To what extent are third party organisations liable for causing or inducing an employer to discriminate against a member of staff?

That was the issue the Court of Appeal had to determine in Bailey v Stonewall (1) Garden Court Chambers (2) and others.

The law

Section 111 of the Equality Act 2010, prohibits a person from instructing, causing, or inducing another person to commit a discriminatory act against a third person.   

Facts

In 2022, Ms Bailey, a barrister at Garden Court Chambers brought a successful claim against her chambers after she was subjected to discrimination for holding gender critical beliefs including a belief about the “pernicious effect of Stonewall's campaign promoting gender self-identity”. She added Stonewall as a respondent to her claim, alleging that it had instructed, caused or induced that discrimination. 

Ms Bailey's principle complaint was that one of Stonewall's employees had complained to Garden Court that her views had put it in a “very difficult position” vis a vis its membership of Stonewall's diversity champion scheme and that they trusted it “will do what is right”. 

The tribunal accepted that this could be interpreted as Stonewall wanting Garden Chambers to get rid of Ms Bailey. But, it concluded that its complaint was “just a protest” about her views “with an appeal to a perceived ally in a ‘them and us’ debate”. 

Ms Bailey appealed this element of the decision to the EAT. It acknowledged that “but for” Stonewall's complaint, Ms Bailey would not have been discriminated against, but concluded that it wasn't reasonable to hold Stonewall liable for that outcome. That was down to Garden Chambers. In addition, the Stonewall staff member who had made these comments didn't have the requisite mental element necessary to establish a breach of the Equality Act. 

it therefore decided that the tribunal had been entitled to find that neither Stonewall or its employee was looking for any specific action to be taken against Ms Bailey.

Ms Bailey appealed to the Court of Appeal.

Decision

The Court of Appeal rejected Ms Bailey's appeal because:

• It is a well established legal principle that a person's actions might result in losses to another, without them being legally responsible for that loss.
• It is not enough for the purposes of s111 to show that “but for” the actions of another, discrimination wouldn't have occurred. That is part of the test, but once it has been established, the question the tribunal has to answer is should the defendant (in this case Stonewall) be liable for that discrimination? 
• To determine this a tribunal must look at all of the facts and decide what is fair and reasonable in the circumstances. That includes whether the precise damage suffered was forseeable. 

It was therefore open to the tribunal to conclude that the detriment suffered by Ms Bailey was attributable to Garden Court Chambers alone. 

The Court of Appeal also rejected Ms Bailey's claim that Stonewall had induced her discrimination. It said that inducing involves “at the very least, some element of deliberate conduct”. Given it had already rejected her submissions about Stonewall's action causing her discrimination (an easier case to prove) it's hardly surprising that it also rejected her appeal on this point.  

Ms Bailey has said that she intends to seek leave to appeal to the Supreme Court.

Why this case matters

This is the first significant decision examining the extent to which third parties can be liable for instructing, causing or inducing discrimination under s111 Equality Act 2010. Had the decision gone in Ms Bailey's favour, it may have, potentially, exposed third parties to liability if they had encouraged employers to put in place policies which are unlawful/discriminatory.

However, this outcome may not be the last word and we'll have to wait and see if Ms Bailey is given permission to appeal to the Supreme Court. 

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