The protection provided by the Equality Act 2010 ("the Act") for people accessing goods and services is sometimes overlooked. The recent case of Bailey v Linnaeus Veterinary Limited t/a Palmerston Veterinary Group is the first time a member of the public has successfully brought a case based on access to services being denied on the basis of gender critical beliefs, and businesses should take notice.
Background
Alison Bailey, a barrister who holds gender critical views, won a well-publicised case against her former barristers' chambers in 2022. In that case, an employment tribunal found she had been discriminated against for expressing her beliefs on social media that sex is biological and cannot be changed, causing what her chambers described as a "Twitter storm". She was subsequently also successful in obtaining a costs award in her favour — a relative rarity in the employment tribunal.
In January 2023, the veterinary practice used by Ms Bailey decided to de-register her. She had been registered there for over 13 years. The practice maintained that Ms Bailey had been rude to staff on a number of occasions. She had also made several complaints relating to the transfer of records to a dog hotel, insurance claims, and the competence of reception staff. Matters came to a head when Ms Bailey attended the practice on 18 January 2023. Ms Bailey claimed she was not aggressive during this interaction, but she did return home and post a one-star review of the practice online. She also sent a written complaint to the practice about both her interaction with the staff member that morning and the issue of the insurance claims.
Further communication followed, including a request by Ms Bailey for her dog's medical records and current medication to be sent to a different vet. Ms Bailey was then sent a letter de-registering her and citing the breakdown of trust and confidence between her and the practice as the reason. Ms Bailey responded by claiming to have a good relationship with the vets and reminding the practice that they were "not free to refuse service in a high-handed manner or in a way that engages or may engage the Equality Act 2010".
County Court judgment
Ms Bailey subsequently raised an action in the County Court, alleging that her expulsion was due to her gender critical beliefs. The practice maintained that it was because of her rude and aggressive manner with staff. By this time, her employment tribunal claims had received significant publicity, and the County Court judge found that this had become known within the veterinary practice.
While the judge accepted that Ms Bailey could be difficult and aggressive with staff, significant evidential weight was given to the practice’s failure to follow its own policies when expelling her. This included a failure to give Ms Bailey a warning in advance of her expulsion. There was also evidence of trans activist materials having been distributed throughout the practice, and a team meeting had focused on trans rights activism (the meeting had taken place on the same day that the Employment Appeal Tribunal had handed down judgment in another well-publicised case dealing with similar issues, Forstater v CGD Europe). The judge concluded that, under cross-examination, one of the witnesses for the practice was "a hair's breadth away" from stating that gender critical beliefs were bigoted, and the evidence of others was unreliable. He also drew an inference from the practice’s failure to call a material witness who, according to the judge, would have had "important evidence to offer".
Taking all this into account, the judge concluded that, on the balance of probabilities, the practice had unlawfully discriminated against Ms Bailey. It was unable to show that Ms Bailey's beliefs played no part in her expulsion.
Comment
The circumstances of this case are unusual. Had Ms Bailey not already been involved in high-profile litigation, it would not have been possible for her to demonstrate that the practice had any knowledge of her gender critical beliefs. The failure to call one important witness and the lack of credibility of others were also pivotal to the inferences drawn by the judge. As such, this judgment is unlikely to open the floodgates to similar claims. It does, however, highlight that claims of this sort can be successful. Businesses need to be aware that discrimination legislation does not only protect employees, but also customers and clients. Good practices used in dealing with employees can also be relied upon to ensure this type of discrimination does not occur — policies should be put in place and followed, the reasons for decisions should be recorded, and staff should be appropriately trained.
