Allison Bailey v Stonewall

From TT2

IO said there was already an investigation ongoing but it is clear that the first part of the investigation had concluded, then SW complaint comes in and its that complaint that GC run with that results in the discrimination by GC.
LB: Yes Ms Sikand was just about to say no

From TT2

On the facts of this case influence and but for are conceded. Reasonable forseeablity is there in my sub. If Im wrong it would need to go back to the ET.

From TT2

But also not reasonably forseeable that GC would take action in that scenario.
LW: Would need a fact find?
BC: Yes. Our case is that its obvious that if you make a complaint its likely to be investigated on that basis.

Its enough that you have action bc of the PC but for and in most cases forseeability
LB: Of detriment
BC: Yes.

LB: Would case be same if SW put out a press release on AB but not addressed to GC saying do something?
BC: No
LN: Why not?
BC: That would take it outside relationship which Act applies
LW: Why?
BC: Statement to public at large. Not in context of relationship and employment context. If my boss makes a statement on twitter that is lawful re twitter but I am offended I cant go to e'er.

This was my point earlier. Stonewall directly contacting GGC was the direct act, publishing to the world at large would not be the same.

From TT2

[Further ref to authority] Clear first thing that will happen is complaint is investigated and decide whether to uphold on grounds in the complaint that are fundamentally prejudiced and discriminatory. Its not ok to express beliefs in a way that is tainted by prejudice and untrue

on behalf of an org within the sphere of the Act.
LB: Would case be same if SW put out a press release on AB but not addressed to GC saying do something?
BC: No

LN: Why not?
BC: That would take it outside relationship which Act applies
LW: Why?
BC: Statement to public at large. Not in context of relationship and employment context. If my boss makes a statement on twitter that is lawful re twitter but I am offended I cant go to e'er.

From TT2

However, not just a complaint. Sent by Head of T Inclusion for influential org. Branding AB beliefs as bigoted and hate speech. Miller and Higgs show that position is a prejudice about those beliefs like any other eg prejudice about race bc its not true.

At that time SW was seen as moderate and respected. So ofc reasonably forseeable.

From TT2

[BC gives bundle ref to show seen as complain]
LB: Ref to complaint appears again and again. Para 376
BC: Focus there is whether threat to their relationship w SW. Plainly forseeable objectively that GC would see and act upon as complaint. That ought to be enough.

From TT2

BC: Yes. The formal content of letter itself. The ET does identify this as a complaint. Q about evidence as to how GC saw the complaint. There was evidence on this but the critical point is it was understood as a complaint by GC.

From TT2

That has to be considered objectively not in relation to KM subjective intentions. ET did not consider that objective q but saw it as one possible interpretation
LN: Dealing with a different issue. Talking about subjective intention. They dont in terms deal with forseeability

From TT2

Im unclear whether the 'just a protest' characterisation could be said to be a basis on which the ET did and properly could have found 112 not made out. If this is in play I say the subjective intentions of A ought not be relevant.

The word cause does not imply intention and intention is not relevant as a general principle in disc. law. Therefore its not relevant whether KM intended the complaint as just a protest. Only potential relevance of the just a protest is if that goes to forseeability.

From TT2

of B in thinking about and taking the decision on the complaint which is the cause of this contravention. Final fallback position is even if intervening acts might sometimes break chain, even if intervening act of B might break the chain, in this case the acts cannot do so.

This is bc it is B doing the basic contravention directly in ref to what A has done.

From TT2

The things IO has pointed to are part of the consideration of and decision about the complaint itself. Thats the character of all the steps. So I submit, on any view in this case there is nothing about the character of those things that is anything other than the intervening act

From TT2

Because GC is an org its consideration involved a process and number of ppl. That doesnt make the comms and process different in principle to what might be done in an individual's head.

From TT2

LW: Where does it come in that it was GC mishandling?
BC: Its not right to say that lead to the disc. They make findings about what GC did, they were critical of some of these things. This was part of the set of the facts from which they inferred the outcome was due to the PC.

From TT2

LW: Was the outcome reasonably forseeable?
BC: Yes. KM was writing to GC saying AB is saying tphobic things on the internet. So forseeable will think about and may uphold his complaint. Indeed some at GC shared KM hostility.

From TT2

BC: s112 expressly contemplates intervening acts of B. It cannot be an intervening act which breaks the chain that B thinks about and then acts upon the causative action relied on in a way that is discriminatory.

Its whether it was objectively reasonable forseeable.
LW: Was it the fact of an investigation or the mishandling?
BC: By causative action I mean SW's complaint. The unlawful action was the partially upholding.

From TT2

LB: Not the first inducing tort ... been around for years
BC: This provision is an amalgam and development of differing provisions in predecessor legislation. In light of FWS and need to look in EA in its own terms I wont take you through history. This is not like inducing

breach of contract tort etc where intention is important etc. It is a unique tort located in EA.

LW: You say not open to ET to conclude email was the occasion of the report.
BC: Yes
LW: That doesnt seem to be way case was put as ET thought it was open to them

From TT2

LW: You have to persuade us s112 narrows these concepts
BC: It does bc s112 itself contemplates B committing a basic contravention. In order for B to do this in relation to dd means B independently acts to C bc of C's PC.

From TT2

state etc.... so does not make sense that but for is good enough
BC: Yes thats why I say I dont need to go so far as to say there may never be an intervening cause. However, there it would not be Bs actions it would be the car.
LN: Yes but no sensible connection btw A and B

BC: There may be a role for intervening acts but still my answer would be a necessary part of the causal chain is an intervening act which has nothing to do with B

LN: Thats quite a novel intro to law of tort. Why should we be restricted to Bs act?
BC: Im not proposing this as a general intro to law of tort. The answer is that this is a specific and entirely unique, novel cause of action

From TT2

BC: Yes, the influence point I think I can leave. The second aspect of direct disc. is less favourable treatment. Quite obviously KM would not have written this complaint if AB did not have this PC
LW: Thats the influence point. What is less favourable?

BC: He wouldnt have written it at all. Thats the easy bit. It does also entail an aspect of detriment
LW: So whats that? By A not by B to C? The causative act needs to cause damage in and of itself?
BC: No. A's act does not need to damage C. They just need to be in relation to C

LW: Yty we talked about cuplability on part of A but there could be an innocent A as we talked about yty
BC: My fault, I meant innocent as shorthand for actions which consist of discrimination

LW: You are nudging towards strict liability the moment theres a but for if PC etc. If something bad happens that is enough
BC: I am nudging towards that but thats not a strict liability bc of mental element direct disc. This is the fundamental point of dd.

If a person within sphere of Act does something bc of a PC which causes detriment, that is enough to give rise to liability for dd
LW: Ok prob me on a limb. Next question then but what next? Cant be that that creates the liability bc there are test around intervening events

BC: In my sub not in this case. It is enough that A acts bc of a PC. It will generally be necessary for it to be reasonably forseeable and but for causation. Those ingredients are sufficient by themselves.

LN: Thats a core issue, is there a role for intervening acts, novice acts
BC: Yes core issue. Court does not need to say will never be something that breaks chain of caustion but nothing about the intervening acts of B can break the chain of causation
LW: Why not?

BC: Inherent in s111 that B has done something which is culpable in the disc. sense for which B is liable. Clearly both A and B could be liable
LN: Suppose A does something with PC in mind and then it causes B to run in front of car that knocks him over changes his mental

Apologies, I've had lunch in hospital and some IV antibiotics.

Fortunately Darlington nurses is in private submissions and Maria Kelly vs Leonardo will be tweeted as a thread.

From TT2

So he had in mind perhaps GC saying they didnt agree with AB but no specific aim
LB: [inaudible] contravention of the act
BC: Depends on terms they said it. If they said AB is tphobic etc that would be a contravention.

LN: How do you fit 369 with 372? When ET says KM had not been looking for any action?
BC: ET is not saying KM expected them to do nothing just that he didnt have a specific action in mind save for a public statement

Moving on to stat interpretation. My submission is not about 'reading in' meanings. Cause has the ordinary meaning in law [refs authorities]. In addition to but for there will need to be additional features informed by fair, just and reasonable.

Additional features to be identified have to have reference to cause of action. So characteristics of discrimination
LW: And the characteristics are the influence point and the damage point. Who has to cause the damage?

As I understand the Stonewall defence, it appears to be 'It doesn't matter that I pushed him, because he was going to jump anyway' with a side order of 'The first tribunal failed to explain their thinking, so we can't say they were wrong'.

And I'm not sure all her exasperated sighing helps her.

From TT2

In relation to KM email, ET conclusions should not be gone behind. Notion ET was preoccupied with KM intentions was bc of C's case which focussed on KM's intent.

So to see ET deal with this in detail in the decision is not evidence of misdirection. Its bc of how she put her case. If there is no misdirection as I submit, then we are left with a bare perversity appeal. I dont need to rehearse what is said about those.

In closing, there is sufficient evidence from what has been placed before you for you to be satisfied that a permissable conclusion has been reached on the evidence. There is no basis to go behind or overturn.

LB: Thank you IO
BC: Im going to focus on what the court has identified as the heart of the dispute.

BC: I will ref back to how C put the case in a nutshell. This might help to understand the structure of para 377. The way I put C's case in closing was two fold.

I said to the ET if they were to find that GC did discriminate by upholding SW complaint then since the complaint was influenced by C's beliefs then that would be sufficient to establish liability. That was on the basis of but for + significant of the characteristics of discrim.

The alternative case was to do with intent. Eg if claim against GC fails then stonewall attempted.

It may be when you come to para 377 that those two things are being reflected.

So we are left with the first two sentences as being the ET's answer to the claim having found GC did discriminate. On any view those two sentences dont answer the self directions at 360 which was consistent with what I had said was the correct approach.

If they were introducing the concept of an intervening act breaking the chain that was off their own back.

The q is whether what they said is an adequate disposal of the claim as a matter of law. In relation to the meaning of final sentence of para 369 we checked our notes and we cant find a passage that reflects that bit of the reasons.

We can only infer that its the ET finding that anything KM said in evidence. As to what it means, it cant be a ref to SW making an association via the complaint bc the whole of the passage is devoted to what KM wanted to achieve via GC. Also this was a private complaint.

Thirdly nothing in the ET findings suggests that SW was associated with AB or that KM thought SW was being associated with her views. He was concered about GC association with AB and t ppl going to GC

[Apologies, visit from physiotherapist]From TT2

LW: On your case, the just fair and reasonable, that is part of what [inaudible]
IO: My sub is it is what they do look at
LN: Does fair just and reasonable inform?
IO: Yes. I was going to say depends on intervening act but clearly s111 absolutely anticipates intervention

LW: Tort law has its fuzzy edges. We are nosing towards the same basic principles that liability falls where it ought to fall. You accept that this does form part of the analysis?
IO: Yes and in that case they were dealing with remedy issues. So 1st stage and 2nd stage is ahead

of us. But analysis of 2 stages is still helpful. 1 but for 2 weighing.
LB: Sense of what is fair and just?
IO: Yes. Range of factors.

LB: SH part in this story is not an intervening act but is part of what GC did to the C amounting to a contravention
IO: The ET characterises it as additional things that happened. Rightly or wrongly the ET considered the internal debate within GC took away from SW suggestion of

fault. It created an opportunity for harm.
LW: The way the investigation was carried out was problematic according to ET. Though SW action was reasonably likely to lead to investigation it was nothing to do with SW that GC did the investigation unfairly
IO: Yes

Nothing to do with SW and as a conscious decision by GC
LW: And intervention of ppl who should have not got involved with the process that offended the ET?
IO: Yes bc two ppl had views about AB's protected views.
LW: Legal responsibility did not lie bc SW was the occasion and no

more and there were intervenors. But we could use other analyses eg fair and reasoable.
IO: Yes that is the nub of it.

LB: Any other areas you need to cover that you havent?
IO: I should deal with the suggestions re the consequences of this appeal. One moment please. I have been passed a note that para 79 is what you had in mind page 105 my lady.

Turing to grounds of appeal. I hope that the way the respondent has identified its positions laid out are clear. Ive already talked about approach to reasons. Grounds 1 and 5 in part are dispensed with as para 360 tells us what the test is.