A note on Bailey v Stonewall and an update

Hi everyone,

Some of you will have noticed that my promised overview of Peggie v RCN hasn’t happened yet. I fully intend to organise a time for that, but I have had to slow down a bit lately due to unexpected health issues cropping up over the last few weeks. I’m doing very well now and expect to be back to full form in the near future.

Thankfully, I have some good news to share as well. A paper I’ve written analysing the Court of Appeal decision in Bailey v Stonewall has been accepted for publication in the UK’s leading employment law journal, The Industrial Law Journal.

Allison Bailey, as many of you will know, was unlawfully discriminated against by her barristers’ chambers, Garden Court Chambers, for holding and expressing protected gender critical beliefs. When she brought a legal challenge to this discrimination, she also sued Stonewall for instructing, inducing, or causing her chambers to discriminate against her. In response to tweets from Bailey expressing criticism of Stonewall’s advocacy for self-ID in law, Kirrin Medcalf, head of trans inclusion at Stonewall, sent the following to her chambers:

Garden Court barristers have always been allies to trans people and to Stonewall, which is something we are very proud and grateful for. However, for Garden Court Chambers to continue associating with a barrister who is actively campaigning for a reduction in trans rights and equality, while also specifically targeting members of our staff with transphobic abuse on a public platform, puts us in a difficult position with yourselves: the safety of our staff and community will always be Stonewalls first priority.

I trust that you will do what is right and stand in solidarity with trans people.

Bailey argued that this letter caused Garden Court Chambers to discriminate against her, thereby constituting a tort under s.111 of the Equality Act 2010. In the Employment Tribunal, Employment Appeal Tribunal and Court of Appeal, she has been unsuccessful on this point. In March of next year, the Supreme Court will hear her appeal.

This paper examines the Court of Appeal judgment and argues that it has erred in its legal analysis. Here is the abstract:

In Bailey v Stonewall and Garden Court Chambers, the Court of Appeal considered the torts of instructing, inducing and causing another to discriminate contrary to the Equality Act 2010. It made significant and unorthodox findings as to how questions of causation in relation to discrimination torts must be determined. These rulings fail to recognise the full implication of the fact that the tort of causing another to discriminate is a primary wrong, with questions of causation in relation to it falling to be assessed by reference to the tort itself, not some other contravention of the Act. This is the first time the Supreme Court will consider the s. 111 torts. It provides an opportunity to set down a clear test that recognises these torts as primary wrongs in their own right and that they should be informed by a robust understanding of the EA's aim to eliminate wrongful discrimination in the areas the Act regulates. The Court of Appeal’s decision in Bailey rests on a premise that the Supreme Court should reject: that the question of liability under s.111 can be answered by asking who bears responsibility for a basic contravention of the EA. Section 111 creates primary wrongs. They can be made out where no basic contravention occurs, and they attract their own measure of damages, so they cannot be treated as parasitic on the contravention they concern.