Background:

The claimant, a barrister, believed that a woman was defined by her sex, and disagreed with those that said it was defined by her gender and that it was for an individual to identify. Her chambers joined the respondent’s diversity champions scheme. The claimant disagreed with the charity’s position on trans rights, and she posted comments on social media regarding her beliefs.

The charity’s Head of Trans Inclusion complained to the chambers about the claimant’s social media posts. This complaint cited that it put the charity’s relationship with the chambers in a difficult position. This led to an investigation by the chambers and that outcome included some criticisms of the claimant. The claimant brought a claim relating to belief discrimination by the chambers but also against the charity.

Outcome:

At first instance, the Tribunal upheld the claim against the chambers citing failings in the investigation. The claim was dismissed against Stonewall with the Tribunal finding that the complaint from the Head of Trans Inclusion was not to cause the Chambers to act discriminatorily and was not a prelude to the Chambers losing their diversity status. Whilst the leaders of the Chambers were worried about losing such status the Tribunal found that that was their own fear and was not part of the complaint.

The claimant appealed the decision relating to the charity. The argument was that the charity had caused the chambers to act discriminatorily against her. This was in line with Section 111 of the Equality Act 2010 which stated that person A must not instruct person B to contravene the relevant provisions. The legislation did not set out the test for causation in this respect but the EAT held that a claim would not succeed unless person A actually caused the substantive contravention – that being they actually caused the second person/body to commit the act or omission because of the protected characteristic. So, whilst a ‘but for’ sense would be able to draw the line between the complaints from Stonewall and the actions of the chambers, it was not reasonable to hold the charity liable for the outcome. They had to take into account the subjective intentions of the Head of Trans Inclusion and it was not to have a discriminatory act carried out. Indeed, the chambers which specialised in equality law could be expected to weight such a complaint impartially without it being directed by the complainant. Accordingly, the appeal was dismissed.

Practical Guidance for Employers:

Considering that the chambers in which the claimant worked is one which specialises in equality law issues, it demonstrates the extent to which it can be very difficult to discern what is discriminatory and what is not when it comes to competing rights such as the views on sex and gender. This case demonstrates a point about liability for those who are involved but not the decision makes. The causation is a higher level in that it must have actually caused the outcome rather than it being merely linked to the outcome as would be seen with the ‘but for’ test.

https://assets.publishing.service.gov.uk/media/66a0ce77fc8e12ac3edb0383/Allison_Bailey_v_Stonewall_Equality_Ltd___Others__2024__EAT_119.pdf