In this case, the Court of Appeal upheld an employment tribunal's decision that Stonewall did not cause or induce Garden Court Chambers (GCC) to discriminate against one of its barristers on the grounds of her protected gender critical beliefs.
Facts
In 2022, Ms Bailey, a barrister and member of GCC, succeeded in a discrimination claim against GCC and its other members.
Ms Bailey had objected when GCC became a diversity champion for Stonewall. She was also involved in setting up the Lesbian Gay Alliance, which believes that biological sex matters and that sex should not be replaced with gender. She regularly posted on Twitter (now X) about these issues. GCC received various complaints about these posts, via its website. GCC decided to investigate and put out a public post confirming that it was doing so.
The investigator, Ms Sikand, prepared a draft report which concluded that the posts she had considered were neither transphobic nor in breach of professional guidance. After the draft report had been prepared, but before it had been finalised, a Stonewall employee, Mr Medcalf, complained to GCC about the fact it continued to associate itself with Ms Bailey. His complaint attached more of Ms Bailey's posts, which had not formed part of the initial investigation. Ms Sikand considered these additional posts, and concluded that two of them were likely to have breached professional obligations. In light of this finding in Ms Sikand's report, GCC asked Ms Bailey to take down those two posts. Ms Bailey declined to do so, and no further action was taken against her by GCC.
Ms Bailey successfully complained to the employment tribunal that GCC had discriminated against and victimised her both by publicly announcing the investigation, and because it had determined its investigation in a discriminatory way.
Although Ms Bailey won her claim against GCC and its members, she failed in her claim against Stonewall that, through Mr Medcalf's actions, it had caused or induced the discrimination (under section 111 of the Equality Act 2010).
Ms Bailey appealed unsuccessfully to the EAT, who found that Stonewall had not caused or induced the discrimination against her. She then brought a further appeal to the Court of Appeal.
The Court dismissed Ms Bailey's appeal. It held that it was permissible for the employment tribunal to have found that Stonewall's complaint was a "but for" cause of the discriminatory way in which GCC determined its investigation, but not the effective cause, and that Stonewall was therefore not liable under section 111. The Court explained that:
- The test for establishing liability under section 111 has two stages. The first is to identify whether the respondent's actions are the "but for" cause of the discrimination.
- If that is established, the second stage involves assessing whether, having regard to the statutory context and all the facts, it was fair, just, and reasonable to find the respondent liable.
- The purpose of this second stage analysis is to identify the effective cause of the damage. This requires the tribunal to focus on the various legal labels or concepts by which liability may be limited.
- Of those labels, the one that was relevant in this case was the concept of a "new intervening cause".
- Section 111 envisages a situation where one person is liable for causing another person to discriminate against the claimant, but it does not follow that the discriminator can never be held solely responsible for that discrimination. It is possible for the discriminatory act itself to amount to a new intervening cause; each case will depend on its facts.
- In the present case, GCC's acts were a new intervening cause that broke the chain of causation between Stonewall's complaint and the discrimination suffered by Ms Bailey in the way in which GCC determined its investigation.
On inducement, the Court noted that inducing means persuading. The tribunal had found that the Stonewall complaint was no more than a "protest" and was not intended to bring about any kind of action against Ms Bailey. In the Court's view, therefore, it could not be said that GCC was persuaded to take action of a kind intended by Stonewall. In any event, it was difficult to see how Ms Bailey's appeal on inducement could succeed where her appeal on causing discrimination had failed, as inducement (which at the very least involves some element of deliberate conduct) sets a higher hurdle.
What does this mean for employers?
The decision in this case provides useful guidance on assessing liability under section 111, in particular in relation to the need to focus on legal concepts that may limit liability in order to determine whether it is fair and just and reasonable to find a respondent liable for causing discrimination. In addition, the facts of the case are a reminder to employers that when balancing complaints involving conflicting protected characteristics, they should remain neutral and not seek to publicly (or otherwise) pick a side before investigating the facts.
