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In this post we are going to examine the Employment Appeal Tribunal (“EAT”) case of Bivonas LLP and others v Bennett EAT/0254/11. In this case the Employment Appeal Tribunal was required to decide whether the contents of a handwritten note which referred to a colleague as a “batty boy” constituted a detriment, and whether it could therefore be discriminatory.

Summary of Bivonas LLP and others v Bennett

The Employment Appeal Tribunal held that a handwritten note which contained derogatory references about a colleague could clearly be a detriment to said colleague, even if the derogatory reference was not directed at said colleague and the note was not intended to be read by the colleague. Further, the EAT held that there had been sufficient information available to the Employment Tribunal for the Tribunal to conclude that, in the absence of an alternative explanation for the conduct complained of, the claimant had been discriminated against.

The facts in Bivonas LLP and others v Bennett

Bivonas LLP is a small litigation practice specialising in complex and high-value disputes; Mr Bechelet was at the relevant times a partner in the practice. Mr Bennett, who is homosexual and a non-practising barrister, commenced employment at Bivonas LLP in January 2007.

In October 2009 Mr Bennett covertly recorded a conversation between himself and a colleague, Mr Brown. During a discussion on business development Mr Brown stated that “if your strategy was to hang outside lavatories, if it develops business I would say it was the best strategy in the world”. The recording showed that Mr Bennett laughed at this statement and continued with the conversation.

On 28 April 2010 Mr Bennett and a colleague, Mark Rainsford QC, attended a storage facility where Bivonas LLP kept their archived client files in order to review a file. Upon searching the relevant client file Mr Bennett found a three-page handwritten note written by Mr Bechelet in which he and a colleague were described in derogatory terms; among the remarks, the note recorded that Mr Bennett “takes our cases to his batty boy mate” and went on to make a further reference to “the batty boy”. Mr Bennett was shocked and upset at the note and Mr Rainsford QC agreed that it was a serious matter. Mr Bennett took photographs of the note, the file, and the box within which the file was contained.

On 29 April 2010 Mr Bennett was signed off work by his GP, as he was suffering insomnia due to stress at work issues. On he same day his solicitors sent correspondence to Bivonas LLP complaining that homophobic remarks had been made referring to Mr Bennett in derogatory terms. Mr Brown replied on 5 May, confirming that a formal grievance investigation would be carried out and that a formal hearing would then take place.

On 6 May 2010 Mr Brown wrote to Mr Bennett’s solicitors to inform them that the internal investigation had been completed and that the matter would proceed to a formal hearing. Mr Brown sent his investigation notes: these concluded that the note in question had been written by Mr Bechelet as a personal ‘aide-de-memoire’ in April 2008 and that the note was not intended to be shown or sent to any third party. Mr Bechelet did not know how the note had come to be in the relevant file, which had been archived in July 2008. Mr Brown found that no other member of the practice had access to the relevant client file, that he was satisfied that Mr Bechelet did not hold homophobic views, and that Mr Bechlet was willing to apologise. Mr Brown was satisfied that his was an isolated incident.

On 6 May 2010 Mr Brown called Mr Bennett’s mobile telephone and left a voicemail. This voicemail confirmed that he had conducted the investigation and that he was seeking to hold “without prejudice” discussions.

On 11 May 2010 Mr Brown wrote to Mr Bennett’s solicitors to state that he was still in the process of investigating the grievance and that he had reached “preliminary conclusions”, but that no final decision had been reached following this initial investigation.

On 26 July 2010 Mr Bennett submitted an Employment Tribunal claim for sexual orientation discrimination. Mr Bennett served a statutory questionnaire on 17 August 2010 and Bivonas LLP agreed on 10 December 2010 to respond to such. However, no response to the questionnaire was received by Mr Bennett.

The Employment Tribunal’s decision

The Employment Tribunal found that Mr Bennett had been directly discriminated against by both the ‘aide-memoire’ and the conduct of the grievance investigation.

With regards to the aide-memoire, the Tribunal found that this was “inherently insulting” to Mr Benneett as a gay man in two respects: firstly, the term “batty boy” was insulting and, secondly, the note implied that Mr Bennett had been passing work to a third party based upon said third party’s sexual orientation (and therefore not on merit) – the Tribunal found that this was a “professional slur of the utmost gravity”. The Tribunal rejected an argument that Mr Bennett had not suffered a detriment because it had not been intended that he read the note; the Tribunal found on this point that simply by committing such thoughts to paper Mr Bechelet had run the risk of a colleague reading it.

With regards to the grievance investigation, the Tribunal found that the grievance was “seriously defective” and identified various failings: the absence of any evidence relating to the investigation (although Mr Brown claimed that he had interviewed a number of witnesses), the rapid conclusion that Mr Bechelet did not hold homophobic views, and the unjustified nature of this conclusion given the wording of the aide-memoire. Further, the Tribunal found that, despite Mr Brown’s statement on 11 May 2010 that the investigation was still continuing, he had concluded his investigation on 6 May 2010. The Tribunal found that Mr Brown should not (by his own admission) have conducted the grievance investigation, given his clear conflict of interest between fully investigating the grievance and protecting the practice.

The Tribunal went on to find that the detriments that he had been subjected to were on the grounds of his sexual orientation (the aide memoire was “insulting on its face”, there was no evidence that any other colleagues had been insulted in respect of their personal attributes or characteristics, and there had been no explanation provided for the note).

Bivonas LLP, Mr Brown, and Mr Bechelet appealed the Tribunal’s conclusions on the basis that the Tribunal had erred in law in holding that the aide-memoire could constitute a detriment and that the Tribunal had incorrectly applied the burden of proof in direct discrimination cases.

The decision of the Employment Appeal Tribunal

The EAT dismissed the appeal.

With respect to the first ground of appeal (that the aide memoire could not constitute a detriment), the EAT found that there was sufficient factual circumstances to allow the Tribunal to conclude that the note constituted a detriment: the wording of the memoire, the fact that a colleague considered it to be serious, and the fact that Mr Brown had gone on sick leave and submitted a complaint the next day – the EAT held that such treatment could be viewed by the reasonable worker as a detriment, given the circumstances.

With respect to the second ground of appeal (that the Tribunal had misapplied the law on the burden of proof in discrimination cases), the EAT found that the failure to conduct an adequate investigation was not an error of law in the Tribunal’s part and that there were sufficient inferences in the circumstances to allow the Tribunal to reverse the burden of proof.

Our solicitors’ comments

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “The conclusions of the Employment Appeal Tribunal in this case are not particularly surprising, given the factual matrix of the case and the Tribunal’s conclusions. What is more surprising is that a note which was derogatory about a colleague was placed in a client file, where said colleague could find it.”

The judgment in the case of Bivonas LLP & others v Bennett can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees

Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk.

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