Larry the Bird (Now Retired) and Lessons in Employment Law

This new blog by Open University LLB student William Brazier looks at discrimination law and what can be learned from Alison Bailey v Stonewall Equality Ltd and Others [2024] EAT 119

On 24 July 2024 the Employment Appeal Tribunal (EAT) in Alison Bailey v Stonewall Equality Ltd and Others [2024] EAT 119 (1) rejected the claimant’s claim that the first respondent, through acts of the employee, caused or induced a discriminatory act against her by the second and third respondent’s contrary to s111 Equality Act 2010 (2). The EAT therefore did not allow the claimant’s appeal. But what does this mean for discrimination law? This article analyses the EAT’s recent judgment, whilst also looking back to the Employment Tribunal’s (ET) finding in Alison Bailey v Stonewall Equality Ltd and Others: 2202172/2020 (3) on 24 June 2022, to explore the collective impact both the judgment of the ET and the EAT have had on discrimination jurisprudence.

Alison Bailey v Stonewall Equality Ltd and Others: 2202172/2020

In December 2018 Ms Alison Bailey, a barrister, complained about her chambers, Garden Court, becoming a Stonewall Champion, expressing a concern related to a belief about who was a woman. Ms Bailey alleged that due to this complaint, she was given less work, and consequently less income.  

In October 2019, Ms Bailey established a Lesbian Gay Alliance to resist transwomen self-identifying as women. Her tweets, which ran adjacent to this, led to a number of complaints being made to Garden Court about the incompatibility of her views with trans rights. Garden Court responded by tweeting that they would investigate this.

During this investigation, an employee from Stonewall complained to Garden Court about these tweets, expressing concern about the claimants’ views, and that he trusted Garden Court to do the right thing. The investigator was directed to look into this complaint and review any tweets from Ms Bailey that were critical of Stonewall.

Garden Court’s investigation concluded that some of the tweets were likely to offend the Bar Standard’s Board and asked Ms Bailey to remove them. Ms Bailey alleged that it was detrimental to suggest these complaints needed investigation, and that the investigation’s conclusion was wrong.

Subsequently, the claimant brought proceedings against the respondents, alleging discrimination because of her views.

The Employment Tribunal’s Ruling

The ET made clear that all of Ms Bailey’s beliefs centred around her gender critical views and were, therefore, protected. It also ruled that Ms Bailey had in no way expressed these views inappropriately.

It was held that Garden Court had discriminated against Ms Bailey by; tweeting that they would investigate the tweets made by Ms Bailey. If Garden Court had taken the time to review the tweets, it was found, it would have been clear that the complaints were simply countenance to Ms Bailey’s view. Garden Court knew this was a sex versus gender issue, and took the view that Ms Bailey was in the wrong.

Garden Court’s decision to send this tweet was about Ms Bailey’s beliefs, not the way she had communicated them.

The ET found, as a matter of fact, that once Stonewall had raised a complaint, Garden Court changed its view regarding two of the tweets sent by Ms Bailey. To this extent, Ms Bailey’s victimisation claim succeeded.

Claims that Ms Bailey had lost work and income because of her December 2018 tweets, or that she was harmed by delays in disclosing documents, were not upheld.

Nor were Ms Bailey’s indirect discrimination claims alleging Garden Court had a practice of holding that gender critical views were bigoted, and that Garden Court had allowed Stonewall to direct its complaints process.

A separate claim made by Ms Bailey alleging that Stonewall had instructed or induced discrimination by Garden Court, or indeed attempted to do, was also rejected.

Alison Bailey v Stonewall, Garden Court Chambers, and others [2024] EAT 119

On 24 July 2024 the EAT handed down the judgment for Ms Bailey’s appeal, concerning her claim that Stonewall, through the acts of an employee, caused or induced one of Garden Court’s discriminatory acts against her contrary to s111. Ms Bailey contended that the facts as found by the ET were consistent only with a ruling that Stonewall did cause or induce the discrimination.

The Employment Appeal Tribunal’s Ruling

The EAT ruled that, on the facts, the ET was entitled to find that Stonewall was not liable for causing the basic contravention. The key point was that the responsibility for determining the complaint in a discriminatory manner lay only with Garden Court.

What can we learn from this?

1. Clarification on s111 Equality Act 2010

The EAT clarified that, in respect of s111(2) (4), a claim will not succeed unless a person actually caused the contravention. This means that person B must have been caused by person A to commit an act or omission because of a protected characteristic of person C.

Furthermore, by reference to Airways Corp v Iraqi Airways Co (Nos 4 and 5) (5), a claimant must show a causal contribution on a but for basis and, second, that the causal connection is such that having regard to the statutory context, and to the facts of a case, making person A liable is fair or reasonable or just. These terms of course being interchangeable.

Finally, with respect to s111(3) (6), the term ‘induce’ is affirmed as being broadly synonymous with persuade. It could be purely verbal persuasion, or there could be an element of carrot and stick.

1. Reflections of Democratic Values in an Employment Context

Indeed, many of the key learnings from these cases affirm key values desired in a democratic society, in an employment context. Notably, demonstrating that there is no hierarchy of beliefs in discrimination law. Every person who holds beliefs on either side of an issue, is equally protected and has the right to hold and express their views in an appropriate manner.

Additionally, it is clear from these two cases that employers should ensure to respect both sides of an argument and avoid favouring one side of an issue, as they may risk alienating themselves from those employees who perhaps take a differing perspective.

And, perhaps most compellingly, is that employers should not, and cannot, prevent employees from having disagreements on current issues. But they should, and they can, build an environment where respectful disagreement is welcomed.

Alas, what began with a tweet, became a meaningful case demonstrating how democratic and pluralistic values are intertwined within employment law.

References

Castro, B. (2024) ‘Barrister loses employment tribunal appeal against campaign group Stonewall’, The Law Society Gazette, 25 July. Available: https://www.lawgazette.co.uk/news/barrister-loses-tribunal-appeal-against-stonewall/5120462.article (Accessed: 29 July 2024).

Irwin Mitchell (2022) What can employers learn from the latest case on gender-critical discrimination? Available: https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102huck/what-can-employers-learn-from-the-latest-case-on-gender-critical-discrimination (Accessed: 29 July 2024).

Main image: Twitter. (2023) Twitter bird. Available: https://x.com (Accessed: 29 August 2024).