Comments
There was no directly relevant existing case law on this issue, so it seems likely that there will be further cases (or possibly an appeal in this case) challenging whether the EAT has adopted the right tests. Even if the fair, reasonable or just test is correct, it provides ample scope for debate as to which side of the line a particular set of facts falls.
Although Stonewall won in this instance, the case highlights that a service provider must be aware of the possible consequences of its actions in relation to third parties. For example, the outcome might have been different in this case, if Stonewall had intimated a threat to withdraw diversity champion status.
It is worth noting that there is some case law commentary to the effect that group companies can potentially fall within the scope of the protections from instructing, inducing or causing discrimination, even though they might not be service providers to each other. Although this might be challenged in a future case, it again demonstrates the potentially broad reach of the Equality Act 2010 (EqA).
In more detail
Background
This case concerned a claim by Ms. Bailey, a barrister, against her chambers, Garden Court Chambers (GCC), as well as the charity Stonewall. Stonewall provided services and accreditation to GCC through its diversity champion scheme.
Ms. Bailey holds gender-critical beliefs. She made public statements, including on Twitter, about those beliefs, which attracted some critical tweets. This led to GCC conducting an investigation into Ms. Bailey's comments and announcing it was doing so in a tweet, as well as later upholding a complaint by Stonewall about some of her tweets. Ms. Bailey alleged that these actions by GCC amounted to direct discrimination against her on the ground of belief and further alleged that Stonewall had either induced or caused GCC to commit the discrimination.
Ms. Bailey won her claim against GCC The employment tribunal found that Ms. Bailey's beliefs were protected and that GCC tweeted about its investigation because of those beliefs; i.e., they disagreed with Ms. Bailey's beliefs and wanted to let it be known publicly that they were doing something about it. The tribunal also concluded that saying that there would be an investigation was not neutral; it implied that something wrong had occurred. As for the investigation outcome, the tribunal found that this was materially influenced by disapproval of Ms. Bailey's beliefs.
However, the tribunal rejected Ms. Bailey's claim against Stonewall about its complaint to GCC. It found that the complaint had just been a protest; Stonewall had not sought a specific outcome and had not threatened withdrawing GCC's diversity champion status.
Ms. Bailey appealed the decision in respect of the Stonewall claim.
EAT decision
The EAT rejected the appeal.
The relevant provisions of the EqA prohibit person A from instructing, causing or inducing person B to do anything in relation to person C that amounts to a "basic contravention". A basic contravention is essentially unlawful discrimination, harassment or victimisation, or knowingly aiding the same.
Person A must also be in a position to commit a basic contravention in relation to B. This means that A and B must be in one of the various types of relationships that the EqA governs. For example, A must be B's employer or, as in this case, A must be a service provider to B.
The EAT noted that there was no direct case law on what constitutes instructing, causing or inducing discrimination. Drawing on the intent of the EqA (to provide a broad-ranging set of protections against discrimination) and some related caselaw, the EAT gave the following guidance:
Instructing discrimination requires intention, meaning that person A must know what it is that they are instructing person B to do, and that act, as instructed, must contain all the elements of the type of unlawful discrimination that person B would commit by following the instruction. This means, for example, that:
- In relation to direct discrimination, person A must instruct person B not merely to treat person C less favourably than they treat or would treat others, but must instruct person B to do so because of a protected characteristic (whether consciously or subconsciously).
- In relation to indirect discrimination person A must simply instruct person B to apply a provision, criterion or practice (PCP) that places people with a protected characteristic at a disadvantage as compared to people who don't share the characteristic, and where the PCP cannot be objectively justified. Since person B can be liable without knowing or intending that the PCP has that effect, so can person A.
Inducing discrimination also requires an element of intent, and the EAT held that it is broadly synonymous with persuading. An analysis that is similar to instructing discrimination therefore applies.
As for causing discrimination, the EAT identified two necessary elements. The claimant must show both:
- That person A's conduct causally contributed to person B's commission of the prohibited act on a "but for" basis.
- The causal connection is such that person A ought to be held liable. This must be assessed on the basis of whether it is fair, reasonable or just, on the facts of the case, to make person A liable.
The EAT expressly rejected a test of whether the alleged discrimination was a reasonably foreseeable consequence of A's conduct, although it acknowledged that foreseeability might be a relevant consideration.
The EAT concluded by holding that, on the facts of this case, the tribunal had been entitled to find that Stonewall was not liable for inducing or causing GCC's discrimination against Ms. Bailey. There was no finding of intent to induce. In relation to causing discrimination, the key point was that responsibility for determining Stonewall's complaint in a discriminatory way lay only with GCC. For that reason, although the complaint was the "occasion" for it happening (and so could be regarded as causing it in a "but for" sense), and although there was a nexus between Ms. Bailey's views and the making of the complaint, it would not be reasonable to hold Stonewall liable for that discriminatory outcome.
Bailey v. Stonewall Equality Ltd, EAT
