Inducing Discrimination: Bailey -v- Stonewall Equality Limited and Garden Court Chambers Limited [2024] EAT 119

Background

Allison Bailey, a barrister at Garden Court Chambers (“Garden Court”) commenced proceedings against Stonewall Equality Limited (“Stonewall”), Garden Court Chambers Limited and Rajiv Menon KC and Stephanie Harrison KC, sued as representatives of all members of Garden Court (“the Respondents”) following a partnership between Garden Court and Stonewall, a charity that promotes equality and human rights for lesbian, gay, bisexual and trans people.

Ms Bailey held the belief that a woman is defined by her sex, meaning that her gender cannot differ to her sex. This was at odds with Stonewall’s belief that transgender women are women in the eyes of the law, and their campaign on gender self-identity. Ms Bailey complained to her colleagues about Garden Court becoming Stonewall Diversity Champions.

Following the partnership, Kirrin Medcalf, Stonewall’s Head of Trans Inclusion complained to Garden Court about a series of Ms Bailey’s tweets stating that she was “actively campaigning for a reduction in trans rights and equality” and also about her involvement in LGB Alliance Group. LGB Alliance Group is a charity supporting lesbian, gays and bisexuals but expresses the belief that gender is not as important as biological sex, and that “replacing sex with gender means that we can no longer name or describe the discrimination we face, and therefore our hard-won rights are dismantled.”

Employment Tribunal

Ms Bailey brought a claim against the Respondents alleging that among other claims, the barristers and their staff acted towards her in breach of the Equality Act 2010, but also that Stonewall induced, instructed or caused or attempted to induce or cause some of the barristers’ actions.

The Respondents to Ms Bailey’s claim agreed that her belief that women are defined by sex, not gender is a protected belief under the Equality Act 2010, however they disputed that Ms Bailey’s views about Stonewall’s campaign on gender self-identity were part of this protected belief.

The Employment Tribunal (“ET”) found in its ruling that Ms Bailey had been directly discriminated against by Garden Court Chambers, Rajiv Menon KC and Stephanie Harrison KC because of her protected characteristic of belief but dismissed Ms Bailey’s claim against Stonewall.

Employment Appeal Tribunal

Ms Bailey appealed the ET’s decision that she had not been discriminated against by Stonewall on the grounds that through acts of one of its employees, they caused or induced one of Garden Courts’ discriminatory acts against her contrary to section 111 of the Equality Act 2010.

Section 111 of the Equality Act 2010 provides that a person must not instruct, cause or induce another person to do anything in relation to another person which is a basic contravention of the Equality Act 2010. Inducement may be direct or indirect.

Ms Bailey claimed that she had been discriminated against because she had a protected belief under the Equality Act 2010, and because she held that belief, Garden Court had treated her less favourably than others who did not have that belief. She further held that the discrimination by Garden Court and its members was a basic contravention of the Equality Act 2010 and therefore, because Stonewall had a relationship with Garden Court, it was also liable for the contravention in relation to Garden Court as she claimed that they caused Garden Court to commit the contravention against her, contrary to section 111 of the Equality Act 2010.

The Employment Appeal Tribunal (“EAT”) had to consider whether Stonewall had caused Garden Court to commit the contravention against Ms Bailey.

The EAT dismissed Ms Bailey’s appeal, holding that the ET’s judgment was not wrong in rejecting her claim that Stonewall, through acts of an employee, caused or induced a discriminatory act against her contrary to section 111 of the Equality Act 2010.

Mr Justice Bourne held that Ms Bailey had fallen “well short” of showing that the actions of the Stonewall employee influenced the way her chambers had reacted after she opposed its partnership with the charity. He further held that she had failed to show that the Stonewall employee “either induced or attempted to induce [Garden Court] to inflict a detriment on her, the inducement was to inflict the detriment on grounds of her protected belief rather than because of an allegedly objectionable manifestation of her belief.”

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3 September 2024