Third-party liability under the Equality Act: limits of ‘causing or inducing’ discrimination

Background

In the case of Bailey v Stonewall Equality Ltd, the claimant, a barrister and tenant at Garden Court Chambers, brought discrimination and victimisation claims arising from the chambers’ response to her publicly expressed gender-critical beliefs. She succeeded against Garden Court Chambers in the Employment Tribunal and was awarded damages. No appeal was brought by the chambers.

The claimant also pursued a separate claim against Stonewall Equality Ltd, alleging that Stonewall had instructed, caused or induced the chambers to discriminate against her, contrary to section 111 of the Equality Act 2010. That claim was dismissed by the Employment Tribunal, and her first appeal was rejected by the Employment Appeal Tribunal.

The claim against Stonewall focused on a complaint email sent by Stonewall to Garden Court Chambers, criticising the claimant’s tweets and expressing concern about the impact of her views on Stonewall staff and the trans community. Following that complaint, the chambers widened their investigation into the claimant, and posted publicly that they were investigating her, an act which the Tribunal found to be discriminatory. The claimant argued that Stonewall’s complaint caused or induced Garden Court Chambers to discriminate against her. 

The Court of Appeal’s decision

The Court of Appeal unanimously dismissed the appeal. It upheld the Tribunal’s conclusion that Stonewall was not liable under section 111 for causing or inducing the chambers’ discriminatory treatment of the claimant.

The Court emphasised that section 111 requires more than a mere causal link in the broad sense. The correct approach is a two-stage test, firstly, to assess whether 'but for' the third party's actions, the respondent would have taken the discriminatory act. Secondly, the tribunal must assess whether it is fair, just and reasonable, having regard to the statutory purpose and the facts found, to attribute legal responsibility to the third party. This is not an open-exercise and the tribunal must have regard to the usual legal concepts which can limit liability, such as the presence of intervening acts which break the chain of causation. That evaluative exercise includes consideration of whether the alleged conduct was merely the occasion for the discriminatory act, rather than its effective cause.

The Tribunal considered Stonewall’s complaint was no more than a protest or expression of disagreement addressed to a perceived ally. The Tribunal had expressly rejected the suggestion that Stonewall intended, encouraged or sought any specific action against the claimant, or that its complaint influenced the outcome of the chambers’ investigation. Responsibility for the discriminatory treatment lay solely with the chambers’ own flawed investigative process, which broke the chain of causation.

The Court of Appeal rejected the argument that section 111 requires third parties to have acted "because of" a protected characteristic. This approach is relevant to direct discrimination and should not be read into section 111. Rather, the correct approach is to consider the third party's intentions or motivations as part of the second stage of the test, when considering if it was fair, just and reasonable to assign liability.

The Court also rejected the claimant’s argument that Stonewall had induced, or attempted to induce, discrimination. Inducement requires persuasion or encouragement to act. On the Tribunal’s findings, Stonewall did not seek any action to be taken against the claimant, and there was therefore no basis for liability under section 111(3).

The appeal failed on all grounds.

Learning points for employers

This decision provides important clarification on the limits of third-party liability under section 111 Equality Act 2010. Employers and organisations should note that criticism, protest or complaint from an external body will not, without more, amount to causing or inducing discrimination. Liability will depend on whether it is fair, just, and reasonable to attribute legal responsibility to the third party, including whether the third party’s conduct was an effective cause of the discriminatory treatment, rather than merely the context in which it occurred. The case also underlines that responsibility for discriminatory decision-making will ordinarily rest with the employer or decision-maker who controls the process, even where external pressure or commentary forms part of the background.

For more information or advice, please contact Elizabeth McTeigue in our Employment team.