In brief
The Equality Act 2010 establishes that a person or organisation can be liable for instructing, causing or inducing another person to commit unlawful discrimination against a third person.
In this case, a barrister with gender-critical beliefs was found by an employment tribunal to have been directly discriminated against by her chambers (which announced on social media that it was opening an investigation into her tweets). However, the Court of Appeal has now upheld the tribunal’s decision that on the facts, an employee of Stonewall who had emailed Ms. Bailey’s chambers to express concern about the barrister’s online posts had not caused or induced discrimination against her. The Court of Appeal considers the meaning of both terms and sets out helpful guidance on the approach to be taken.
Comments
- This is an area in which there had been little case law. The Court of Appeal’s judgment usefully sets out the correct approach to causation, and the meaning of inducement, of discrimination under the Equality Act 2010.
- Although Stonewall won in this instance, the case highlights that a service provider must be aware of the possible consequences of its actions in relation to third parties.
- To discuss what this development means for your business, please get in touch with your usual Baker McKenzie contact.
In more detail
Background
This case concerned a claim by Ms. Bailey, a barrister, against her chambers, Garden Court Chambers (GCC), as well as the charity Stonewall. Stonewall provided services and accreditation to GCC through its diversity champion scheme.
Ms. Bailey holds gender-critical beliefs. She made public statements, including on Twitter, about those beliefs. GCC announced online it would conduct an investigation into Ms. Bailey's comments and later upheld a complaint by Stonewall about some of her tweets.
An employment tribunal found that GCC’s actions amounted to direct discrimination against Ms. Bailey on the ground of belief, but rejected her claim that by Stonewall’s complaint to GCC, the charity had either induced or caused GCC to commit the discrimination. The tribunal found the complaint had just been a protest; Stonewall had not sought a specific outcome and had not threatened withdrawing GCC's diversity champion status.
Ms. Bailey appealed the decision to the EAT in respect of the Stonewall claim, which upheld the tribunal’s decision.
Ms. Bailey appealed to the Court of Appeal.
The Court of Appeal decision
The Court of Appeal unanimously dismissed the appeal.
The law distinguishes between a “mere precondition or occasion for loss”, and an act for which the defendant is liable and damages are due. The tribunal was entitled to find that GCC’s losses were caused by GCC’s investigation, not Stonewall’s actions, so Stonewall was not liable for them.
The relevant provisions of the Equality Act (EqA) prohibit person A from instructing, causing or inducing person B to do anything in relation to person C that amounts to a "basic contravention". A basic contravention is essentially unlawful discrimination, harassment or victimisation, or knowingly aiding the same.
Person A must also be in a position to commit a basic contravention in relation to B. This means that A and B must be in one of the various types of relationships that the EqA governs. For example, A must be B's employer or, as in this case, A must be a service provider to B.
The Court dismissed Ms. Bailey’s argument that liability under the EqA is automatically established where A acts because of a protected characteristic and that, but for A’s actions, the direct discrimination would not have occurred. It held that, while, “but for” causation is required as a first stage to engage the EqA provisions, this was not enough to establish liability. The second stage of establishing causation depends on an evaluation of the causal potency or efficacy of the acts. This evaluation should include consideration of the person’s motivation, intention or reason for acting, as well as any intervening acts which might break the chain of causation.
In this case, the Court held that the tribunal had been entitled to conclude that GCC’s investigation broke the link between Stonewall’s complaint and the discriminatory effect on Ms. Bailey. GCC’s actions which led to the discrimination were attributable to GCC alone. The tribunal’s decision that the Stonewall complaint was merely a protest was a conclusion to which it was entitled to come.
Stonewall had not caused GCC’s discrimination, and nor had it induced it. The tribunal had found that Stonewall’s complaint was not looking for any action against Ms. Bailey, so GCC could not have been persuaded to take any action intended by the charity. As inducement involves some element of deliberate conduct, it was difficult to see how an inducement argument could succeed where one based on causation had failed.
Bailey v. Stonewall Equality Ltd, Court of Appeal