Bailey: Aspects of decision concerning
The Court of Appeal has rejected a barrister’s claim that LGBT charity Stonewall “caused or induced” discrimination against her by her chambers.
Lady Justice Whipple upheld the decision of Mr Justice Bourne [1] in the Employment Appeal Tribunal last year that responsibility for determining the complaint against Ms Bailey in a discriminatory way “lay only with” Garden Court Chambers (GCC).
In July 2022, an employment tribunal (ET) ordered GCC to pay Ms Bailey damages of £22,000 [2] for injury to feelings over the way it investigated complaints about her gender-critical views as expressed on social media. It found she was discriminated against or victimised in two out of five alleged detriments.
GCC was later also ordered to pay costs of £20,000 [3].
However, the ET rejected Ms Bailey’s claim that Stonewall had directed GCC’s investigation process.
It found that the email it sent was “the occasion of the report” produced by the investigator into the tweets that led to GCC taking action and “no more”.
“Was the letter an attempt to cause discrimination against the claimant?” the ET said. “We concluded that it was no more than protest, with an appeal to a perceived ally in a ‘them and us’ debate.” Bourne J dismissed Ms Bailey’s appeal.
Giving the Court of Appeal’s unanimous decision [4] on the second appeal, Whipple LJ said it “would have been better” if the ET had given a fuller explanation of its reasons but considered its analysis to be “clear enough”.
“The notion that a person’s actions can be the occasion of subsequent loss, without in law causing that loss, is well established.”
Whipple LJ considered it was open to the ET “to conclude that the acts of GCC broke the chain of causation between Stonewall’s complaint and the discrimination suffered by Ms Bailey”.
It had identified the various actions of GCC which led to the detriment and found that those were actions attributable to GCC alone.
“It characterised the Stonewall complaint as the occasion for those failings, no more. This was a coherent conclusion that the causal potency or efficacy of Stonewall’s actions was eclipsed by GCC’s actions.
“I have interpreted that as a finding of novus actus interveniens. The ET conducted the exercise required of it in a lawful manner.”
Writing on her website, Ms Bailey said: “Certain aspects of the judgment and its reasoning are surprising and very concerning. I will need to review it in detail with my legal team before saying more… In the meantime, please don’t lose heart. I certainly haven’t.”
The barrister, who is a high-profile campaigner for gender-critical views, successfully crowdfunded just over the £550,000 she sought to fund the case, with 9,043 individual donations.
She told donors that a secondary goal of her claim was to “stop Stonewall from policing free speech via its Diversity Champions scheme”.