The Court of Appeal has upheld an EAT judgment that Stonewall Equality Limited ("Stonewall") did not induce a barrister's chambers to discriminate against her.
There are not many reported cases dealing with instructing, causing, or inducing discrimination. In short, it arises where person A discriminates against person B, but person A has done so because person C has, in some way, made them do so.
In Bailey v Stonewall Equality Limited, the Court of Appeal has provided guidance on establishing whether a person has caused or induced discrimination.
Background
In the case of Bailey, the claimant was a barrister with gender critical beliefs. She successfully claimed against her chambers, Garden Court Chambers ("GCC"), that she had been directly discriminated against and victimised on the grounds of those beliefs. The circumstances related to tweets she had posted about those beliefs. GCC had received several complaints about the tweets, but a draft report produced by GCC concluded that the tweets were neither transphobic nor in breach of professional guidelines. Stonewall then submitted a complaint, which triggered further consideration by GCC. A final report concluded that the claimant's tweets were likely to have breached professional guidelines, and she was asked to delete them, which she did not do. An Employment Tribunal ("ET") found that the way in which GCC carried out the investigation, including publicly tweeting about their actions, and the outcome of that investigation were discriminatory.
The claimant also argued that Stonewall's complaint caused or induced GCC to discriminate against her. Both the ET and the Employment Appeal Tribunal ("EAT") dismissed that claim. Establishing liability for causing discrimination involves a two stage test. Firstly, applying a "but for" test, would the discrimination have taken place but for the action of the alleged discriminator? In this case, but for Stonewall's complaint, the conclusion would have remained as set out in the draft report and the matter would not have progressed. However, the Court made clear that the "but for" test alone is not enough to establish liability. It must then be considered whether it is fair, just and reasonable to find the defendant liable. This assessment includes examining whether there were any intervening acts that caused the discrimination.
The Court of Appeal upheld the findings of the ET and the EAT. Even if the "but for" test is satisfied, the actions of GCC in the way they undertook their investigation broke the chain of causation between Stonewall's complaint and the discrimination the claimant suffered. It was GCC's conduct that was discriminatory. Stonewall's complaint was "no more than a protest". It was not fair, just or reasonable to find Stonewall liable for causing the discrimination.
The claim of inducement to discrimination also failed. Inducing discrimination requires an element of deliberate conduct, and there was no evidence of any deliberate discriminatory behaviour by Stonewall.
In reaching its conclusion, the Court specifically rejected an argument that, once the "but for" element is established, the second part of the test should require that the alleged discriminator's actions be the direct cause of the discrimination. The Court considered that there may be cases where an alleged discriminator's actions are indirectly but significantly responsible for the discrimination, and in such circumstances, they should not avoid responsibility. It would also impose an unnecessary requirement for courts and tribunals to distinguish between direct and indirect causes where causal connections may take many forms.
What should employers take from this?
While the judgment in this case focused on the correct test to be met in establishing causing or inducing discrimination, the claimant's case ultimately failed because of an intervening act. That intervening act was the investigation, which Stonewall had not requested, and the way it was conducted, which Stonewall did not influence.
All businesses will receive complaints at some point. Sharing views on social media will continue to be a growing source of such complaints. However, when responding to complaints, businesses must ensure that they act in a fair, reasonable and non discriminatory way. This case highlights that employers will always need to justify their own actions when dealing with employees, regardless of the internal or external triggers that prompt action.
