Bailey: Enormously important moment
The Supreme Court is to hear a barrister’s claim that LGBT charity Stonewall “caused or induced” discrimination against her by her chambers.
The court has granted Allison Bailey permission to appeal the decision last December of the Court of Appeal to uphold the decision of Mr Justice Bourne [1] in the Employment Appeal Tribunal 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, Lady Justice Whipple 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”.
In granting permission, the Supreme Court identified two issues. First, did Stonewall cause GCC to discriminate against Ms Bailey contrary to section 111(2) of the Equality Act 2010? Second, what is the correct approach to causation for the purposes of section 111(2)?
Ms Bailey, who is no longer a member of GCC, described receiving permission as “an enormously important moment”.
She explained: “The fact that permission has now been granted after I lost against Stonewall at first instance, in the Employment Appeal Tribunal, and after the Court of Appeal itself refused permission, is highly significant.
“For years, I have argued that this case raises issues that go far beyond me personally. Those issues include the lawful limits of institutional pressure, the role and influence of Stonewall, and the ability of women to defend sex-based rights without suffering professional retaliation…
“This litigation has already had an impact. It has helped expose the extent of Stonewall’s influence and has become an important focal point for many concerned about women’s rights, LGB rights, child safeguarding, freedom of expression and institutional accountability.”