S111 Equality Act 2010: when does liability occur?
The Employment Appeal Tribunal (EAT) has found that an LGBT charity's complaint to a barrister's chambers about 'gender critical' tweets did not induce or cause discrimination by the chambers.
Background
In the case of Bailey v Stonewall Equality Ltd and others, the Claimant was a barrister at Garden Court Chambers. This chambers was signed up to the Diversity Champions programme run by Stonewall.
The Claimant held gender critical views and tweeted about her objections to Stonewall's support of transgender people as well as about founding an LGB alliance group in response to what the Claimant called 'gender extremism'. These tweets led to the chambers receiving numerous complaints, including a complaint from Stonewall. In response, the chambers publicly tweeted to confirm that they will be investigating and will take appropriate action. The chambers' final report held that the tweets were likely to breach guidelines and asked for the Claimant to delete two tweets.
Following this, the Claimant brought a claim to the Tribunal against both Garden Court Chambers and Stonewall, claiming that she had been discriminated against due to her protected beliefs.
The claim against Stonewall was under s111 Equality Act 2010, being that Stonewall had caused or induced the discriminatory acts against her by the chambers. Under this section of the Act, a person must not instruct, cause or induce someone to discriminate against, harass or victimise another person, or attempt to do so.
First instance decision
The Tribunal found that Garden Court Chambers did directly discriminate against the Claimant because of her protected belief that women are defined by biological sex, rather than gender identity. However, the Tribunal held that Stonewall was not liable under s111 Equality Act 2010 as their complaint was not enough to amount to causation or inducement of any course of action by the chambers. It was held that the complaint was a protest, without a specific resolution in mind.
The Claimant appealed part of the decision to the EAT.
Unsuccessful appeal
The EAT has dismissed the appeal. To cause a discriminatory act, it must be shown that:
- Apart from the intervention of person A (Stonewall), the act of discrimination by person B (chambers) would not have occurred
- Having regard to all of the facts, it is fair or reasonable or just to make person A (Stonewall) liable for the discrimination
Stonewall's actions were a protest without a specific aim in mind. The Stonewall complaint did not meet the thresholds required by the legislation so it cannot be said that Stonewall induced the Chambers to discriminate against the claimant.
Learning points
There are no other reported authorities directly on what it means to cause or induce discrimination under section 111. This decision therefore provides helpful guidance on when a third party could be liable for causing or inducing a discriminatory act.
It is understood that the claimant may appeal the EAT's decision and we will continue to report on developments.