Bailey v Stonewall Equality Ltd and Others
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2024] EAT 119 |
| Year | 2024 |
| Court | Employment Appeal Tribunal |
2024 May 14, 15; July 24
Discrimination - Prohibited conduct - Causing or inducing contravention - Barristers’ chambers joining charity diversity scheme - Member of chambers expressing views opposing charity’s policies - Complaint by charity prompting chambers’ investigation into member’s conduct - Chambers’ conduct found to be discriminatory - Member claiming charity caused or induced discriminatory treatment - Appropriate mental element for causing or inducing commission of statutory tort - Whether causation to be established on “but for” basis - Whether charity to be held liable -
A barristers’ chambers joined a diversity scheme operated by the first respondent, a charity promoting and advancing LGBT rights. The claimant, a member of chambers, objected to association with the charity in light of its policies on trans rights and gender identity. She later posted statements on social media expressing her opposition to the charity, which prompted complaints to be made to her chambers, including from the charity’s head of trans inclusion. In response, the chambers announced that it would investigate the claimant’s conduct and, following the production of a final report, the claimant was asked by chambers to delete her social media posts, on the basis that they were likely to breach professional standards. The claimant subsequently commenced proceedings, pursuant to section 47(2) of the Equality Act 2010F1, in which she claimed that the chambers had directly discriminated against her based on a protected characteristic, namely her beliefs about sex, gender and her opposition to the policies of the charity; that both the announcement and outcome of the investigation into her conduct had inflicted a detriment on her; and that, by making the complaint that led to the discriminatory treatment, the charity had caused, or induced, the chambers to discriminate against her, contrary to section 111(2) or (3) of the Act. Allowing the claim against the chambers and dismissing the claim against the charity, the tribunal held that nothing in the complaint made by the charity could be construed as causing or inducing the chambers to discriminate against the claimant because of her protected views, since the evidence indicated that the charity had not in fact been looking for any action but had just been making a protest.
On the claimant’s appeal—
Held, dismissing the appeal, that, as they were contained in different subsections of section 111 of the Equality Act 2010, “cause” and “induce” had different meanings, even if there was an overlap; that section 111 did not refer to any mental state, the question of mental state being answered by considering the nature of the prohibited act; that it was in the nature of an inducement that the inducer intended the inducee to carry out an act or omission that contained all the elements of the statutory tort, whereas “causing” in section 111(2) was more apt to cover an act that had unintended consequences; that, in the latter case, a claimant had to show that the respondent’s conduct causally contributed to the discriminator’s commission of the statutory tort on a “but for” basis and that the causal connection was such that it was fair, reasonable or just for the respondent to be held liable; that, although the charity’s complaint was the occasion for the discriminatory treatment, and so could be regarded as causing it in a “but for” sense, responsibility for determining the complaint in a discriminatory way lay only with the chambers, and, for that reason, while there was a nexus between the claimant’s views and the making of the complaint, it would not be reasonable to hold the charity liable; that to be liable under section 111(3) the charity must have intended to induce the chambers to do something that contained all the elements of the statutory tort, but, having weighed all the relevant facts, the employment tribunal had been entitled to decide that the charity neither induced a contravention nor attempted to do so; and that, further, although the claimant’s protected belief significantly influenced the making of the complaint, there was nevertheless a lack of correspondence between the content of the complaint and its outcome, and, therefore, no basis on which to construe the complaint as an inducement to discriminate on grounds of the claimant’s belief (post, paras 100, 101, 104, 105, 106, 116, 123, 131, 139, 141).
The following cases are referred to in the judgment:
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG[
Commission for Racial Equality v Imperial Society of Teachers of Dancing[
Essa v Laing Ltd
Forstater v CGD Europe[
Jones v Tower Boot Co Ltd[
Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5)
Nagarajan v London Regional Transport[
The following additional cases were cited in argument or referred to in the skeleton arguments:
Bougnaoui v Micropole SA
Bullimore v Pothecary Witham Weld[
Higgs v Farmor’s School [2022] EAT 101; [
Kostal UK Ltd v Dunkley
Kuzel v Roche Products Ltd
Omooba v Michael Garrett Associates Ltd (trading as Global Artists)
Page v NHS Trust Development Authority
Pothecary Witham Weld v Bullimore[
Savjani v Inland Revenue Comrs[
R (Miller) v College of Policing
R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department
Uber BV v Aslam
APPEAL from an employment tribunal sitting at London Central
By a decision sent to the parties on 27 July 2022, the employment tribunal dismissed a belief discrimination complaint by the claimant barrister, Ms Allison Bailey, that the first respondent, Stonewall Equality Ltd, through the acts of an employee, caused or induced a basic contravention against her by the second respondent, Garden Court Chambers Ltd, and third respondents, Rajiv Menon KC and Stephanie Harrison KC as representatives of all members of Garden Court Chambers, contrary to section 111 of the Equality Act 2010. By a notice of appeal dated 7 September 2022, the claimant appealed on the grounds that the tribunal erred in law (1) in rejecting the claim for causing a basic contravention by applying the wrong test for causation and/or remoteness under section 111(2) of the 2010 Act; and (2) in its approach to inducement under section 111(3) of the 2010 Act and the salience of the relevant relationship.
The facts are stated in the judgment, post, paras 1–7.
Ben Cooper KC (instructed by
Ijeoma Omambala KC (instructed by
The second and third respondents did not appear and were not represented.
The court took time for consideration.
24 July 2024. BOURNE J handed down the following judgment.
Introduction1 Ms Bailey was the claimant and Stonewall Equality Ltd (“Stonewall”) was the first respondent to proceedings in the employment tribunal (“the ET”, Employment Judge Goodman sitting with lay members) from which this appeal arises.
2 All references in this judgment to the facts of the case are to those found by the ET.
3 Ms Bailey, a barrister, was a member or “tenant” of Garden Court Chambers (“GCC”), practising in crime. She brought her claim against Stonewall and the second respondent, a service company which owns GCC’s premises and employs its administrative staff, and the members of GCC (which is an unincorporated association) as third respondent.
4 Ms Bailey’s claim succeeded against the second and third respondents, who have played no part in this appeal. In particular the ET found that they had directly discriminated against her because of the protected characteristic of belief, contrary to section 47 (read with sections 4, 10 and 13) of the Equality Act 2010 (“the 2010 Act”).
5 Her claim against Stonewall was dismissed, and she now appeals against that order.
6 After a 23-day hearing, the ET gave a long and detailed judgment which determined numerous issues between the parties. The majority of those issues have not been re-opened in this appeal.
7 The appeal concerns Ms Bailey’s claim that Stonewall, through the acts of an employee, caused or induced one of GCC’s discriminatory acts against her contrary to section 111 of the 2010 Act. She contends that the facts as found by the ET were consistent only with a ruling that Stonewall did cause (ground 1) or induce (ground 2) the discrimination.
Statutory framework8 By section 13(1) of the 2010 Act:
“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
9 Protected characteristics are listed in section 4. They include gender reassignment, sex, sexual orientation and religion or belief.
10 “Belief” is defined by section 10(2) as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”.
11 Section 47(2), which is found in Part 5...
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