Employment Tribunal unequivocal on discrimination stance as gay lawyer wins action
28 March 2011 | By James Swift
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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.
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.