Thursday 16th February 2012 at 4:31pm

You didn’t want to argue that

Sometimes you read an appeal judgment and just find yourself asking: so why exactly did they appeal that? This was my personal response to the recent EAT decision of Bivonas LLP & Ors v Bennett [2011] EAT 0254/11, in which a firm of solicitors appealed a finding of sexual orientation discrimination on the basis that their gay employee suffered no detriment where another worker wrote that he inappropriately gave work to “his batty boy mate”.

To recap: in order to succeed in establishing a case of direct discrimination a Claimant must show that he has been treated less favourably on a prohibited grounds (section 13(1) Equality Act 2010). Less favourable treatment, or “detriment”, is established if a reasonable worker would or might take the view that the treatment accorded to her had, in all the circumstances, been to her detriment. In particular, despite older cases to the contrary, it is no longer necessary for the Claimant to demonstrate that the detriment caused her a physical or economic loss (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337).

On receipt of the offending note, the Claimant had gone off sick. Any distress his employer caused him was then, no doubt, aggravated by the employer’s decision to carry out a superficial review which for no compelling reason cleared the author of the note of any ill-will. The Employment Appeal Tribunal agreed with the Employment Tribunal that this was plainly a detriment and there was no need for the Tribunal to engage in a painstaking exercise as to how a hypothetical comparator might have been affected by it.

Really, it’s obvious – isn’t it?

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