Gay barrister who found homophopic comments in case file wins discrimination case

A gay barrister who found references to his “batty boy mate” in a case file has had his claim of sexual orientation discrimination upheld at the employment appeal tribunal (EAT).

Lee Bennett, who worked at law firm Bivonas at the time of the incident, found the comments in a three-page, hand-written memorandum inside a client’s file that he and another lawyer were reviewing.

According to the tribunal ruling, the wording of the note, which the company said was supposed to be a personal “aide-memoire”, was inherently insulting to Bennett due to his sexuality.

It also stated that a comment in the note that Bennett “takes our cases to his batty boy mate”, inferred that Bennett, as a gay man, was passing on work to somebody else because they were also gay and was a “professional slur of the upmost gravity”.

Stephen Simpson, senior employment law editor at XpertHR, summarises the tribunal’s and the EAT’s ruling.

While the employee who wrote the note said that Bennett was never intended to read the comments and that he did not know how it ended up in the case file, the tribunal ruled that, whatever the intentions, writing it down meant a risk of Bennett or another member of staff reading it.

Simpson explains why the argument that the note was not meant to be retained or read was not a valid defence for the discriminatory comments.

The tribunal also concluded that the firm’s investigation of the grievance Bennett submitted after finding the homophobic comments was “seriously defective” as no notes were kept, the conclusions were drawn within 24 hours and there was a lack of evidence of a properly conducted investigation.

The Equality and Human Rights Commission (EHRC), which funded Bennett’s defence against Bivonas, welcomed the ruling.

“Homophobia will not be tolerated in the workplace or anywhere else,” said John Wadham, group director legal of the EHRC. “We funded Mr Bennett’s defence and this win has set a precedent for discrimination law.”

Bivonas said that they had learned from the experience and had taken “appropriate measures” in light of the ruling.

Listen to the full comments from XpertHR senior employment law editor Stephen Simpson on the case in the XpertHR weekly podcast.