Allison Bailey v Stonewall Equality Ltd & Ors

Under section 111(2) of the Equality Act 2010, but for causation is only a threshold requirement. The court must then evaluate the defendant’s causal contribution and whether liability is fair, reasonable and just, having regard to statutory purpose and limiting legal concepts such as novus actus interveniens. Section 111(2) contains no fixed because of mental element, although motivation may be relevant at the evaluative stage. Direct causation and foreseeability are not formal additional criteria. Inducement under section 111(3) requires deliberate persuasion or prevailing upon another person. A communication that is merely a protest, without seeking specific action, does not induce or attempt to induce a basic contravention.

The appellant, a barrister and tenant of Garden Court Chambers, succeeded in discrimination and victimisation claims against the Chambers and received damages. The Employment Tribunal dismissed her related claim against Stonewall Equality Ltd under section 111 of the Equality Act 2010, finding that Stonewall’s complaint was no more than a protest and had not caused or induced the discriminatory outcome. The Employment Appeal Tribunal dismissed her first appeal in a judgment reported at [2024] EAT 119 and [2025] ICR 46.

The Court of Appeal considered the proper construction of section 111(2), (3) and (8), including causation, inducement, foreseeability, intervening acts and the need for remittal.

Lady Justice Whipple delivered the judgment of the court. Lord Justice Newey and Lord Justice Bean agreed. The appeal was dismissed on all grounds.

1. The Employment Tribunal’s primary findings were open to it. It had found that Stonewall’s complaint was merely a protest and an appeal to a perceived ally, that neither Stonewall nor Kirrin Medcalf sought specific action against the appellant, and that the complaint did not affect the outcome of the Chambers’ investigation. The appellant could not recast those findings on appeal. The associated perversity challenge therefore failed.
2. The words “causing” and “inducing” in section 111 must be construed objectively, in their statutory context and in light of the legislative purpose of eliminating discrimination. For section 111(2), but for causation is a threshold inquiry. It is not sufficient by itself. The second stage requires an evaluative judgment about the causal potency of the defendant’s conduct and whether, having regard to the statutory purpose, the nature and scope of the obligation and relevant legal filters, the defendant ought fairly, reasonably and justly to be held liable.
3. The mental element required for the underlying direct discrimination or victimisation remains relevant to the immediate discriminator. However, section 111(2) does not import the statutory “because of” wording as a fixed mental element for the alleged causer. Intention, motivation and influence by a protected characteristic or protected act are matters for the second-stage evaluation.
4. “Direct cause” is not a separate criterion. An indirect contribution may suffice if it is sufficiently causally effective. Foreseeability is relevant to the evaluative assessment but is not a formal requirement. Novus actus interveniens is available as a limiting concept. The basic contravention may, on the facts, be the sole effective cause of the detriment.
5. Applying those principles, the Tribunal was entitled to treat the complaint as the occasion for the Chambers’ later investigation, rather than its effective cause. The Chambers’ own acts and omissions eclipsed Stonewall’s causal contribution. Bullimore v Pothecary Witham Weld was distinguishable because both defendants there had materially contributed to the loss.
6. Inducement under section 111(3) means persuading, prevailing upon or bringing about. It involves at least deliberate conduct directed towards bringing about action. Since Stonewall was not seeking any specific action, neither completed nor attempted inducement was established. There was no reason to remit the case because the outcome was inevitable on the Tribunal’s findings under either formulation of the test.

• Court of Appeal (Civil Division): dismissed the appeal against Stonewall on all grounds in [2025] EWCA Civ 1662.
• Employment Appeal Tribunal: dismissed the first appeal in [2024] EAT 119, reported at [2025] ICR 46.
• Employment Tribunal: by a reserved judgment dated 25 July 2022, dismissed the claim against Stonewall but upheld specified discrimination and victimisation claims against Garden Court Chambers.