Discrimination: Stonewall did not cause or induce discrimination against barrister (CA)

Alison Bailey, a barrister with gender-critical views, formerly at Garden Court Chambers (GCC), won her discrimination and victimisation case against GCC. An employment tribunal held that  the way GCC conducted its investigation against her in relation to gender-critical tweets, as well as subsequent treatment of her, constituted direct discrimination and victimisation. 

Ms Bailey also alleged that Stonewall caused or induced GCC to discriminate against her by complaining to GCC about her tweets, in breach of sections 111(2) and 111(3) of the Equality Act 2010. However, she lost this aspect of her case, was unsuccessful in her appeal to the EAT, and has now had her further appeal rejected by the Court of Appeal.

The Court of Appeal considered what it means for someone to cause or induce unlawful discrimination under the Equality Act 2010 and has clarified the legal test for establishing this. On the facts, Stonewall had not caused or induced the discrimination against Ms Bailey. While its complaint was the occasion for the discrimination, it was not the effective cause of it. The investigation was the effective cause of the discrimination and the damage caused to Ms Bailey could not be attributed to Stonewall.

A 2002 House of Lords case on causation in a different context was relied upon. The first stage requires a "but for" analysis – but for the complaint the investigation would not have occurred; the second requires an evaluation of the factors which were an effective cause of the damage or injury suffered. While a complaint from a third party might well be the catalyst, intervening acts and the agency of others will be relevant and may well break the chain of causation, as they did here. 

In relation to inducement, the Court of Appeal found that Stonewall lacked the necessary purpose or intent to bring about a particular action or detriment towards Ms Bailey for the connection to the damage she suffered to be made out.