The case of Bailey v Stonewall Equality Ltd and others has been widely reported in the press over the past couple of years. This case hit the news not only because it concerns a hot topic in workplaces, but also because the claimant was awarded £20,000 in costs when the solicitor instructed by the chambers the claimant worked for - Garden Court Chambers (GCC) - was found to have acted unreasonably in the manner in which the claim was defended. However, the story has not ended there.
Background
In 2020 barrister Allision Bailey successfully brought claims of direct discrimination and victimisation against GCC on the grounds of her protected belief that women are defined by biological sex rather than gender identity. She had also brought a claim that Stonewall Equality Ltd (Stonewall) had instructed, caused or induced discrimination by GCC, or attempted to do so, but that claim had been dismissed. The factual circumstances upon which these claims had been based was as follows.
In 2018 GCC had become a Stonewall Diversity Champion. The claimant made GCC aware that she believed Stonewall to be promoting "trans extremism". She was subsequently involved in setting up the LGBT Alliance, an organisation based on gender critical principles. Tweets she sent about this organisation resulted in complaints being made to GCC. One of these complaints was from Stonewall. In response to the complaints, GCC chose to publicly tweet that they would investigate the claimant's conduct. The outcome of that investigation was that two of the claimant's tweets should be deleted. It was the public nature of the intent to investigate combined with the outcome of GCC's subsequent investigation that the employment tribunal found to be detriments suffered by the claimant because of her protected gender critical beliefs. The claimant was awarded £20,000 for injury to feelings (the separate costs award referred to above came later in the process).
The claim against Stonewall
The Equality Act 2010 makes it unlawful to instruct, cause or induce someone to unlawfully discriminate, or to attempt to do so. In this case it was alleged that the complaint made by an individual at Stonewall was an attempt to induce GCC to discriminate against the claimant. Although the tribunal found that the individual at Stonewall had been significantly influenced by the claimant's protected beliefs when making the complaint, it held the complaint was just a protest "without any specific aim in mind". Without any element of threat from Stonewall, the tribunal concluded that when determining Stonewall's complaint GCC were not significantly influenced by the claimant's protected belief. The claim was dismissed.
The EAT judgement
The claimant appealed the dismissal of her claim against Stonewall to the Employment Appeal Tribunal (EAT). Once again, the claim was unsuccessful. A claim that a party has instructed, caused or induced discrimination can only succeed if that party has actually caused the discrimination - that is to say, the claimant needs to show that Stonewall's conduct not only caused GCC to take action to investigate the claimant, but actually caused the discriminatory outcome of that investigation. Stonewall had to causally contribute to GCC's discriminatory act on a "but for" basis and the causal connection needs to be such that having regard to the facts of the case, making Stonewall liable would be a "fair or reasonable or just" outcome.
In its judgement the EAT found that, although the complaint was a "but for" cause of the eventual outcome, responsibility for determining that outcome in a discriminatory way fell to the GCC. It would not be reasonable to hold Stonewall liable for that discriminatory outcome.
The end of the story?
There have been few reported cases on instructing, inducing or causing someone to discriminate. As focus is drawn more to discrimination and harassment in the workplace, we may well see cases like this being more commonly brought before employment tribunals. While in some cases there may be a direct instruction to discriminate that can be founded upon, in others the facts will be much more nuanced making a successful claim more difficult. However, this may yet not be the end of the road for this case as it is understood the claimant is considering a further appeal.
