Allison Bailey v Stonewall

As far as i understand it Ben is also arguing that the normal principles of Tort do not apply to the EQA s111 and that it should be deemed a new or stretched concept, or it will have no effect.

The discussion about causation involved a really difficult area of the law and I think went over IO's head a bit.She also got lost when the Bean commented that with attempts you don't need the harm to result, but intention is necessary. This kind of area will always involve lots of abstract 'what iffery' which she didn't seem to have thought about. But these judges have to, and they need answers. If she is right that the behaviour of GC broke the chain of causation, so that SW were not party to the discrimination against AB by them, so they aren't responsible for that outcome, did SW nevertheless attempt to induce them to discriminate unlawfull?

This is exactly what I was thinking yesterday.

The context of how SW consistently behaved towards anyone who stepped out of line.
When Graham Linehan wrote to them to ask them to help ‘take the heat out’ of things on SM.
They said no.
They didn’t ignore him, they actually refused.
Think of that?!

Behaving like arseholes is what they do best, but of course none of that is relevant to the CoA.
When i was watching it on YT, I kept saying ‘oh come on!’
That would be my own legal argument.

To me that is a key point - KM wanted GCC to do something to indicate Allison’s tweets etc. were wrong/transphobic which meant KM was asking GCC to refute /remove Allison’s right to express her protected belief I.e. discriminate against Allison. I consider that to be evidence that A induced B to discriminate against C.

However, ANAL nor am I a court of appeal judge and the arguments are incredibly nuanced and based on interpretation of not just statute but also case law.

Yes. Using a point of law to ignore a finding of fact the lower court(s) made is extremely common, if the appeal court doesnt like the outcome below but cant justify saying it's one of those v rare cases where they can overturn a FoF below.

IANAL and i am not particularly knowledgeable about procedural rules, but i think that the Court of Appeal do not interfere with a finding of fact unless it breaches the law, so i wonder if that is part of BC submissions, that it does not matter what the intended or outcome was just the act of complaining in of itself that caused the resulting discrimination. Als that the Tribunal were interpreting S111 to narrowly.

Maybe that's because the ET panel hadn't been immersed in this issue as much as other people.

There wasn't a woman here who didn't read that as 'nice little practice you've got here, shame if anything were to happen to it'.

The TRA culture of violent harassment, bullying, doxxing, firing and arrest made the words in that email as menacing as they could possibly be. Especially as Stonewall were seen as the figurehead.

It was totally shocking to see their representative as some twit needing support animals and their mummy with them when they gave evidence.

The ET didn't see the context, and I bet the appeal panel don't either.

If the Court of Appeal judges don’t find it (KM’s evidence about her email) credible, can they effectively overturn the ET’s conclusion? Or would that require them to overturn a ‘finding of fact’ which presents a barrier?

Bearing in mind Ben Cooper’s point that KM’s intention is irrelevant under the actual wording of the EA2010 (ie BC has raised a point of law), could the judges use this to get over that barrier?

IO was like that with her oral submissions to EJ Goodman. It’s hard to follow her when it seems like she’s doing it on the fly.

Yes he did i think the evidence he gave was that he wanted a public denouncement of this not a sacking and the tribunal found it to be credible

Wasn't there something about KM telling GC "I trust you'll do the right thing"?

What did he intend by "the right thing" - did the ET examine that?

I’m still watching yesterday’s events. I’m struggling with the respondent’s case….its all very dull in comparison to BCs delivery and very bitty

Well done Myrtle! TT were also doing a stirling job for something that clearly needed to be articulated precisely. I've only skimmed it but I find these nitty-gritty points of law just as fascinating as the absurd "i am biological" stuff - more, in fact, because both sides are required to be coherent!

Going back to this (sorry I’m still catching up), what a really good post. It puts the legal point so well. Thank you, @WandaSiri.

At that time SW was seen as moderate and respected.

At that time. 🔥😂Never cross this man.

Thanks Myrtle, copypasting beyond the call of duty and I hope your recovery is speedy now.

KM the private citizen could write misogynistic stuff to GCC and they'd ignore it (probably), but as a Stonewall employee asking GCC to do something they're going to give weight to what KM says and probably act on it. Why is this so difficult to understand?

I find this defence utterly bizarre. In my employment contract, and I'm sure most other people's, there is a difference between what I do in my own time and what I say as part of my job. KM can say whatever KM likes in KM's own time, but KM had the weight of a big, influential, well funded organisation behind KM and support entourage and sought to cause a detriment to AB as part of KM's role in Stonewall. That's very different than whatever KM's views are down the pub.

The big problem here of course is that Stonewall has been behaving as if the law is as they want it to be - i.e. misogynistic and denying women their sex based rights. Sadly not as it is.

The problem is that KM's views were the same as Stonewall's views and as an institution the EA2010 applies to Stonewall and it's employees and their actions as part of their jobs, it doesn't apply to KM's individual beliefs down the pub.

Thank you. We are all so sorry you've been so poorly, and hope you can get some rest now. It's obviously a difficult week to switch off in !

Stirling work, Myrtle. Thank you.

IO had a definite sow's ear job there and I don't think got anywhere near making a silk purse. But she was several rungs above some of the barristers we see on the GI side when it comes to professionalism.

I couldn't be a judge. I'd have found it impossible to contain myself when BC pointed out that the argument that the ET hadn't treated KM's email as a complaint didn't really hold up in the face of the ET decision containing the section heading 'Stonewall complaint'.

Well done Myrtle! And thank you so much.

Morning sessions here

https://threadreaderapp.com/thread/1980912611941298257.html

https://threadreaderapp.com/thread/1980945162495787237.html

And that is the end of the appeal.

Presumably the judges will spend some time discussing and deciding, then will send out a draft to.the lawyers, then publish the final judgment.

No timeline given, but we can speculate that it will be before Christmas.

From TT2

LB: We will ofc reserve judgment. Very grateful to both sides. We have been saying to each other that the oral advocacy on each side has been very high quality. When we have reached a decision we will send out embargoed draft in usual way for typos etc

End of appeal hearing.

From TT2

IO: Yes. And finally BC spoke about actions of B as an org and said not individual's actions. Note there are 119 barristers and specific allegations against some so a word of caution to think of that as a monolith.

From TT2

further action
BC: Yes. And C was only asked to respond to the SW complaint. Those are my subs
IO: Two tiny points of detail. In relation to detriment GC not associating with AB, ET sees that detriment has already taken place in relation to the response tweet
LB: 24th Feb tweet