In Bailey v Stonewall Equality & Ors the Employment Appeal Tribunal (EAT) has determined that the Employment Tribunal (ET) was correct to reject Ms Bailey’s claim that Stonewall, the LGBT campaign charity, had caused or induced Garden Court Chambers (GCC) to discriminate against her on the grounds of her gender critical beliefs.
The ET held that that the ‘inducement’, being a complaint made by Stonewall to GCC, was motivated by Ms Bailey’s protected beliefs but that the complaint was made as a ‘protest’ and ‘without any specific aim in mind’ save for seeking a public denial of GCC’s association with her views. In their view the complaint did not contain any element of threat. Therefore, it was considered that these facts were insufficient to satisfy the test for ‘inducing’ or ‘causing’ an act of discrimination in breach of section 111 of the Equality Act 2010 (EqA 2010).
As some will know, Ms Bailey was a barrister at GCC. In November 2018 the Chambers had signed up to the Diversity Chambers programme run by Stonewall. When GCC announced its membership of the programme, Ms Bailey responded, setting out her objections that whilst she supported trans rights, she considered Stonewall was, by virtue of its reform proposals, promoting trans-extremism.
In October 2019 Ms Bailey was instrumental in setting up LGB Alliance, a charity with gender critical principles. Her associated tweets led to complaints being made to GCC about the compatibility of her views with the support of trans rights. GCC publicly confirmed it would investigate. Following a complaint made by Stonewall the issue was investigated and the complaint upheld in respect of two of Ms Bailey’s statements. Following this Ms Bailey pursued claims in the Employment Tribunal on the following grounds:
- GCC had directly discriminated against her because of her philosophical beliefs/victimised her.
- GCC had indirectly discriminated against her.
- Stonewall had instructed, caused or induced discrimination by GCC (or attempted to do so), contrary to s111 EqA 2010.
- That the relationship between Stonewall and GCC under the Diversity Champions programme fell within the scope of s111 EqA, (relying on the complaint that Stonewall had made to GCC about her tweets).
An Employment Tribunal found that GCC had directly discriminated against Ms Bailey because of her protected gender critical beliefs. It found that GCC had subjected Ms Bailey to two detriments:
- In the tweet stating that it would investigate her conduct; and
- In the outcome of the investigation.
The claim in relation to Stonewall under s111 EqA 2010 was rejected on the basis that the complaint made was not sufficient to amount to an inducement, or attempted inducement of any particular action taken by GCC.
Ms Bailey appealed to the EAT. The EAT dismissed B’s appeal. Here it was said that in Ms Bailey’s case the alleged inducement (cause of action) was Stonewall’s complaint to GCC and the contravention by GCC was its discriminatory decision in respect of the complaint. The ET found that the facts of this case did not compel the conclusion that it was likely that, when determining the complaint, GCC would be significantly influenced by Ms Bailey’s belief. On the ET’s findings of fact, it was not bound to conclude that it was fair or reasonable or just to find Stonewall liable. Although the complaint was a but for cause of the eventual outcome, responsibility for determining the complaint in a discriminatory way lay only with GCC.
I consider this case will go up the Court of Appeal with further scrutiny applied to both the motivation of Stonewall and the impact that its complaint had on GCC’s decision making. Claims under s111 EqA 2010 are rare (in my experience) so it will be legally fascinating to see this case be reconsidered in a higher court.
This blog was written by Elizabeth McGlone, Partner at didlaw.
