Bailey v Stonewall goes to the Court of Appeal

The Court of Appeal has granted permission to hear the appeal from Alison Bailey in her claim against stonewall. This is a significant development in the law relating the prohibition on instructing, causing or inducing discrimination prohibited under s111 of the Equality Act 2010.

In granting permission, Rt Hon Lord Justice Singh found that the grounds of appeal lodged:

“have a real prospect of success but, in any event, raise issues of some general importance which should be considered by this Court. In particular, an issue arises as to the correct interpretation of section 111 of the Equality Act 2010 which does not seem to be the subject of previous authority. There is therefore a compelling reason to grant permission to appeal.”

This is an important and, in my view, revealing statement. Permission is rarely granted to appeal to the Court of Appeal and then only where there is a real prospect of success, or where there is some other compelling reason for the case to be heard. In this case, Bailey has satisfied both tests, indicating the significance of this case both in terms of the development of legal doctrine and in terms of the practical impact that this judgement could have on the potential liability faced by organisations that engage in EDI training that encourages, causes, or induces employers or other duty-bearers to discriminate against employees or other rights-bearers with protected beliefs.

I’ve written previously about this case as it was happening but it’s worth reiterating here how the initial case developed the law relating to the protection of gender critical belief and the potential of this appeal to substantiate the meaning of s111 EqA.

A development in Gender Critical Belief:

Allison Bailey had tweeted opposition to Stonewall, a charity and advocacy group campaigning to introduce legal and policy change to reflect gender identity theory. She was also involved in setting up LGB Alliance, a charity and advocacy group campaigning in opposition to gender identity theory, with particular focus on sexual orientation. When complaints were made to Garden Court Chambers, it tweeted:

‘we are investigating concerns about Allison Bailey’s comments in line with our complaints/BSB policies. We take these concerns very seriously and will take all appropriate action. Her views are expressed in a personal capacity and do not represent a position adopted by Garden Court. Garden Court Chambers is proud of its long-standing commitment to promoting equality, fighting discrimination and defending human rights’.

Following the investigation, the complaint was upheld and Bailey sued for belief discrimination. Her belief was considerably more granulated than Forstater’s and focused heavily on Stonewall. She believed that Stonewall’s “campaigning on gender theory is sexist and homophobic”. [279]^⁠. Specifically this belief included the following:

“(a) Sex is real and observable. Gender (as proselytised by [Stonewall]) is a subjective identity: immeasurable, unobservable and with no objective basis.

(b) At the root of [Stonewall]’s espousal of gender theory is the slogan that “Trans Women Are Women”. This is advanced literally, meaning that a person born as a man who identifies as a woman literally becomes a woman for all purposes and in all circumstances purely and exclusively on the basis of their chosen identity. To all intents and purposes, the First Respondent has reclassified “sex” with “gender identity”.

(c) The tone of [Stonewall]’s campaigning on this subject has been binary, absolutist and evangelical. It may be summarised as “You are with us, or you are a bigot.” Discussions on the subject have become extremely vitriolic, largely as a result of the [Stonewall]’s absolutist tone, replicated by other organisations with which [Stonewall] works closely. This has resulted in threats against women (including threats of violence and sexual violence) becoming commonplace. [Stonewall] has been complicit in these threats being made.

(d) Gender theory as proselytised by [Stonewall] is severely detrimental to women for numerous reasons, including that it denies women the ability to have female only spaces, for example in prisons, changing rooms, medical settings, rape and domestic violence refuges and in sport.

(e) Gender theory as proselytised by [Stonewall] is severely detrimental to lesbians. In reclassifying “sex” with “gender”, [Stonewall] has reclassified homosexuality from “same sex attraction” to “same gender attraction”. The result of this is that heterosexual men who identify as trans women and are sexually attracted to women are to be treated as lesbians. There is therefore an encouragement by followers of gender theory (including [Stonewall]) on lesbians to have sex with male-bodied people. To reject this encouragement is to be labelled as bigoted. This is inherently homophobic because it denies the reality and legitimacy of same sex attraction and invites opprobrium and threatening behaviour upon people who recognise that reality and legitimacy.

(f) It is particularly damaging to lesbians that [Stonewall] has taken this position. [Stonewall] had been the foremost gay and lesbian rights campaigning organisation in the UK and one of the world’s leading such organisations. The adoption of gender theory by [Stonewall] therefore left those gay, lesbian and bisexual people who did not ascribe to gender theory without the representation that [Stonewall] had previously provided, and left those people labelled as bigots by their primary representative organisation.”^⁠

This belief, in it’s entirety, was held to be protected under s.10 of the EqA [290].^⁠ It was genuinely held and was informed by philosophical opposition to the gender identity belief adopted by Stonewall. Because of this, it was not a mere opinion susceptible to changes in evidence but rather a sincere philosophical belief open to modification only where there is a change in the behaviour of Stonewall. The Tribunal therefore concluded [290] that the only way that Bailey would change her belief in response to developing context

“was if Stonewall itself modified its approach to gender identity theory so as to accommodate the possibility that physical differences between men and women based on sex should lead to say, spaces reserved for women based on sex not gender, and separate sporting competitions, based on sex.”

Bailey’s belief was about a weighty and substantial aspect of human life. The Tribunal held that her belief was cogent, serious, cohesive, and important [291]. Finally, it also concluded that “expressing hostility to Stonewall campaigning on the basis of gender self-identity did not seek to destroy the rights of others, in a way that would not be worthy of respect in a democratic society.” [292]^⁠

The tribunal upheld Bailey’s claim that Garden Court Chambers had unlawfully discriminated against her when it tweeted that it would be investigating her. This was done with the approval of Heads of Chambers, in full knowledge and with the intention that it would spread on social media [304]. The Tribunal concluded that this was a detriment that gave rise to a reasonable sense of grievance because it suggested that Bailey had done something that warranted investigation. This as an unnecessary response made in haste without due regard to the internal complaints procedure or the effect that this would have on Bailey [304]-[309]. As the Tribunal puts it [315]:

“Faced with a Twitter storm on gender self-identity, they picked sides. The Heads chose to prefer the view that the claimant was in the wrong and that her tweets should be investigated, because there was a lot of opposition to the views expressed in them. They knew it was about sex versus gender. Although in evidence all professed not to have a view in the sex versus gender debate, we concluded that they were opposed to her”.

This amounted to direct discrimination on the basis of philosophical belief and was therefore not capable of justification. Similarly, launching a spurious investigation and upholding a spurious complaint amounted to unlawful discrimination [327]-[328].^⁠ Once a belief is recognised as protected under s.10, it will be treated as any other religion or belief that is similarly covered would be. This means that those who hold this belief will be protected from all forms of unlawful conduct proscribed by the Equality Act, including indirect discrimination, harassment and victimisation.

Importantly for this appeal, the protected characteristic here is not the same as that in Forstater. Maya Forstater believed that biological sex is real, immutable, and important. Alison Bailey believed that but also additional beliefs specifically about Stonewall. Her holding and manifesting those beliefs is protected under the Equality Act 2010 and any inducement or causation of Garden Court Chambers to discriminate against here on the basis of them may be unlawful, should the inducement or causation come from a person or entity covered under s.111 of the Act. More on that in the next post.

Causing, Instructing, or Inducing Discrimination:

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 if 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.

The Wider Significance for EDI lobby and training groups:

The outcome in Bailey v Stonewall and Garden Court Chambers is likely to be treated by Stonewall with a sense of relief. Its reasoning, however, might pose a significant challenge to Stonewall’s advocacy efforts, exposing it to potential liability for inducing unlawful discrimination via its Diversity Champions Scheme. This will be of particular relevance now that we have confirmation that the case is going to the Court of Appeal.

In order for the obligation in s.111 to obtain, A and B must be in a relationship whereby A is subject to anti-discrimination duties in relation to B. This means that A must be an employer, a provider of goods or services, or some other duty-bearer in relation to B. So a customer who attempts to instruct, cause, or induce, an employer to fire an employee on the basis of a protected characteristic does not contravene s.111 because customers owe no duties to the providers of goods or services under the Act and therefore the required relationship between A and B does not exist.

An example of the kind of relationship that would satisfy this requirement can be seen in Commission for Racial Equality v Imperial Society of Teachers of Dancing [1983] IRLR 315 which concerned similar provisions from the Race Relations act 1976. In this case, an employee at the Imperial Society of Teachers of Dancing had contacted a school asking for a leaver to be put forward as a candidate for a job, stating that she “would rather that the school did not send anyone coloured”. This was found to be an unlawful attempt to induce racial discrimination, even if it did not include a threat of sanction or offer of benefit in exchange for the discrimination:

“There may be cases where inducement involves the offer of some benefit or the threat of some detriment, but in their ordinary meaning the words ‘to induce’ mean ‘to persuade or to prevail upon or to bring about’. In our judgment the intimation by Mrs McBride that ‘she would rather the school did not send anyone coloured’ as ‘that person would feel out of place as there were no other coloured employees’ did constitute an attempt to induce Mrs Patterson not to send coloured applicants for interview.”

For Stonewall, this means that when it provides services via its Diversity Champions Scheme it creates the kind of relationship that is envisaged by s.111. As the Employment Tribunal in Bailey put it at [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.”

If in the provision of these services or other services such as the Workplace Equality Index, Stonewall instructs, causes, or induces employers or service providers to engage in unlawful discrimination, it could be liable under s.111.

So, given that the requisite relationship exists, what is the test for liability here? This can be separated based on the three distinct torts here.

To constitute instruction, A must command or tell B to do something which constitutes a basic contravention of the Act. The EAT in Bailey held that

“It is in the nature of an instruction that the instructor intends the instructee to do something specific. Person A need not be aware that the instructed act will be unlawful, but they must know what it is that they are instructing person B to do, and that act, as instructed, must contain all the elements of whichever of the statutory torts that person B will commit by following the instruction.”

So, for example, if the contravention is direct discrimination, A must instruct B to treat C less favourably on the basis of a protected characteristic because of the protected characteristic. It does not matter whether A considers this to be unlawful. For example, if A believed that all gender critical belief is transphobic and that there is no protection for the expression of those beliefs in the workplace, instructing B to discipline employees for expressing gender critical beliefs would contravene s.111 regardless of whether A was aware that disciplining employees in this manner constitutes unlawful direct discrimination.

Similarly, if the contravention is indirect discrimination, the requirement here is that A instructs B to implement a provision, criterion, or practice (PCP) which unjustifiably places those who share a protected characteristic at a particular disadvantage: “Since person B can be liable without knowing or intending that the PCP has that effect, so can person A” [101].

The same analysis applies for inducement which does not require an explicit instruction and can obtain where A merely persuades B to commit a basic contravention against C. As the EAT in Bailey held at [105], “In one case it could consist of pure verbal persuasion, and in another it could involve an element of carrot or stick.”

Finally, to “cause” a basic contravention A must “bring about” the tort in a ‘but for’ causation sense where a court or tribunal is satisfied that it would be fair, reasonable, and just to impose liability.

So how might this analysis open Stonewall up to liability? Well, if in any of its advocacy or training, Stonewall or any other EDI training provider, instructs, induces, or causes an employer or other duty-bearer to unlawfully discriminate against or harass someone they owe duties to under the Equality Act, that will contravene s.111.

For example, Stonewall’s Diversity Champion Scheme encourages member to implement self-ID policies for access to single-sex services such as communal toilets and changing rooms. Such policies will put women and religious minorities at a particular disadvantage and will therefore stand to be justified. If they cannot be objectively justifies, they will amount to unlawful indirect discrimination. This issue will be litigated over the next year. In one case, the NHS is being sued by a woman who was suspended for objecting to a policy which allowed transgender women to use female-only changing rooms.

In another example, leading discrimination law barrister, Karon Monaghan KC has provided legal advice on Brighton & Hove City Council’s trans inclusion schools toolkit. This toolkit was written by a trans rights advocacy group, Allsorts, and distributed by the Council for schools to implement. In her advice, Ms Monaghan advises that the toolkit is unlawful in many ways, including that its mixed-sex policies are indirectly discriminatory in the provision of sports, toilet and changing facilities against women, sexual minorities, religious minorities, those who hold gender critical beliefs and those protected under the characteristic of gender reassignment.

To the extent that this toolkit instructs, induces, or causes unlawful discrimination, both Allsorts and Briton & Hove City Council would be liable under s.111. If this analysis is correct, it could mean that any organisation giving misleading or incorrect training on equality, diversity, and inclusion could be exposing itself to significant risk of litigation.

Importantly, s.111(5) establishes that a claim can be brought for breach of s.111 by the Equality and Human Rights Commission. It need not be the person who suffers discrimination that brings such a claim. Whether the Equality and Human Rights Commission is inclined to do this is another question entirely.

The significance of this case cannot be underestimated. It has the potential to be as important, if not more important, than Forstater v CGD Europe, due to the specific focus on liability for causing, instructing or inducing unlawful discrimination. Forstater established a general principle that the the touchstone for this area of law: gender critical beliefs are protected under the Equality Act. Bailey has the potential to expand on that principle and apply it to an industry of professional EDI training in a manner that would require these training programmes to get the law right or face significant liability. For companies that provide this training at an industrial level, the potential liability is monumental.