Victimisation Discrimination Case study:
Ms Allison Bailey V (1) Stonewall Equality Limited (2) Garden Court Chambers Limited (3) Rajiv Menon QC and Stephanie Harrison QC.
Case number: 2202172/2020
Allison Bailey is a criminal defence barrister and was at the subject of victimisation discrimination at Garden Court Chambers – the largest barristers’ chambers in London. She has been a tenant for over 20 years and is the founder of the charity LGB Alliance and holds gender critical beliefs. Her chambers was at the relevant time a member of the ‘Diversity Champions scheme’ run by the charity Stonewall. Ms Bailey opposed the scheme and was subject to investigation by her chambers as a result of her involvement with LGB Alliance. Ms Bailey claimed that she was given less work by her chambers as a result of her gender critical beliefs, which are protected under the Equality Act 2010 following the decision of the Employment Appeal Tribunal in Maya Forstater v CGD Europe and Others UKEAT/0105/20/JOJ.
She issued proceedings in the Employment Tribunal against both Garden Court Chambers and Stonewall. Her claims against Garden Court Chambers were victimisation discrimination, direct belief discrimination, and indirect discrimination based on her gender and lesbian sexual orientation. She claimed that Stonewall instructed, caused, or induced Garden Court Chambers’ alleged unlawful conduct.
Today, the Employment Tribunal handed down its judgement, which decided in favour of Ms Bailey’s claims against Garden Court Chambers, but rejected her claims against Stonewall. Ms Bailey instructed Peter Daly of Doyle Clayton Solicitors Limited and was represented in the proceedings by Ben Cooper QC of Old Square Chambers.
The Claimant (‘C’), Allison Bailey, works as a criminal defence barrister at Garden Court Chambers in London. The First Respondent (‘R1’), Stonewall Equality Limited, is a charity that advocates for LGBT rights. The Second Respondent (‘R2’), Garden Court Chambers Limited, is the service company of Garden Court Chambers. It employs the clerks and staff that work at Garden Court Chambers. The Third Respondent (‘R3’) is Garden Court Chambers, sued in a representative capacity because it is an unincorporated association made up of the barristers working at the chambers. R2 and R3 were jointly represented and are referred to jointly in this article as R2.
On 14 December 2018, R1 became a member of R2’s Diversity Champions scheme. C had concerns about R1’s membership of the scheme, which she felt would allow R2 to “police the opinions and views of individuals whose organisations (such as mine) had joined the scheme”. She was concerned with a number of R2’s positions, including that ‘trans women are women’ and therefore it is morally wrong for natal-female lesbians to reject as a category transwomen as sexual partners (referred to as the ‘cotton ceiling’). C considered this homophobic. She was also concerned about R2’s position regarding transwomen’s entry into female prisons, women’s sport, and women’s changing rooms.
In reply to an email confirming to all members of R2 that chambers had joined the scheme, C sent the following:
“I emphatically object to any formal association with Stonewall. Any proposed association with Stonewall should be a matter for chambers to consider. It should not go through on the nod. There are many of us within the LGBT community who fully support trans rights but who do not support the trans-extremism that is currently being advocated by Stonewall and others in respect of the proposal for self-id under revised GRA. Stonewall has been complicit in supporting a campaign of harassment, intimidation and threats made to anyone who questions its trans self-ID ideology especially lesbians and feminists. Those who object or even question the Stonewall self-id ideology have and continue to be threatened, often with rape and serious violence – by self-id trans women. This needs to be looked at again – urgently”.
A series of emails followed from other members of R2, denouncing or distancing themselves from C’s comments. C alleged that because of her complaint, R2 gave her less work, which caused her income to fall.
On 22 October 2019, C tweeted about the launch of LGB Alliance. The tweet “generated a strong reaction on Twitter, some of which was specifically directed at Garden Court”. R2 received a number of complaints regarding C’s tweet. In response to complaints about C’s tweet, R2 contacted C and requested that C remove from her Twitter bio the reference to R2, which C did. Without prior notification to C, R2 tweeted that C was under investigation. C later discovered that one of the complaints the investigation had been initiated in response to was from R1. The investigation outcome upheld the complaints against C, which determined that some of C’s tweets were likely in breach of the Bar Standards Board Code.
On 20 January 2020 C submitted a Subject Access Request to R2 for all data held relating to her. R2 did not immediately provide all relevant data, asserting that the SAR had only been made to the service company, and that some documents were privileged. C subsequently requested data from barrister members of the chambers, and also separately from R1.
C brought claims in the Employment Tribunal, against R2 for victimisation discrimination, direct belief discrimination, and indirect discrimination based on her sex and lesbian sexual orientation, and against R1 for instructing, causing, or inducing R2’s alleged unlawful conduct. C alleged that R2 had caused her the following detriments:
- Withholding instructions and work in 2019, causing C financial loss.
- Publishing a statement stating that C was under investigation.
- R1’s complaint to R2, which C alleged was invited / colluded in by a member of R2.
- Upholding the complaint by R2.
- R2’s failure to comply with the Subject Access Requests.
Employment Tribunal decision
The case was heard before a panel led by EJ Goodman in April and May 2022, and was attended by a significant number of members of the public and press. Judgement was dated 25 July 2022 and published on 27 July 2022.
The ET found that R1 had not been libale to victimisation discrimination against C as it had not ‘instructed, caused or influenced’ R2 to unlawfully discriminate against C.
The ET did however, find that R2 had been liable to victimisation discrimination against C because of her gender critical beliefs. In relation to the five detriments alleged, the ET found that the second and fourth were made out, but the first, third and fifth were not.
In relation to the claims of indirect discrimination, the ET did not find that R2 had indirectly discriminated against C on the grounds that R2 treated C’s gender critical beliefs as bigoted. It also found “there was no evidence whatsoever that Stonewall [R1] directed Garden Court’s [R2’s] investigation process”.
R2 was ordered to pay damages for injury to feelings, including aggravated damages and interest.
This is undoubtedly a high-profile judgement. Beyond generating a lot of heat and discussion in legal circles, it contains a notable extension of the protection afforded to gender critical beliefs following the decision in the Maya Forstater case. The ET determined that the legal protection under the Equality Act includes the belief that “gender theory as proselytised by [R1] is severely detrimental to women [and] … to lesbians”.
Individuals will now be afforded legal protection for speaking out against the work of organisations like Stonewall. This may encourage those who have previously felt reticent about voicing their opinion to now do so within other organisations. Despite the fact that the ET did not uphold any of the claims against Stonewell, the judgement may also cause organisations that are still affiliated to rethink their relationship with it and their membership of the Diversity Champions scheme.
Lord Sumption argued in his 2019 Reith Lecture that the ‘decline of politics’ should not be filled by the law. Ultimately, trans-rights and gender critical beliefs are still topics of fierce debate and should be left to the political sphere to reconcile. Politicisation of the judiciary must be avoided, if it is not to evolve into something like the current sorry US system. There are many more cases concerning gender critical individuals being at the forefront of victimisation discrimination working their way through the system, and it seems inevitable that with each new judgement in this area one ‘side’ will claim victory without moving the public conversation forward.
However, until that public conversation has reached a consensus, organisations must be careful in the way they navigate opposing beliefs. Peter Daly, Allison Bailey’s solicitor, in discussing his thoughts on the case stated:
“If we want political and philosophical debate to cross the threshold of our organisations and workplaces – if we want staff to “bring their whole selves to work” – then we need to understand that beliefs, and the rights inherent in those beliefs, will inevitably conflict in the workplace. A homogenous moral code is incapable of navigating those conflicts. Instead, the beliefs themselves – both as held by the organisation and by the would-be apostate – need to be interrogated and understood. There is no short-cut to this, either by a lazy and subjective assessment of subjective offensiveness or otherwise.”
Rational discussion may be difficult where the issue is so entrenched and one side views dissent as akin to racism. Regardless, organisations must legally be places where these beliefs coexist. Subjecting people to detriment for gender critical beliefs is unlawful, and may also cause damage to an organisation’s reputation and the breakdown of a collegiate atmosphere. Those that are not able or refuse to reach this balance will be liable.
This blog was written by Matthew Manso de Zuniga, Paralegal at didlaw.