In this case the EAT upheld a tribunal's decision that Stonewall did not cause or induce Garden Court Chambers to discriminate against one of its barristers.
In 2022, Ms Bailey, a barrister succeeded in a discrimination claim against her Chambers and its members. In particular the tribunal found that she had been discriminated against for holding both gender critical beliefs (that a woman is defined by her sex and not by her gender)and beliefs about gender self-identity including beliefs about Stonewall's campaign on gender self-identity.
Ms Bailey objected when her Chambers became a diversity champion for Stonewall. She was also involved in setting up the Lesbian Gay Alliance, which believes that biological sex matters and that sex should not be replaced with gender. She regularly posted tweets about these issues. Following her tweets members of her Chambers complained. In response the Chambers publicly tweeted that they would investigate and asked Ms Bailey to remove her tweets. After this a Stonewall employee, Kirrin Medcalf, also complained to Ms Bailey's Chambers about the fact it continued to associate itself with her. Mr Medcalf described Ms Bailey as a barrister who "is actively complaining for a reduction in trans rights and equality…". His complaint attached a string of new tweets about Stonewall which Ms Bailey had posted.
Ms Bailey successfully complained to the employment tribunal that her Chambers had discriminated against and victimised her when it publicly announced the investigation because it had determined Stonewall's complaint in a discriminatory way.
Although Ms Bailey won her claim against her Chambers and its members, she failed in her claim against Stonewall that, through Mr Medcalf's actions, it had caused or induced the discrimination (under section 111 of the Equality Act 2010).
Ms Bailey appealed unsuccessfully to the EAT who found that Stonewall had not caused or induced the discrimination against her. In making this finding the EAT set out that:
- In this case the alleged causative act or inducement was Stonewall's complaint against Ms Bailey. The basic contravention of the Equality Act 2010 was the determining of the complaint by her Chambers in a discriminatory way.
- Stonewall's liability did not automatically follow from the fact that their complaint about Ms Bailey had been determined by her Chambers in a discriminatory way: Stonewall needed to have actually caused her Chambers to have committed the discriminatory act because of Ms Bailey's protected characteristic.
- The legal test for causing a discriminatory act is a "but for" test.
- Once causation is established it must be "fair or reasonable or just" for a tribunal to make the third party liable. Here it was not: Stonewall's actions were just a protest, with no specific aim in mind except perhaps a public denial of association with her views, and this protest contained no element of threat.
- The word induce is broadly synonymous with "persuade". This might be verbal persuasion or may involve an element of carrot and stick.
- To be liable Stonewall must have intentionally induced Ms Bailey's Chambers and its members to commit the discriminatory act.
- Here the Stonewall employee who made the complaint did not have the requisite mental intent necessary to have induced the discriminatory act. The responsibility for determining his complaint in a discriminatory way lay with Ms Bailey's Chambers and its members.
What does this means for employers?
The facts of the case remain a reminder that when balancing complaints involving conflicting protected characteristics employers should not publicly pick a side before investigating the facts of complaints. This decision clarifies for the first time when the line between lawful protest by lobbying groups and unlawful inducement will be crossed. Had the EAT decided in Ms Bailey's favour this would have had significant ramifications for Stonewall and other campaign bodies.
