'Bastard defence' is no defence, say lawyers
Cantor was suing rival ICAP for poaching three of its staff. Two of the three were counter-suing Cantor for constructive dismissal, saying that they were treated so badly they were forced to leave. Cantor won its case with regard to one of the three, but still faces paying possible damages for constructive dismissal to two of them.
A bastard defence is when an employer argues that a particular employee was not singled out for poor treatment, but that everyone in the organisation is treated equally badly. The judge in the Cantor case castigated top managers at Cantor for their "disgraceful" behaviour and said it treated its staff in a way that probably breached their contractual rights.
Paul White an employment lawyer at City of London solicitors Stephenson Harwood said that the judge's comments mean that banks will find it harder to point to a general culture of unpleasantness as evidence that a single individual was not bullied in a constructive dismissal case or singled out for their race or gender in discrimination cases.
Naomi Feinstein, an employment lawyer at Lovells, said that the 'bastard defence' dates back to the Zafar case of 1995, in which Strathclyde City Council countered a claim of race discrimination by saying that it treated everyone equally unreasonably. The defence subsequently became popular in financial services.
This strategy was attempted, for example, in last year's 'Nazi Uniform' case. A Jewish employee who had been handed a Nazi uniform claimed racial discrimination; his employer, the broker Tullett & Tokyo Liberty sought to defend itself by pointing out that other employees had also been made to dress up in outfits equally likely to cause personal offence.
Feinstein says that the 'bastard defence' is often one of the only methods of recourse for employers faced with substantive evidence of discrimination. Employers can only be found guilty if it can be proven that discrimination was on the basis of race or sex; discriminating against everyone suggests that it wasn't.
However Feinstein says that feeling has been moving against the strategy for some time. Treating everyone badly is not a valid defence and employers should not be protected simply because they ignore everyone's rights.
Stephenson Harwood's White says that after the comments made by the judge in the Cantor Fitzgerald case, investment banks will have to do much more to improve the culture on the trading floor to avoid losing future claims of discrimination.
