Law firm loses appeal over "slur" against gay barrister

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By Legal Futures

6 February 2012


Court of Appeal: appeal against rulings in favour of College of Law and SRA dismissed

Niche City litigation firm Bivonas has failed to overturn a ruling that it discriminated against an employed barrister on the basis of his sexual orientation.

The case was brought after Lee Bennett, who was openly gay, stumbled across a memo from one of the firm’s partners that said he should be sacked over his performance and falsely implied that he only gave cases to a gay barrister – described in the memo as “his batty boy mate”.

The employment tribunal ruled that Mr Bennett had suffered unlawful discrimination in respect of both the memo and the conduct of the grievance investigation that followed. Last week the Employment Appeal Tribunal (EAT) upheld the decision, including the finding that it was a “professional slur of the utmost gravity”.

The Equality and Human Rights Commission funded Mr Bennett’s defence against the appeal.

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The tribunal considered if a ‘reasonable’ worker would think the memo had put them at a disadvantage. It decided that other people would have been insulted if the memo had been about them.

The EAT found no evidence that heterosexual men had been insulted in the same way as Mr Bennett for being gay. Nor could the law firm provide justification for treating Mr Bennett differently to other employees.

John Wadham, group director of legal at the commission, said: “Homophobia will not be tolerated in the workplace or anywhere else. We funded

Mr Bennett’s defence and this win has set a precedent for discrimination law.”

In a statement, Bivonas said: “Mr Bennett no longer works for Bivonas; 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.”

Meanwhile, the Court of Appeal has upheld rulings by an employment tribunal and the EAT that the College of Law and the Solicitors Regulation Authority (SRA) made reasonable adjustments to their examination conditions for the legal practice course so as to prevent Justin Burke, who suffers from multiple sclerosis, from being placed at a substantial disadvantage in comparison with people who are not disabled.

The College and SRA made several adjustments, but among those they did not accommodate was allowing him to take the exams at his home in Brighton, rather than at the College of Law in Guildford. The College and SRA recognised that requiring Mr Burke to travel from his home to Guildford each day would place him at a substantial disadvantage and so they agreed to pay for him to stay at the local YMCA.

Lord Justice Kitchin said: “In my judgment the employment tribunal did engage with the issue of the reasonableness of the adjustments to the time requirement. It identified the effects of Mr Burke’s disability and how they placed him at a disadvantage compared to others and it explained that the various adjustments made by the respondents, when taken together, addressed those effects.

“The tribunal went on to explain that the respondents treated Mr Burke with courtesy, dignity and respect throughout, that they were always open to suggestions of appropriate further adjustments and that they reviewed and revised his learning contract periodically at his request. In doing so they met his legitimate concerns.”

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