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Chambers and Stonewall fail to strike out barrister’s discrimination claim

Bailey: Arguable case

Stonewall sought to pressure a leading chambers to remove a barrister who was highly critical of the LGBT charity’s approach to transgender rights, it has emerged.

It also threatened Garden Court Chambers over their ongoing relationship – Garden Court is a member of the Stonewall diversity champions programme – if the set did not take action against Allison Bailey.

At the heart of the case is Ms Bailey’s opposition to replacing sex with gender when it comes to identity and Stonewall’s policy of accepting as women people who were born as men but who then identify as women.

Writing last year, she said: “As a woman, a lesbian, a criminal defence barrister and someone who has had extensive experience of male violence, abuse and oppression of women, I believe that there should be some exceptions to males being admitted into female spaces.”

Ms Bailey has brought an employment tribunal claim against Garden Court and Stonewall. She says that, in December 2018, she made clear in an email to all members that she was opposed to chambers associating with Stonewall through the diversity champions scheme.

In the email, she alleged that Stonewall was in breach of the Equality Act 2010.

In October 2019, Ms Bailey co-launched and tweeted about the LGB Alliance, a campaigning group which says “attempts to introduce confusion between biological sex and the notion of gender are harming LGB people”.

Stonewall complained about her to Garden Court. It confirmed publicly that it was investigating her tweets and then upheld complaints about two of them, but she rejected a request to remove them.

Ms Bailey is claiming for victimisation and/or indirect sex or sexual orientation discrimination against Garden Court, and that Stonewall instructed, caused or induced that unlawful conduct.

She alleges that she suffered various detriments, including a significant downturn in instructions and consequent loss of income.

At a hearing before Employment Judge Stout last month, the respondents failed in a bid to strike out the claims.

In relation to victimisation, the judge said [1] there was evidence that some members of chambers “reacted adversely” to Ms Bailey’s views of Stonewall and her launch of the LGB Alliance, regarding her views as “bigoted”.

Though Ms Bailey was not able at this stage to show that the individuals played a “material role” in the detriments she alleges she suffered, Judge Stout said she had established that “she has a reasonably arguable case on the merits”.

There was also material “which shows there was interaction between one or more members of chambers and persons who were at least associated with Stonewall… that could be said to amount to ‘collusion’”.

On indirect discrimination, the judge said there was “considerable force” in the chambers’ argument that the views expressed by those individuals were simply their personal views that could not be attributed to the chambers.

But there was evidence that those barristers also sought to communicate them to the heads of chambers and the management committee and could have been acting as agents, so she could not say the claim had no or even little prospect of succeeding at trial.

Judge Stout suggested the claimant’s argument that Garden Court allowed Stonewall to direct its complaint process was put too high.

“However, the Stonewall complaint of 31 October 2019 [2] in itself plainly seeks to put pressure on chambers to take action against the claimant, indeed to the extent of urging chambers to remove the claimant from chambers, and accompanies that with a threat about the ongoing relationship between chambers and Stonewall itself if chambers does not take action.

“There is also evidence that during the investigation there was ongoing interaction between members of chambers… and Stonewall… and that the intention of this interaction was to seek to persuade (at least) chambers to take action against the claimant.”

Similarly, it was “plainly arguable from the terms of the complaint of 31 October 2019 that Stonewall sought to induce chambers to subject the claimant to a detriment because of her publicly expressed beliefs and the allegations that she had made against Stonewall”.

Judge Stout added: “If the claimant establishes that taking action against her for her beliefs is unlawful indirect sex or sexual orientation discrimination (which is not a straightforward issue), and that the allegations are indeed protected acts, and if the necessary causal connection to a detriment for the purposes of section 111(5)(a) [of the Act] can be established, then she will succeed at trial.”

She concluded that the claim was “at least reasonably arguable and stands more than little prospect of success”.

The case came to public attention last summer after a row blew up [3] over what Ms Bailey wrote on her page on crowdfunding website CrowdJustice.

She has now raised £150,000 [4] from more than 3,600 donations.