Allison Bailey v Stonewall Equality Limited & Ors

A claim for causing a discriminatory basic contravention under section 111(2) of the Equality Act 2010 requires more than showing that A's act was a factual or “but for” cause of B's discriminatory act. The claimant must also show that, in the statutory context and on all the facts, it is fair, reasonable or just to hold A liable for causing that contravention. There is no fixed mental element and no freestanding requirement of reasonable foreseeability, although both intention and foreseeability may be relevant.

An inducement under section 111(3) is broadly persuasion. A must intend B to perform an act containing all elements of the basic contravention, including its mental element. A protest against protected views, without an intention to procure discriminatory treatment, does not satisfy either limb.

The claimant, a barrister and tenant of Garden Court Chambers, held gender-critical beliefs and beliefs concerning Stonewall's campaigning. The Employment Tribunal found that Garden Court Chambers had directly discriminated against her on grounds of belief when it dealt with Stonewall's complaint about her social-media posts. It dismissed her separate claim against Stonewall.

The complaint, made by Stonewall's Head of Trans Inclusion, was found to be a protest against the claimant's views, without a specific aim beyond possibly publicly dissociating Stonewall from them. Stonewall did not threaten Garden Court Chambers' participation in its Diversity Champions scheme and did not direct the complaint process.

The claimant appealed, contending that Stonewall caused or induced Garden Court Chambers' discriminatory treatment contrary to section 111(2) and (3) of the Equality Act 2010. The central issue was the meaning and application of causing and inducing a basic contravention under that section.

1. Appeal dismissed. The Employment Tribunal made no error of law in rejecting the claim that Stonewall caused, induced, or attempted to cause or induce, Garden Court Chambers' discriminatory determination of its complaint.
2. Section 111(2) of the Equality Act 2010 creates a free-standing statutory tort. A must actually cause B to commit the basic contravention, not merely cause B to take the act or omission which later results in discriminatory treatment. The court adopted a two-stage approach: A's conduct must be a “but for” cause of B's contravention; and it must be fair, reasonable or just, having regard to the statutory context and all the facts, to make A liable. There is no fixed mental element and reasonable foreseeability is not a statutory requirement, though both may inform the evaluative inquiry.
3. Section 111(3) means that A must intentionally induce, in the broad sense of persuade, B to perform an act or omission containing every element of the basic contravention, including any mental element. Inducement may be verbal persuasion alone or may involve a benefit or threat. The separate wording of section 111(2) means that unintended consequences may found causation but cannot by themselves establish inducement.
4. The Tribunal was entitled to find that Stonewall's complaint was only the occasion, and a factual “but for” cause, of the later discriminatory outcome. Responsibility for determining the complaint in a discriminatory way lay with Garden Court Chambers alone. The complaint was a protest, not a threat, instruction or attempt to procure discriminatory treatment because of the claimant's beliefs. It was therefore neither fair, reasonable nor just to impose section 111(2) liability, and the requisite intentional inducement under section 111(3) was not established.

• Employment Appeal Tribunal: appeal dismissed: [2024] EAT 119.
• Employment Tribunal: upheld direct belief-discrimination claims against the second and third respondents, but dismissed the section 111 claim against Stonewall. The lower judgment's citation is not stated in the judgment.