Bailey: Appeal unsuccessful
An employment tribunal was entitled to reject a barrister’s claim that LGBT charity Stonewall “caused or induced” discrimination against her by her chambers, the Employment Appeal Tribunal (EAT) has ruled.
Mr Justice Bourne said the “key point” was that, on the facts found by the tribunal, responsibility for determining the complaint against barrister Allison Bailey in a discriminatory way “lay only with” Garden Court Chambers (GCC).
In July 2022, the tribunal ordered GCC to pay Ms Bailey damages of £22,000 for injury to feelings over the way it investigated complaints about her gender-critical views. It found she was discriminated against or victimised in two out of five alleged detriments. GCC was later also ordered to pay costs of £20,000.
However, it rejected Ms Bailey’s claim that Stonewall had directed GCC’s investigation process and it was this that she appealed.
She argued that Stonewall, through the acts of an employee, head of trans inclusion Kirrin Medcalf, caused or induced GCC’s direct discrimination against her.
This would be contrary to section 111 of the Equality Act 2010, which says a person must not instruct another to do in relation to a third person something in contravention of various provisions of the Act, including discriminating against someone because of a protected belief.
The EAT heard that, in the context of an investigation into tweets by Ms Bailey launched by GCC in October 2019, Mr Medcalf made a complaint about 11 of them, praising the chambers’ “positive relationship with the trans community” but warning that Ms Bailey’s criticisms “puts us in a difficult position with yourselves”.
Bourne J disagreed with the argument from Ms Bailey’s counsel that section 111 required a test of reasonable foreseeability and that this was present here.
The judge held instead that, once ‘but for’ causation was established, “the question is whether, having regard to the statutory context and to all the facts, it is fair or reasonable or just to find person A liable for causing person B’s contravention of the 2010 Act”.
He went on: “No doubt foreseeability will often be a relevant area of enquiry, but all will depend on the facts.
“I have ruled that the right question was not whether the unlawful outcome was reasonably foreseeable but whether, in this statutory context, it is fair or reasonable or just to find Stonewall liable for causing it.”
But even if reasonable foreseeability was the correct test, the tribunal “was not bound to decide that issue in Ms Bailey’s favour”.
The tribunal had rejected the suggestion that the complaint was either intended or understood as a threat to discontinue Stonewall’s relationship with GCC if GCC did not expel Ms Bailey.
Bourne J said: “In my judgment, it was not particularly likely that in responding to the complaint and identifying any breach of the [Bar Standards Board] guidelines, GCC would be significantly influenced by the mere fact that Ms Bailey held particular beliefs…
“On the contrary, a barristers’ chambers specialising in equality law could be expected to weigh such a complaint impartially and decide in a lawful manner whether Ms Bailey’s expression of any views had contravened any guideline.”
On the facts that it found, he went on, the tribunal was “entitled to find that Stonewall was not liable” for causing the contravention.
“The key point was that responsibility for determining the complaint in a discriminatory way lay only with GCC.”
The judge said that, although Mr Medcalf’s complaint was why it happened, “it would not be reasonable to hold Stonewall liable for that discriminatory outcome”.
Bourne J noted that just as Ms Bailey’s beliefs were protected under the Act, the same was “likely to be true of Kirrin Medcalf’s beliefs”, though the tribunal was not asked to decide that question.
Writing on X, Ms Bailey said: “The judgment gives permission for organisations like Stonewall to procure the withdrawal of employment from people whose protected characteristic they disagree with, if this can be framed as a ‘protest’.
“This seems to go directly against the terms of the Equality Act. Sight should not be lost of the fact that Stonewall, a charity set up to protect the legal rights of lesbians like me, should be the ones to limit workplace rights like this. How far they have fallen.”
Ms Bailey resigned from GCC and retired in March 2023.
We have approached Stonewall for comment. GCC had no comment as it was not involved in the appeal.
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