Tribunal Finds in Favour of Barrister Holding Gender Critical Views
The Employment Tribunal (ET) upheld a barrister's complaints of direct discrimination and victimisation arising out of social media posts she wrote which were critical of Stonewall's position on gender theory.
What Were the Facts of the Case?
In Bailey v Stonewall Equality Ltd, Garden Court Chambers Ltd and others, the claimant, Ms Bailey, has been a barrister at Garden Court Chambers (GCC) since 2004.
GCC signed up to Stonewall's Diversity champions scheme, which aimed to develop inclusive workspaces. Ms Bailey objected to GCC's association with Stonewall as she believed that certain beliefs advocated by Stonewall were detrimental to women (in that they deny female only spaces) and to lesbians (in that they label them as bigoted for being same-sex attracted). Ms Bailey's views about Stonewall were informed by her belief that women are defined by biological sex rather than gender identity.
Ms Bailey made a number of posts on twitter related to the topic of gender and sex beliefs. One of her posts in October 2019 led to a 'Twitter storm'. This involved members of the public tweeting GCC, including one of a screenshot of a complaint that had been sent to GCC. GCC posted a tweet which stated that it was "investigating concerns raised about Allison Bailey’s comments in line with our complaints/[Bar Standards Board] policies".
Stonewall subsequently made a separate complaint to GCC in relation to a number of Ms Bailey's tweets. The investigating officer at GCC considered that two of Ms Bailey's tweets may offend some of the Core Duties of the Bar Standards Handbook and or the Bar Standards Board (BSB) guidelines. Ms Bailey responded to the complaint at length, denying she was in breach and providing detailed explanations for her tweets. GCC sought advice from the Bar Council Ethics Committee on the issue, but did not send over a copy of Ms Bailey's response to the complaint for the Committee's consideration. GCC ultimately upheld Stonewall's complaint and concluded that the BSB would be likely to find that the tweets breached one or more of the Core Duties. GCC asked Ms Bailey to delete the tweets.
Ms Bailey brought claims of direct discrimination, indirect discrimination and victimization against GCC. She also brought claims against Stonewall on the basis that it instructed GCC to discriminate against her.
What Does the Law Say about Discrimination?
Under the Equality Act (EA) 2010, a person discriminates against another if they treat them less favourably than others because of a protected characteristic. Protected characteristics include gender reassignment, sex, sexual orientation, and religion or belief. The individual claiming discrimination needs to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.
Victimisation is where someone subjects another person to detriment because that person has done a protected act, or because they suspect that person has done or may do a protected act.
The ET's Decision
The ET found that all of Ms Bailey's pleaded beliefs were genuine, on application of the Grainger criteria. The parties were agreed that Ms Bailey's response to Stonewall's complaint was a protected act. The ET considered each of Ms Bailey's tweets and found that a select number were also protected acts under the EA.
The ET examined the communications that led to GCC's tweet stating that it was investigating Ms Bailey. Ms Bailey's sense of grievance stems from use of work 'investigation'. The ET agreed that it was reasonable for Ms Bailey to be aggrieved by the tweet. It suggested that she had done something to require investigation which could lead to action, suggesting a punishment. The ET did not accept GCC's argument that it was trying to damp down the 'Twitter storm', it felt that GCC had picked sides. The ET held that GCC's response to Ms Bailey's tweet amounted to direct discrimination. The ET examined the treatment of a comparator, relating to an antisemitism complaint, and found no similar response from GCC. It concluded that Ms Bailey's less favourable treatment was due to her views, not the manifestation of her belief.
Ms Bailey alleged that the detriment was the upholding of Stonewall's complaint and GCC's finding that her tweets were likely to breach the BSB's core duties. The question for the ET was whether Ms Bailey's sense of grievance at the outcome was reasonable. The ET found that yes, it was. The ET found that GCC had outsourced the decision to the Ethics Committee, and yet didn't supply it with a full account by omitting Ms Bailey's detailed response and explanation of her tweets. The ET concluded that Ms Bailey's protected belief influenced the finding of the investigation and that she had suffered direct discrimination. The ET also held that Ms Bailey had also been victimised as a result of the protected tweets.
Ms Bailey's claim against Stonewall was dismissed as the ET found that lodging a complaint did not amount to an instruction to discriminate. GCC was ordered to pay Ms Bailey £22,000 compensation for injury to feelings (including aggravated damages) plus interest.
What Can Employers Learn From This Case?
This case is one in a recent line of case law around protected beliefs. Although it is a first instance decision, it is a useful and timely reminder that employers need to be mindful not to treat any employee less favourably because they hold particular beliefs. It is the manifestation of a belief that may be open to censure, depending on the circumstances.
The case also demonstrates that investigations should be thorough, objective and well evidenced at each stage to ensure a fair and reliable outcome.