Bailey v Stonewall and Garden Court Chambers

Did Stonewall cause discrimination?

This is the second post discussing the case of Bailey v Stonewall and Garden Court Chambers. The first post focused on the Employment Tribunal decision and the claim of direct discrimination on the part of Garden Court Chambers (GCC). That case also involved a claim against Stonewall that it unlawfully caused or induced Garden Court Chambers to discriminate against Bailey. This was dismissed at the Employment Tribunal Stage and appealed to the Employment Appeal Tribunal which handed down judgment yesterday. You can read the full judgment here.

The Employment Tribunal Decision

One of the claims brought in the initial Tribunal case was against Stonewall, arguing that it had engaged in a statutory tort prohibited under s.111 of the Equality Act 2010:

Specifically, Bailey argued that Stonewall instructed or caused or induced GCC to discriminate against her. In the alternative she argued that they attempted to cause or induce contraventions of the Equality Act against her.

In order for this claim to succeed Stonewall must be in the kind of relationship with GCC that would make Stonewall liable for breaches of the Equality Act if it had acted against GCC. That test was satisfied because Stonewall is a service provider for GCC, partially in relation to it’s ‘Diversity Champion Scheme’ which was summarised by the Employment Tribunal as follows [61]:

“In return for an annual fee of £2,500, Diversity Champions received a dedicated account manager to advise on best practice and conduct client meetings with Garden Court Chambers stakeholder groups, free places at Stonewall best practice seminars, use of the Stonewall Diversity Champions logo, free copies of Stonewall research publications, discounted rates for Stonewall conferences, and ‘regular networking opportunities with the other 750 member organisations’. The declared aim of the scheme was to develop inclusive workplaces.”

In October 2019, GCC’s premises were used as a venue for TON (Trans Organisational Network) organised by Shaan Knan, employed by LGBT Consortium to run TON. The meeting was attended by representatives of various groups, including Kirrin Medcalf on behalf of Stonewall. At the meeting Knan encouraged those present to write to GCC to complain about Alison Bailey’s tweets and referred to a meeting of the GCC management committee which would be taking place in the next week or so to discuss if any formal action against Bailey could be taken.

Before Stonewall made any complaint to GCC, GCC sent out the ‘response tweet’ indicating that Bailey would be investigated - an act which constituted direct discrimination on the basis of her protected beliefs. While the report of the initial complaint was being drafted, Kirrin Medcalf had sent in a separate complaint, relying on the existing relationship with GCC and noting that

“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 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 Stonewall’s first priority’.

This complaint included taking issue with the fact that Bailey described Stonewall’s campaigning as “trans extremism” and the accusation that Stonewall engaged in “appalling levels of intimidation, fear and coercion”.

This complaint along with several Tweets that Bailey had made about Stonewall were sent to Maya Sikand, the member of chambers responsible for investigating her, who initially decided that this complaint should be considered separately, having already decided that the initial complaint pertained to conduct which was “deliberatively provocative” but not transphobic and not in breach of the Bar Standards Boards or social media policy. She was persuaded by Stephanie Harrison QC, a senior member of chambers, to deal with everything in one report to avoid negative publicity [41].

Sikand then invited Bailey to respond to this new complaint which she did at length. Harrison then sought advice from the Bar Council’s Ethics Committee on whether the tweets in Stonewall’s complaint breached a core duty on barristers. The advice from the Ethics Commits was that this “may well depend on whether the truth of them can be substantiated or, at least, whether they amount to legitimate comment on the underlying facts”.

However, when asked whether GCC could “identify the material on which Allison was commenting” Harrison did not provide Bailey’s response to the complaint and simply asked: “On the premise that there is nothing sufficient to substantiate the allegation of coercion what is your view?” The Ethic Committee responded that if Bailey could not substantiate the assertions made in her tweets, she may be at risk of breaching a core duty on barristers.

Sikand drafted a final report and showed it to the Heads of Chambers. In it, she concluded that there was a risk of a breach of the core duties. Harrison suggested that she should say that the tweets were “likely” to breach the BSB guidelines and this is what the final report stated. This was held by the Employment Tribunal to constitute unlawful discrimination, particularly in light of Harrison telling the Ethics Committee that Bailey did not have material to support her assertions:

“Ms Harrison had already demonstrated her opposition to the claimant’s views about trans rights and about Stonewall, and had herself recognised that she should not be involved. It is hard not to infer that her own view on gender critical feminism as hostility to trans rights played a part in this decision. Maya Sikand, initially neutral, had shown hostility to the claimant’s 2 November tweets about Stonewall (tweet 10), and seems to have been influenced by Garden Court being a Diversity Champion, though Kirrin Medcalf’s complaint made no mention of this. From this we can infer that disapproval of the claimant’s beliefs about Stonewall informed her sense that there must be some breach of the core duties here.”

The question that remains is whether the complaint from Kirrin Medcalf on behalf of Stonewall amounted to an attempt to instruct, cause, or induce discrimination by GCC against Bailey.

The Employment made several important conclusions in this regard. Firstly, there wasn’t sufficient evidence to establish that Medcalf knew that GCC were Stonewall Diversity Champions [374]. Secondly, the Stonewall complaint contained nothing in the nature of an instruction to GCC to discriminate against Bailey because of her protected views, and nothing in the nature of an inducement, actual or attempted [373]. Thirdly, GCC did not themselves see the complaint as an inducement [376]. Finally, the Stonewall complaint did not cause the discrimination in the sense required by s.111 of the Act [377]:

“As for causing, in the ‘but for’ sense it is true that if Kirrin Medcalf had not written, Maya Sikand’s report would have been limited to the original batch referred, which she would have dismissed without investigation. The email was the occasion of the report, no more. Was the letter an attempt to cause discrimination against the claimant? We concluded that it was no more than protest, with an appeal to a perceived ally in a ‘them and us’ debate.”

The Employment Appeal Tribunal Decision

On appeal Bailey argued that the claim under s.111 was bound to succeed and therefore that the Employment Tribunal erred in law. This arguments rests of four basic facts which were found by the Employment Tribunal:

1. Kirrin Medcalf on behalf of Stonewall (person A under the section) made a

   complaint to GCC (person B) about, and because of, the beliefs of Ms Bailey (person C) and/or her reasonable expression of them.

2. In partly upholding that complaint, GCC directly against Ms Bailey

   because of her beliefs and the expression of them.

3. GCC was influenced by the relationship between itself and Stonewall, which

   relationship brought Stonewall within the scope of section 111.

4. But for the making of that complaint, GCC would not have discriminated against Ms Bailey in that way.

The central questions to be decided at this stage are what legal meaning attaches to the words “instruct”, “cause” and “induce” when used in the context of s.111. Some of this will depend upon the mental state of A. For example, to ‘instruct’ A must intend B to do something specific to C. This being said, while there is no requirement that A be aware that the instructed act is unlawful, they must be aware of exactly what it is they are instructing B to do, and for this to contravene s.111(1), it must contain all of the elements of the statutory tort that B would commit following the instruction [101]:

“So if, for example, the statutory tort is direct discrimination, then person A must instruct person B not merely to treat person C less favourably than he treats or would treat others, but must instruct person C to do so because of a protected characteristic. If, on the other hand, the statutory tort is indirect discrimination, then person A must simply instruct person B to apply a PCP which contravenes section 19. Since person B can be liable without knowing or intending that the PCP has that effect, so can person A.”

In the context of this case, this would mean that Stonewall would need to have instructed Garden Court Chambers to treat Alison Bailey less favourably because of her protected beliefs in the importance of biological sex and the detrimental impact that Stonewall’s campaigning has had on the rights of women and sexual minorities.

Similarly, for s.111(3), it would need to be established that Stonewall induced Garden Court Chambers to treat Alison Bailey less favourably because of her protected beliefs. The EAT concluded that “induce” is broadly synonymous with “persuade” for the purposes of s.111(3) and could consist in pure verbal persuasion or an element of “carrot or stick” incentives or disincentives [105].

Similar to “instruct” inducement requires A to intend B to do what A is inducing B to do, even if this is not an explicit instruction. Inducement can be verbal persuasion with or without incentives without amounting to an explicit instruction. Both inducement and instruction therefore require intention on the part of A that B engages in conduct which, whether A knows it or not, is a basic contravention of the Equality Act.

In analysing the meaning of “cause” for the purposes of s.111(2), the EAT concluded that this involves a two-stage test involving inquiry into:

1. whether the wrongful conduct causally contributed to the loss on a “but for” basis, and

2. the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable.

Importantly, there is no requirement that A had any intention that B would discriminate against C here. What matters is only that A’s actions caused B to do so. The discrimination could be an unintended consequence and nevertheless be caused by A in the sense required by s.111(2).

When assessing whether Stonewall caused GCC to discriminate against Bailey, therefore the EAT concluded that it must have regard to what is fair and reasonable to hold Stonewall liable, bearing in mind the intention of Parliament of rooting out and eradicating discrimination on proscribed grounds.

The ET found at [369] that Kirrin Medcalf’s explanation for making the complaint was that “he was writing to protest about her views … and put the case for transgendered people” and that “he wrote without any specific aim in mind except perhaps a public denial of association with her views”. The EAT concluded from this that Stonewalls actions were significantly influenced by Bailey’s protected beliefs.

Nevertheless, this does not mean that these actions caused GCC to discriminate against Bailey [131]:

The key point was that responsibility for determining the complaint in a discriminatory way lay only with GCC. For that reason, although Kirrin Medcalf’s complaint was the “occasion” for it happening (and so could be regarded as causing it in a “but for” sense), and although there was a nexus between Ms Bailey’s views and the making of the complaint, it would not be reasonable to hold Stonewall liable for that discriminatory outcome.

In coming to this conclusion, the EAT expressly bore in mind the fact that Medcalf’s beliefs were themselves protected under the Equality Act as a philosophical belief similar to gender identity belief. As such, the EAT characterised the complaint as a protest manifesting a protected belief and noted that “it would be surprising if a mere protest based on them were itself a contravention of the same Act” [132].

The EAT therefore concluded that none of the statutory torts set out in s.111 were satisfied in this case. Stonewall did not instruct or induce Garden Court Chambers to discriminate against Bailey because there was no established intention for that to occur and it did not cause the discrimination because it would not be fair, reasonable, or just to impose liability for the discrimination because the responsibility for that should rest solely with Garden Court Chambers.

Analysis

There is a lot to say about this decision, specifically as it pertains to what an appellate tribunal should be able to do in terms of creative addition to bolster the analysis (or lack of analysis) of a lower tribunal. The following comments will focus more on the legal tests set out for interpreting s.111 and their application to the facts of this case.

Firstly, I think that much of what the EAT says here is sensible and correct as a matter of statutory interpretation. It was right to stress that the interpretation of s.111 should be guided by the purpose of the Act which is to eliminate discrimination. That should direct interpretation away from creating loopholes for liability.

Secondly, the EAT was correct to stress that discrimination law does not focus on the motive of the duty-bearer. The ‘because of’ test for direct discrimination does not, as per Nagarajan v London Regional Transport [1999] ICR 877 require that the discriminator has conscious discriminatory motives so long as a significant cause of the less favourable treatment is the protected characteristic in question.

I also think that the EAT was right to reject the ‘reasonable foreseeability’ test proposed by Ben Cooper KC. That would have concluded that A caused B to discriminate against C where

1. B’s discrimination against C would not have occurred bur for the conduct of A, and

2. B’s discrimination against C was reasonably foreseeable at the time of As conduct.

In my view this is an unnecessary addition to the legislative framework. I can understand why it was proposed - a ‘but for’ causation might lead to cases where, on a normative view, it really wouldn’t be fair to impose liability even if as a matter of fact the discrimination would not have occurred were it not for the actions of A. For example, if Stonewall has written to Garden Court Chambers to praise Alison Bailey’s defence of LGB rights and the Heads of Chambers responded by discriminating against her for holding gender critical views. In that scenario, as a matter of fact, Garden Court Chambers would not have discriminated against Bailey but for the conduct of Stonewall. Yet it seems wholly obvious that Parliament did not intend s.111 to apply liability for causing discrimination in that sense.

It therefore seems reasonable and defensible in my view for the EAT to adopt the approach that it did, but with an important caveat. S.111 presumes that B is responsible for the discrimination against C. Liability for discrimination cannot be imposed of B is not responsible for discrimination that is based on the protected characteristic of the claimant. If this is the premise, then that must be accounted for when assessing whether causation obtains and it cannot be said that the fact that responsibility rested with GCC is sufficient to absolve A of any liability for causing B to discriminate. More by way of analysis is needed here. The mere fact of a causal relationship is likely not sufficient to establish liability, but equally the mere fact that B is responsible for the discrimination cannot be sufficient to absolve A of liability either.

In my view, more searching scrutiny of the conduct of A is required. This cannot be scrutiny into discriminatory intention or motive, as these are not necessary for liability under s.111(2). Nor can the focus here be on the harm caused, since the harm in question here is the act of unlawful discrimination and that has already been established. I think the EAT is right to conclude that the question is whether it is fair, reasonable, and just to impose liability. Where I think it has gone astray is in tying that to responsibility for discrimination and away from whether the conduct in question is itself culpable.

So what exactly did Stonewall do? It wrote to Garden Court Chambers complaining about the fact that someone GCC owes duties of non-discrimination to had manifested her protected beliefs in a way that Stonewall took offence to. It described Bailey and her protected views in a way that would have amounted to harassment had Stonewall been her employer and made specific reference to the nature of the relationship between Stonewall and GCC being undermined if GCC continued to associate with her. If Garden Court Chambers spoken about Alison Bailey the way that Stonewall was, it would have been in clear breach of the Equality Act. That cannot be ignored when considering the purpose of s.111 is to eliminate exactly this kind of conduct.

The Employment Tribunal and the Employment Appeal Tribunal described what Stonewall did here as no more than a protest. But it must be asked, a protest of what? The protest was of Alison Bailey’s protected views and her protected manifestation of them.

Compare this to a “protest” against a company employing a muslim. Imagine if Stonewall had “protested” at a barristers chambers continuing to associate with a muslim woman because of her protected beliefs about marriage being a heterosexual union between one man and one woman. Imagine if Stonewall framed this as homophobia and wrote to Garden Court Chambers to protest at their association with this woman. Then imagine if Chambers opened an investigation and discriminatorily found that this barrister was likely to be in breach of the Bar Standards Boards ethics code. Surely ‘protest’ in this sense can amount to causation for the purposes of s.111(2).

What matters here is not whether this conduct amounted to protests. It is whether this conduct amounted to the kind of protests that would culpably be classified as having caused another to discriminate against the claimant.

The EAT framed this as though what Medcalf was doing in writing to Garden Court Chambers was merely manifesting his protected beliefs and that it would be counterintuitive to conclude that he would be engaging in unlawful conduct for doing something which is protected under the act. But Medcalf was not simply expressing protected beliefs, he complained about Bailey’s beliefs and stated clearly that the continuing association with her was an issue.

It is here where the distinct nature of Bailey’s beliefs become relevant. Alison Bailey did not just hold gender critical beliefs. She also held views about the moral impermissibility of Stonewall’s campaigning by virtue of it being, in her view, homophobic and sexist. That is a view that she is entitled to hold and to manifest free from discrimination or harassment. But it is also a view that could itself amount to unlawful conduct, if used to justify or motivate an attempt to induce, cause, or instruct another to discriminate against an employee of Stonewall, given the accepted view of several tribunals that gender identity belief is also protected.

A belief being protected under the Equality Act does not magically absolve its holder of obligations under the Act. If Medcalf was ‘protesting’ in a manner that was inspired by or even manifesting his protected belief, but which amounted to conduct that contravened the Equality Act, then that conduct is still in contravention of the Act.

The belief that gay relationships are sinful is protected under the Equality Act. That does not give licence to those who hold that belief to discriminate against or harass gay people. Crucially, it also doesn’t give licence to instruct, cause, or induce another to discriminate against someone because they are gay either. The mere fact that someone was engaging in conduct that was inspirited by or manifested a protected belief does not resolve the question of whether it would nevertheless be fair, reasonable and just to impose liability for causing another to discriminate unlawfully.

So, while I agree with the EAT in terms of the legal test that were appropriate for this case, I disagree with their application to these facts. In my view, there is more than enough evidence to establish that Medcalf and by extension Stonewall behaved culpably such that it would have been fair, reasonable, and just to hold them liable for the discrimination they caused Garden Court Chambers to engage in.