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The Court of Appeal Holds that Stonewall Did not Instruct, Cause, or Induce Garden Court Chambers to Discriminate Against a Barrister Because of Her Gender Critical Beliefs
Adrian Fryer
Section 111 Equality Act 2010 makes it unlawful for a person to instruct, cause or induce someone to discriminate against, harass or victimise another person, or to attempt to do so.
In Bailey v Stonewall, the Claimant was a tenant of Garden Court Chambers (GCC). GCC signed up to the Diversity Partners programme run by Stonewall. The Claimant held gender critical views. She made tweets about her objection to what she saw as Stonewall’s ‘trans-extremism’ and supporting the LGB Alliance, which promoted gender crucial principles. GCC received a number of complaints as a result, specifically about a viewed incompatibility of her views with trans rights. Stonewall also made a complaint.
GCC made a public statement that it would investigate. As a result of the investigation, GCC held that two of the tweets should be deleted.
The tribunal found that the announcement of the investigation and its outcome were both detriments suffered by the Claimant because of her protected gender critical beliefs.
The point at issue was whether Stonewall was liable for inducing the discrimination. The Court of Appeal held it was not. For ‘causing or inducing’ claims under s111 EqA:
- A claimant must show that, but for the intervention of person A (here, Stonewall), the act of discrimination by B (GCC) would not have occurred.
- Having regard to all the facts, making person A (Stonewall) liable for that discrimination would be ‘fair or reasonable or just’, those adjectives being interchangeable.
The EAT held that responsibility for determining the complaint in a discriminatory way lay only with GCC. For that reason, although Stonewall’s complaint was the ‘occasion’ for it happening (and so could be regarded as causing it in a ‘but for’ sense), it would not be reasonable to hold Stonewall liable for that discriminatory outcome. Protest or complaint alone is insufficient to establish liability without a fair and reasonable basis to attribute responsibility.