Brown said: “We’re surprised by the decision and are considering appealing it.”
Bennett, who is no longer at Bivonas, could not be reached for comment.
Readers' comments (6)
Joe | 28-Mar-2011 12:56 pm
First
Unsuitable or offensive? Report this comment
Anonymous | 31-Mar-2011 4:27 pm
As an observer at the trial it was interesting to see on the final day of the proceedings that Antony Brown tried to adduce new evidence into the case. This new evidence was the Ali G DVD "Ali G IndaHouse". Brown wanted to play part of the movie to the judges to show that the use of the term "batty boy" was used in the movie and this was shown up and down the country in cinemas. The judges did not wish to watch the DVD
Unsuitable or offensive? Report this comment
David Cade | 1-Apr-2011 10:35 am
So Antony Brown actually thought that a simple and authoritative “I’m satisfied that Mr Bechelet does not hold homophobic views and […] I’m entirely satisfied that this was an isolated incident” would knock the matter on the head?
I hope a lesson has been learned.
Unsuitable or offensive? Report this comment
Anonymous | 4-Apr-2011 11:15 am
During a meeting Brown had with Bennett in October 2009 he said to Bennett "if your strategy was to hang outside lavatories, if it develops work I would say it was the best strategy in the world." When Bennett stated this in evidence, Brown's counsel called Bennett a liar and suggested that the meeting had not taken place and that Brown had not made this statement. However, Bennett then introduced a covert tape recording of the meeting. Brown then said in evidence that it had been a conscious joke in which no offence had been intended. The Tribunal concluded that Brown's comment had not caused offence to Bennett nor had it been intended offensively. The Tribunal did say that Brown had himself shown a level of stereotypical assumptions in his "hanging outside lavatories" remark.
Unsuitable or offensive? Report this comment
Anonymous | 6-Apr-2011 11:11 am
"Is this for real? This is so bad! It must be a breach of the code of conduct and something the SRA would deal with. I agree with comment above.
Unsuitable or offensive? Report this comment
Anonymous | 6-Apr-2011 12:31 pm
Discriminatory conduct would fall within Code 6 (Equality and Diversity) of the Rules of Conduct and as such something that the SRA would deal with.
Rule 5.01 deals with supervision and management responsibilities, and states:
If you are a recognised body, a manager of a recognised body or a recognised sole practitioner, you must make arrangements for the effective management of the firm as a whole, and in particular provide for [various matters including]:
compliance with rule 6 (Equality and diversity)
Rule 6.02:
Where there has been a decision of a court or tribunal of the United Kingdom in proceedings to which you are a party, that you have committed, or are to be treated as having committed, an unlawful act of discrimination then that finding shall be treated as evidence of a breach of this rule.
Rule 6.03:
If you are a recognised body, a manager of a recognised body or a recognised sole practitioner, you must adopt and implement an appropriate policy for preventing discrimination and harassment and promoting equality and diversity within your firm. You must take all reasonable steps to ensure that all employees, partners, members and directors are aware of, and act in compliance with, its provisions and that it is made available to clients, the Solicitors Regulation Authority and other relevant third parties where required.
6.04:
If you have management responsibilities in in-house practice you must use all reasonable endeavours to secure the adoption and implementation of an appropriate policy for preventing discrimination and promoting equality and diversity within your department. You must take all reasonable steps to ensure that all staff within that department are aware of, and act in accordance with, its provisions.
6.06 (4):
• You should be aware that, whilst the provisions contained in this rule are based upon legislative provisions, this rule goes beyond the scope of the legislation in a number of key areas and in particular in relation to age discrimination.
In particular you should note that it requires you to refrain from discriminating against all of those persons referred to in 6.01(1) in all of the circumstances referred to. There is no limitation in this requirement to discrimination occurring only in particular circumstances. Thus, for example, whilst the law dealing with age discrimination currently applies only in relation to employment and vocational training, this rule applies to all of your professional dealings with barristers, other lawyers, clients or third parties.
6.06 (21):
Whilst decisions of unlawful discrimination by an employment tribunal are not binding on the SRA or the Solicitors Disciplinary Tribunal in determining whether an allegation of misconduct involving discrimination is well founded, such decisions are admissible in evidence in disciplinary proceedings. The SRA or the Tribunal must determine whether an allegation or decision of discrimination against you amounts to misconduct. The starting point for this will be that the decision represents a strong indindication that misconduct has taken place and it will be for you to show why, despite the decision, there has not been misconduct.
Unsuitable or offensive? Report this comment