Bailey v Stonewall: What is inducement to discriminate?

The Heads of Chambers were “unsympathetic, whether with her opinion or her way of expressing it” and did not follow their own complaints procedure. By prematurely tweeting that they were investigating, they “suggested she had done something which at the least required investigation, and so might lead to action, which could suggest some punishment.” 

 

Ms Bailey had also tried to bring a claim against the LGBTQ rights organisation Stonewall for inducing her employer to discriminate against her. After the initial tribunal found Stonewall not liable, she appealed the decision. The Employment Appeal Tribunal (EAT) reached the same conclusion. 

 

 

Section 111 of the Equality Act makes it “unlawful for a person to instruct, cause or induce someone to discriminate against, harass or victimise another person, or to attempt to do so.” 

 

Both the victim of discrimination and the organisation induced to discriminate can claim against the body that induced the discrimination for the negative effects. Here only Bailey, the victim of the discrimination, was trying to make a claim. 

 

The person inducing the discrimination must have a relationship with the person or organisation they are influencing. (The tribunal was satisfied there was a relationship between Stonewall and Garden Court Chambers.) 

 

The appeal tribunal in Ms Bailey’s case considered that ‘induce’ was synonymous with ‘persuade’ and could include verbal persuasion, incentives or penalties. To prove inducement, the tribunal wanted Bailey to show that the discrimination would not have happened without the complaint, and that it was fair and reasonable to hold Stonewall liable. 

 

 

Allison Bailey had become vocal online about her gender critical beliefs and her criticism of Stonewall’s campaigning. One particularly contentious post promoted the launch of the LGB Alliance, an organisation campaigning for gay, lesbian and bisexual rights, based on gender critical principles. 

 

The Chambers began receiving messages via Twitter and their website complaining about Bailey’s posts. 

 

The Stonewall Trans Advisory Group (STAG) encouraged members to write to the chambers raising concerns about Ms Bailey. This message was delivered at a meeting at Garden Court Chambers on 23rd October and via the STAG Facebook page. 

 

Kirrin Medcalf, Head of Trans Inclusion at Stonewall, was a member of this group and present at the meeting. He replied to the Facebook post with “Done” and commented that he had found another of Ms Bailey’s tweets which was ‘offensive’. 

 

On 31st October, Garden Court Chambers received his complaint, in which he identified himself as Head of Trans Inclusion at Stonewall. He praised Garden Court Chambers relationship with the trans community, but stated that: 

 

 

He also raised concerns about some of Ms Bailey’s other tweets, which had not previously been raised with the chambers. The chambers extended their investigation to incorporate these additional tweets. 

 

Ms Bailey interpreted the complaint as suggesting her chambers would need to dismiss her in order to continue their relationships. The tribunal did not dismiss this entirely, stating that it was “certainly one reading.” So why was Stonewall not liable? 

 

 

Mr Medcalf gave a different interpretation, saying that he was referencing the safety of Stonewall’s staff. The tribunal described this as “wholly obscure to the recipients. Other than the final mention of safety, this concern could not be detected.” 

 

He said he had failed to be specific because he “had his advocacy hat on.” The tribunal interpreted that he did not have a specific aim in mind, other than to protest. This was supported by the fact that neither Mr Medcalf nor Stonewall follow up the complaint even during when meeting with Garden Court Chambers, despite a lack of response. 

 

The tribunal accepted that, if the leaders of Garden Court Chambers had interpreted the risk of brand damage, this was not Medcalf’s intent and so it was not reasonable to hold Stonewall liable for it. 

 

 

Garden Court Chambers response was influenced by their membership of the Diversity Champions scheme. Maya Sikand, a member of chambers who investigated the complaints, comments “given that we are Stonewall Diversity Champion, I do not think she should be maligning them”. The Head of Communications and Marketing stated “The other key issue is that we are signed up Stonewall Diversity Champions with their logo on our website, and accreditation we signed up to as a Chambers, we have Allison criticising Stonewall on Twitter.” 

 

However, Medcalf’s complaint made no mention of the Diversity Champion scheme. Medcalf himself was not involved in the Diversity Champion scheme, and did involve the staff who managed the relationship for either organisation. In fact, the tribunal concluded that Medcalf may not even have known the chambers were Diversity Champions. 

 

This supported the finding that Mr Medcalf’s complaint was simply a protest, not an attempt to use the chamber’s Diversity Champion status to induce the discrimination. 

 

 

Although the Chambers considered their relationship with Stonewall, this did not automatically make Stonewall liable. Garden Court Chambers were responsible for their response, and they alone decided to respond in a discriminatory manner. 

 

In fact, the chambers’ posted about investigating the concerns raised on 24th October, a week before receiving the complaint from Stonewall. 

The leaders of the Chambers had formed their own fears about damage to their relationship with Stonewall, and how this could affect their reputation. Seeing Stonewall as an ally, their reactions was “to consider whether there were any grounds for finding the claimant in the wrong.” 

 

 

The tribunal accepted that Ms Bailey’s protected belief was the cause of Garden Court Chambers response, and ‘significantly influenced’ Mr Medcalf to make the complaint. 

 

However, the tribunal found that the complaint itself was not an attempt to make the chambers discriminate based on Ms Bailey’s beliefs. 

 

The content of the complaint focused on Ms Bailey’s manifestation of that belief. (Even where a belief is protected, individuals do not have the right to manifest it in a way that is incompatible with the rights of others.) The tribunal felt there was “a lack of correspondence between the content of the complaint and its outcome.” 

 

 

The tribunal found that it was not important whether Stonewall could have foreseen their complaint leading to discrimination. The important question was whether it was “fair or reasonable or just to find Stonewall liable” for causing the discrimination. 

 

As an aside, the tribunal did note that the chambers specialised in equality law, and so it would be unlikely that Stonewall would anticipate them discriminating. It was reasonable to expect them to consider the complaint impartially and reach a lawful conclusion. 

 

 

It is unlawful to induce discrimination, and in some cases both the victim and the organisation induced to discriminate could have claims. However, it will always depend on the individual facts of the case. 

 

The employer would need to prove that the other party intentionally persuaded them to discriminate and that it is just and reasonable to hold them liable. ‘Fair and reasonable’ is not clear cut, so a judge may not agree with your interpretation. This case shows that this is a complex area. Employers should not rely on being able to recover damages to cover their losses as a result of being induced to discriminate. 

 

Organisations are under more pressure than ever to get involved in cause marketing, social responsibility and diversity initiatives, and these can be beneficial. However, these initiatives should never be prioritised above employee’s rights. Remember that single-interest groups (like Stonewall) exist to lobby for the interest of that one group. Where you prioritise such relationships, you could end up prioritising that group over others. Garden Court Chambers were influenced by their reputation with the LGBTQ community as a Stonewall Diversity Champion. But ultimately the mistake cost them, not Stonewall. 

 

It is your responsibility as an employer to treat your employees lawfully and fairly. If you feel there is a conflict, seek advice from an independent, qualified legal advisor.