Bailey v Stonewall: Causing and Inducing Discrimination
Aug 28, 2024
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Daniel Isenberg, an expert in employment discrimination law, engages in a thought-provoking discussion with Oliver Mills about the Bailey v Stonewall Equality case. They delve into when a third party can be held liable for discrimination and the challenges of balancing personal beliefs with professional standards. The conversation highlights the intricacies of proving discrimination claims under the Equality Act, exploring advocacy's role versus inducement from Stonewall, and the significant implications for future legal interpretations.
The Employment Appeal Tribunal clarified that for a third party to be liable for discrimination, distinct intent to induce such actions must be established.
The case emphasizes the significance of a two-stage test in evaluating discrimination claims, focusing on factual causation and fairness in liability assessment.
Deep dives
Background of the Case
The case involves a claim brought by a barrister, Ms. Bailey, against her former chambers and the charity Stonewall. Central to the claim were her gender-critical beliefs, which were expressed through various provocative tweets on social media, specifically about Stonewall and its activities. One particularly contentious tweet alleged that Stonewall hired someone with the intent of coercing young women into inappropriate situations. This tweet led to complaints against her and sparked a debate within her chambers on whether her social media activity constituted discrimination against her beliefs.
Chambers' Response to Complaints
Initially, an internal investigation concluded that Ms. Bailey's tweets, though deliberately provocative, did not breach Bar Standards Board guidelines. However, after further complaints, a final report suggested that the tweets were likely to violate those guidelines. The employment tribunal ultimately found that the chambers had discriminated against Ms. Bailey based on her protected beliefs. This was evidenced by the chambers' public statement regarding the complaints and their final report, which the tribunal found reflected less favorable treatment due to her gender-critical stance.
Claims Against Stonewall
In addition to her claims against her chambers, Ms. Bailey claimed that Stonewall induced or caused discrimination against her. The tribunal concluded that Stonewall's involvement was more of an advocacy role rather than an active inducement or instruction to the chambers to discriminate. Despite the presence of a service relationship between Stonewall and the chambers under the Diversity Champions Scheme, the tribunal found that there was no clear line of causation linking Stonewall's actions to the alleged discrimination against Bailey. As a result, her claims against Stonewall were ultimately dismissed, highlighting the need for evidence of intentional wrongdoing.
EAT's Ruling on Inducement and Causation
The Employment Appeal Tribunal (EAT) affirmed the tribunal's decision, particularly focusing on the definitions of inducement and causation. It highlighted that inducement requires a mental element, meaning the inducer must intend to persuade someone to act in a discriminatory manner. In contrast, causation does not have the same mental requirement, leaving it open to broader interpretation. The EAT established a two-stage test: first, confirming factual causation through a 'but for' analysis, followed by an assessment of whether holding the party liable is fair, just, or reasonable, leaving considerable room for legal interpretation in future cases.
This month Daniel Isenberg talks to Oliver Mills about Bailey v Stonewall Equality Ltd [2024] EAT 119. When will a third party be liable for instructing, inducing or causing someone else’s act of discrimination? They discuss this important new judgment from Mr Justice Bourne on the application of s.111 Equality Act 2010.