Allison Bailey v Stonewall verdict due in the next week

a barristers’ chambers specialising in equality law could be expected to weigh such a complaint impartially and decide in a lawful manner

I don't understand how this makes sense given the findings against GCC at the first tribunal.

What is interesting is this woman, Afreena Islam-Wright, who was disciplined for her comments on a petition and was found by a judge to have contributed to the harassment of Denise Fahmy at Arts Council England, is claiming in a tribunal this week that her comment was an EA protected act "to support trans colleagues"

www.mumsnet.com/Talk/womens_rights/5087775-the-arts-are-still-captured-denise-fahmy

"Susan shouldn't be using women's changing rooms because Susan is male and it violates my privacy and dignity"

This is an expression of the belief. It may or may not be a protected act, depending on the circumstances I guess.

Getting someone fired for a protected belief is illegal. Getting them fired because of something they've done is not (you can argue you would have got them fired if they'd done the same thing for a different reason).

But I guess the grey area in these cases, in general, is how much of a manifestation of the belief is simply a legitimate expression of the belief in and of itself.

a barristers’ chambers specialising in equality law could be expected to weigh such a complaint impartially and decide in a lawful manner

Can't argue with that as a theory.

The Appeal Tribubal judge accepts the Employment Tribunal’s original finding

“In this case the alleged inducement or causative act was the making of a complaint against the Claimant and the basic contravention was the determining of the complaint in a discriminatory way. The Employment Tribunal found that the complaint was motivated by the Claimant’s protected characteristic of belief. But it was made as a protest and “without any specific aim in mind except perhaps a public denial of association with her views”. The Employment Tribunal found that it contained no element of threat.”

“responsibility for determining the complaint in a discriminatory way lay only with the Second and Third Respondents”. [her Chambers]

In short, Allison’s chambers discriminated against her in the way they handled the complaint against her, and their poor handling of the complaint is on them, and not in Kirrin Metcalf / Stonewall.

The Appeal Tribunal judge dismisses Ben Cooper’s argument that it was foreseeable that the Chambers would discriminate against Allison.

“78. In his oral submissions Mr Cooper focused on some further factual details. He submitted that it is clear that Kirrin Medcalf made the Stonewall complaint in response to encouragement by others to support action against Ms Bailey. He added that, whatever Kirrin Medcalf’s subjective intentions in drafting the complaint, it was reasonably foreseeable that GCC would interpret it as a threat to terminate the relationship between Stonewall and GCC unless GCC expelled Ms Bailey. It objected to Ms Bailey’s “association with yourselves” and repeatedly labelled her views as transphobia and hate, meaning that continuing the association would damage the relationship. By the words “do what is right”, Kirrin Medcalf clearly intended some action to be taken even if they did not specify it.

80. Those facts, Mr Cooper submitted, made it reasonably foreseeable that GCC would respond to the complaint by inflicting a detriment on Ms Bailey because of her protected beliefs.”

[the ET] it rejected the suggestion that the complaint was either intended or understood as a threat to discontinue Stonewall’s relationship with GCC if GCC did not expel Ms Bailey. At [377] it concluded that the complaint was “no more than protest, with an appeal to a perceived ally in a ‘them and us’ debate”.

129. In my judgment, it was not particularly likely that in responding to the complaint and identifying any breach of the BSB guidelines, GCC would be significantly influenced by the mere fact that Ms Bailey held particular beliefs i.e. her “gender critical belief and her belief about Stonewall’s promotion of gender self-identity encouraging and being complicit in hostility to gender critical feminists” (see ET [328]). On the contrary, a barristers’ chambers specialising in equality law could be expected to weigh such a complaint impartially and decide in a lawful manner whether Ms Bailey’s expression of any views had contravened any guideline.”

That last sentence was particularly stinging, in laying the blame at her employer’s door rather than KM’s.

Legally, yes.

The belief is protected; what you are allowed.to do as a result of the belief is limited.

Getting someone fired for a protected belief is illegal. Getting them fired because of something they've done is not (you can argue you would have got them fired if they'd done the same thing for a different reason).

119. The present type of case, where person A makes a complaint about person C and person B deals with the complaint in a way which infringes the 2010 Act, can be used to furnish illustrative examples of how the test may operate.

120. Take an example where person A makes a complaint to person B, an employer, alleging misconduct by persons C and D, where person C has a protected characteristic and person D does not. Person B upholds the complaint against person C and exonerates person D, treating them differently for no reason other than person C’s protected characteristic. Will person A always be held to have caused person B’s discriminatory conduct?
     **
     121. The answer is clearly no. The complaint may have been made in good faith and have been entirely unconnected with person C’s protected characteristic. If that is so, it would not be fair or reasonable or just to hold person A liable for person B’s discrimination. To borrow the language used by the ET in the present case, the complaint would have been the “occasion” for the discrimination but would not have been its “cause” for the purposes of section 111(2).

122. However, different facts will lead to a different result. If the misconduct was committed by persons C and D, but person A directed the complaint only against person C, and did so because of person C’s protected characteristic, with the result that person B treated person C less favourably than person D, then (without more) it would seem entirely just to hold person A liable.

123. I therefore conclude, first, that section 111(2) does not import any fixed mental element and, second, that liability for causing a contravention does not depend on a test of reasonable foreseeability. Instead, once “but for” causation has been established, the question is whether, having regard to the statutory context and to all the facts, it is fair or reasonable or just to find person A liable for causing person B’s contravention of the 2010 Act. No doubt foreseeability will often be a relevant area of enquiry, but all will depend on the facts.

Can anyone come up with a hypothetical example of what that judgement might look like for instance if someone was a devout Christian for instance?

Can’t wait for SEEN in the legal sector to form while hoping AB and Ben cooper KC are looking at grounds of appeal to Court of Appeal. Sick of this rubbish. Clients are getting shit stonewalled advice because firms are trying to climb the GCC rankings.

Does it actually matter whether is was because of her protected beliefs or because of some action which manifested those beliefs?

It's chicken and egg surely.

No. The detriment is her being fired; and the manifestion of belief would be Alison's actions, not Stonewall's.

And also as pp said that it can't be justified that it was because of her protected belief.

He doesn't seem to take much of an interest in whether they were actually trying to get her fired, just saying the conclusion can't be justified.

"well short of showing that if Stonewall either induced or attempted to induce GCC to inflict a detriment on her, the inducement was to inflict the detriment on grounds of her protected belief rather than because of an allegedly objectional manifestation of her belief”."

And I wondered if it meant SW was criticising (inflicting the detriment) on AB’s protected belief of sex being immutable but were not trying to get her fired (as an objectionable manifestation of her belief)?

But it’s a word salad even for legal jargon and at the end of the day you do wonder if the judge/s were pro GI? It seems to be the one belief that influences professionals to lose perspective.

The onus is on AB -as appelant - to satisfy the appeal tribunal that any inducement Stonewall might have made was made because of the protected beliefs AB held and not because of the way AB expressed those beliefs.

The judge has looked at the evidence and legal arguments presented by both sides and has decided that AB has not proven what she needed to prove to win the appeal.

You've explained that better than I did...

Lawyers are notoriously fond of long sentences and nervous of punctuation, which can make them unclear. What the judge is saying is that Alison had to prove:

1 Stonewall induced or attempted to induce GCC to inflict a detriment

And

2 That they did so because of her belief, not because of her actions.

Proving point 1 on its own is not enough. And 1 carried out because of her actions is not enough.

The judge is simply saying that AB did not satisfy the court that any inducement etc made by Stonewall was made because of her philosophical gender critical beliefs rather than because of the way she expressed those beliefs. Therefore she lost the appeal.

Does thet make it clearer...?

Thanks - for about 2 seconds that makes sense - then I think you mean is she has said pretty please is it alright if I am gender critical she would allowed them, but she doesn't have the right to gender critical is an assertive way.

I read it the same way but I wondered if there was a legal test or threshold for whether the particular manifestation of your belief is objectionable enough. Because if there isn't, any manifestation at all could be punished and you might as well not have the right to express your belief at all.

I haven't read the judgment but the words you've put in bold make perfect sense to me - but you can't read them in isolation - you have to read them as part of the whole phrase starting "... well short of showing...".

The judge is simply saying that AB did not satisfy the court that any inducement etc made by Stonewall was made because of her philosophical gender critical beliefs rather than because of the way she expressed those beliefs. Therefore she lost the appeal.

Does thet make it clearer...?

[Edit: In order to win the appeal AB had to prove that Stonewall made their inducement (if they made any at all) becauce of the beliefs she held and not because of the way she expressed them. The judge is saying that AB did not prove what she needed to prove - so lost the appeal. I'm not making any comment on the merits of the decision - which I think AB ought to have won...]

It also seems strange that in the context of a outside group of experts being brought in to provide training at a workplace, and it then turns out it was wrong, that the wrong training isn't found to be the source of the problem.

if is was a self and health issue, and in following guidelines from an outside experts someone got hurt, wouldn't the trainer / expert be liable.

Or is it that AB's Chambers, in losing their case, should have sued Stonewall for training them to behave in a discriminatory way.

As said up thread, employers should be given a warning, only undertakd Stonewall training at your own risk of being sued if you implement them?

Wrong thread, I assume...
Back to the discussion, I'll look forward to the analysis by Allison et al.

"well short of showing that if Stonewall either induced or attempted to induce GCC to inflict a detriment on her, the inducement was to inflict the detriment on grounds of her protected belief rather than because of an allegedly objectional manifestation of her belief”."

Yes, I'm not clear on this either. I thought AB was arguing simply that SW did induce or attempt to induce a detriment... whatever that was based on?
And going by the evidence, they clearly did?

"Surely only Stonewall could say on what grounds they attempted to get Allison fired."

A statement from Stonewall from the original case which she lost: "the Employment Tribunal has ruled in a decision published today that Stonewall has NOT been found to have instructed, caused or induced Garden Court Chambers to discriminate against Allison Bailey."

AB also today lost the appeal against Stonewall.

https://www.stonewall.org.uk/about-us/news/stonewall-statement-outcome-allison-bailey-case

One thing this judgement highlights is how dangerous it is for organisations to sign up to Stonewall and do their bidding. GCC were found to have discriminated against Allison yet Stonewall who initiated complaints and pressurised them to sanction her, get off scot free.
On that basis, schools who have installed mixed sex toilets as advised to by Stonewall must take sole responsibility for the sexual assaults on girls by boys (current case going on in an Essex school). Organisations failing to exercise due diligence about Stonewall's safeguarding breaching advice will bear the consequences alone.

They're evidently a hazardous organisation to take advice from.