Bivonas LLP & Ors v Bennett (Sexual Orientation Discrimination or Transexualism)

An insult may constitute a detriment in discrimination law where, taking all the circumstances into account, a reasonable worker would or might regard the treatment as disadvantageous. No physical or economic consequence is required. Where the facts are plainly insulting and discriminatory, the tribunal need not construct a hypothetical reasonable worker or speculate about the response.

Under regulation 29(2) of the Employment Equality (Sexual Orientation) Regulations 2003, the burden shifts where the claimant proves facts from which discrimination could be inferred without an adequate explanation. The respondent must then prove that the unlawful act was not committed.

The respondent, a gay barrister employed by a small solicitors’ practice, complained about a handwritten aide-memoire containing homophobic language and about the handling of his grievance. The Employment Tribunal found that the aide-memoire was a detriment contrary to regulation 6(2)(g) of the Employment Equality (Sexual Orientation) Regulations 2003, and that the grievance investigation was seriously defective and discriminatory.

The employers appealed, arguing that an insult could not itself amount to a detriment and that the Tribunal had reversed the burden of proof without first establishing a prima facie case. The central issues were the meaning of detriment and whether the statutory burden had properly shifted.

1. Appeal dismissed. The Employment Tribunal had correctly applied the law relating to detriment and the reverse burden of proof.
2. Following Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, detriment has a broad meaning. The question is whether, in the employment context and taking all the circumstances into account, a reasonable worker would or might regard the treatment as disadvantageous. Physical or economic loss is unnecessary.
3. The Tribunal was entitled to find that the aide-memoire was plainly insulting to the respondent as a gay man and contained a serious professional slur. The circumstances included the wording, the manner in which it was discovered, the immediate consequences for the respondent and the effect on trust and confidence. Given the clarity of those facts, no separate hypothetical exercise was required.
4. The Tribunal had adequate grounds to reverse the burden under regulation 29(2) of the Employment Equality (Sexual Orientation) Regulations 2003. Applying the two-stage approach in Igen v Wong [2005] IRLR 258, the relevant matters included the discriminatory aide-memoire, the rushed and inadequate investigation, the investigator’s conflict of interest, inconsistent evidence, limited failure to answer the questionnaire and the absence of an adequate explanation.
5. Once the burden shifted, the employers had to prove that the respondent’s sexual orientation played no part in the grievance investigation. The Tribunal was entitled to conclude that they had failed to do so.

• Employment Tribunal: Found unlawful sexual orientation discrimination concerning the aide-memoire and grievance investigation.
• Employment Appeal Tribunal: Dismissed the appeal and upheld the Tribunal’s conclusions.