Employment & Pensions Blog: Gender Critical Barrister’s Appeal Dismissed

In Bailey v Stonewall Equality Ltd and Others, the Employment Appeal Tribunal (EAT) considered section 111 of the Equality Act 2010, which makes it unlawful to instruct, cause or induce someone to discriminate against, harass or victimise another person, or to attempt to do so. 

Background

Allison Bailey was employed as a barrister by Garden Court Chambers (GCC). Bailey holds a gender critical belief that all women are identified by their sex, and that it is not for an individual to identify their own gender. When GCC became a diversity champion for the LGBT charity Stonewall Equality Ltd (Stonewall), Bailey took issue with this because of her belief. She was also involved in setting up the Lesbian Gay Alliance, an association based on gender critical principles, which resisted transgenders self-identifying as women. Stonewall subsequently complained to GCC about Bailey's tweets, stating they were incompatible with trans-rights views. GCC publicly tweeted that it would investigate the complaints and asked Bailey to remove her tweets. 

Bailey argued that it was detrimental to her that GCC suggested (publicly) that the complaints needed investigation. The investigation upheld aspects of Stonewall’s complaint and Bailey subsequently brought a number of claims to the Employment Tribunal (ET) against GCC and Stonewall. She claimed that GCC had directly discriminated against her on the basis of her protected beliefs and victimised her, and that Stonewall had instructed, caused or induced discrimination by GCC, or attempted to do so, contrary to section 111 of the Equality Act 2010.

The ET found that GCC had discriminated against and victimised Bailey because of her gender critical beliefs, as the announcement of the investigation, and upholding the complaint, were both detriments she suffered because of her protected beliefs.

However, the ET dismissed her claim against Stonewall finding that they did not instruct, induce, or cause detriment to her, nor did they attempt to do so, by making the complaint. Bailey appealed to the EAT in respect of Stonewell, on the basis that they did induce or cause GCC to discriminate against her because of her gender critical belief. 

EAT Judgment 

The EAT dismissed the appeal agreeing with the ET’s finding. The EAT considered the legal test and clarified that a claim will only succeed under section 111 of the Equality Act 2010, if: 

1. An individual caused or contributed to contravention of the Equality Act on a ‘but for’ basis; and 
2. Making that individual liable for this contravention would be fair, reasonable, or just. 

In this case, although the EAT found that “but for” Stonewall’s complaint there would not have been an investigation, the responsibility for determining the complaint in a discriminatory way laid only with GCC and so it was not fair, reasonable, or just to find Stonewall liable. Of note to the EAT was that Stonewall’s complaint was made as a “protest” without any specific aim in mind and was not deemed a threat, and therefore this did not support Bailey’s argument that GCC would be significantly influenced by Stonewall. 

Comment

This is a reminder for employers to deter from engaging in knee jerk reactions off the back of third-party complaints without thoroughly considering the potential issues that may arise as a result. Particularly when dealing with complex legal issues such as protected beliefs, and whether certain actions amount to the unlawful manifestation of such beliefs.

For more information, please contact a member of our Employment Team.