Allison Bailey v Stonewall

It feels to me that concentrating on KM's email may miss the point that SW were campaigning and pressurising organisations all the time; the email was not isolated from SW's overall actions through the Diversity Champions scheme.

From TT2

In criticising the limit Mr Justice Bourne offered in the EAT re the fair, just and reasonable assessment, he said it was too uncertain. My sub is there has to be a weighing up here. That is something that courts are used to its what they do. In terms of the things that might

make a difference then clearly eg racist views would move the dial but its not an answer in and of itself. If it were BC's but for test is elevated above any other test. In the sphere of tort there are a number of diff ways that causation is considered. Not simply but for.

From TT2

LN: In this case the key sentence is 'the email was the occasion of the report no more' but its not expanded on.
IO: In context, there were 14 separate allegations
LB: So this sentence means its part of the history but not the cause
IO: Yes.

I thought hard like BC as to whether one could induce and not cause my lady and could not come up with any examples.
Moving on to the meaning of causation in a more structured way. What the test is in relation to these subsections.

The reading in of 'bc of a PC' is not an appropriate or effective solution to the problems we have. BC says the purpose of the EA is to counter evil of discrimination and provide remedy. Its not a remedy for any act or ommission its confined. He has amended his analysis on basis

of stability and cohesion. This is illusory bc did bc of a PC, A do something that caused B to contravene one is till not the wiser as to whether there is liability. Thats bc a court has to assess the nature of the thing that is done. That always has to happen.

No because there is no attempt or intention in the offence. Either A (Stonewall) did something that B (GCC) followed up on because A did the thing, or B did the thing without influence from A.

IMO and IANAL, if A had just commented publicly it would be much more difficult to say GCC discriminated against AB because of the tweet. But Stonewall emailed GCC about it and if GCC wouldn't have discriminated against AB but for Stonewall's email, then Stonewall is guilty.

From TT2

Thread 2 AB vs SW

IO: A diff ET may have made a different decision doesnt mean this ET was wrong
LW: Unless they erred in law.

IO: If the parties had put an approach as to how provisions should be interpreted you cant go back on that
LN: I do follow but its really about the language of causation and its not obvious to me we are helped on that

IO: It would be wrong to suggest every conceivable argument was put by each side
LB: It was a 4 week trial. We are conscious we are focussing on a v small part of the case. Thats not itself an answer
IO: No but it does provide some explanation as to the paucity of detail in the

reasons.
LB: Yes
IO: I know that this court will be very familiar with the caution expressed by appellate courts when looking at first instance decisions. Equally, principles apply that ETs sometimes use inapt language but we do not presume they have got it wrong.

If they did - could there be a defense that were just reinforcing or highlighting their public stance?

This is the core of it, here:

LB: For an attempt, state of mind is critical
Its a conscious act. They find KM was not attempting. Whether the email actually induced or caused the contravention doesnt seem to me to require any particular intention on part of KM.

(My bold)

I don't think so.

From TT2

against A to say B is primarily to blame.
IO: Clearly the provisions anticipate liability for A and B. In practice when you consider what has happened you have to decide what things did and did not contribute to the contravention.

There is not a clear bright line but it is for the ET that hears the evidence to make that evaluation and that is what they have done.

////// End of thread

I know - I'm saying that the point IO was making was correct, not that it actually applies in this case.

Did Stonewall actually tweet the same things that appeared in their e-mail to GCC?

From TT2

IO: The contravention is to do the thing. So as long as A intends to do the thing then that is sufficient. The causing pathway is less clear than inducement bc you dont need a partic outcome in mind.

LW: The thing here was the mess up of the investigation?
IO: It was the outcome not the fact that she was investigated
LW: Did SW cause GC to do that thing which was the outcome of the investigation?

IO: Yes
LN: Your case is they were entitled to arrive at that conclusion
IO: Yes.

They were 000s of pages of evidence etc for better or worse this is a distillation.
LW: You say its not a q of whether SW are A or not bc they probably do tick the boxes but the point here is the ET view that the cause lay with GC not SW.

IO: In relation to use of language of fault. That helps to shed light on what ET were looking for and what they found.
LB: I think BC will say its not a question of where primary fault lies. The whole scheme of s111 is that B is doing something wrong. Its not an answer to a claim

I think Stonewall tweeting that AB was outrageously transphobic and what are GCC doing is fundamentally different to Stonewall emailing GCC and saying it.

A tweet is a protest, an email is a threat/instruction.

From TT2

then A is liable?
IO: Yes on causing.
LW: Why?
IO: Bc built into the q is the thing that A did that caused B. Theres a but for, theres a bc of PC and then the causation
LW: What is the damage from a protest w/o intent but is forseeable. Why is A liable?

A is not in a position to do damage to C.
LW: Neither sides submission has bought me clarity yet. If you had an innocent C with but for test but innocent then would not come within s112. Why not? Whats the dividing line?

IO: Yes I think that is what para 361 is saying. In terms A action must cause damage to C.
LB: Im not sure about that. I really havent made up my mind either. This is the heart of the case. Can we start with the detriment we are talking about: Detriment 4, the investigation

outcome. We can forget about instruction this is not that case. A must not induce B. Subsection 8 has ref to attempt. Attempt may not be successful but there is still potential liability. So the ET ought to be making findings

on whether causing or attempting to cause
IO: At para 361 that is what they do
LB: For an attempt, state of mind is critical

Its a conscious act. They find KM was not attempting. Whether the email actually induced or caused the contravention doesnt seem to me to require any particular intention on part of KM.

@fanOfBen @Bannedontherun
Agree, well summarised, fan.

The free speech point by IO is actually a fair one - I think she was saying that the mere expression of GII views or objecting to GC views can't/shouldn't count as unlawfully discriminatory. Because we should be able to express our views and say we think GII is pure woo.
I think the argument that the discriminatory action is foreseeable given the terms in which the "protest" email was expressed and the relationship between SW and GCC might be the clincher here, despite the finding that it was not explicitly inciting or asking for disc treatment. That there is no necessity for an intention on the part of SW/KM seems to be agreed law. Also seems hard to argue that s111 was meant to be narrowly interpreted, because if it was, what would be the point of it?

From TT2

If the 3rd then does the detrimental thing is that alright?
IO: Not necessarily. Depends on nature of what A does.
Appreciate A is a cause of what B then does. Does depend on nature of what A does.
LN: So back to causation. So when you protest but dont intend but it is forseeable

From TT2

LW: There is this finding in 372. KM and SW werent looking for any action
IO: Yes that is a finding.
LN: Suppose someone makes a protest where it is forseeable that someone will do something detrimental to a 3rd person

From TT2

LW: So you say a bit more than protest?
IO: Yes. There are two sides to the coin.
LN: Not sure it helps you. If you are advocating you want a result
IO: Not sure necessarily. Quite a lot of advocacy is just stating position, virtue signalling.

From TT2

and is really discriminatory it rubs out the protest. Separate or same thing?
IO: Separate things. KM says he was protesting and advocating. I dont want to untether these elements. Those were the findings by ET.

From TT2

LN: Are you back at 377? The reason you say no is one cant treat it in law as a detriment bc of intervening actions.
IO: Yes actors at GC too
LW: Are there 2 strands. 1. If you merely protest your own view that is an insufficent act for detriment. 2. If someone else interrupts

From TT2

IO: The email did not add to ongoing situation re AB. Already a consideration of her stance on social media and in public impacting of GC and its DC status. The letter does not add new elements to existing detriment.

From TT2

letter due to PC. After that gets more difficult
LW: Can I pick up then para 361. The notion of SW conduct subjecting AB to detriment. What on your case is the detriment to be attached to the mere protest by SW?
IO: My position is there is no detrimen.
LW: Why?

From TT2

LW: Lets put stake in the ground re protest. 360 talks about mental element. 1. What is your case on whether SW letter influenced by C's PC?
IO: Not a significant influence
LN: But was on the letter
IO: I dont think operative on basic contravention
LB: Stage 1 was writing of

From TT2

IO: The ET say it is not clear what KM was seeking
LN: Thats a different point.
IO: The potential outcomes were that all allegations upheld/some/none. No indication by ET to indicate that they thought it was likely that allegations upheld

From TT2

IO: It is not reasoned out but implicit
LN: Which way round?
IO: They didnt think it was reasonably forseeable that the investigation outcome would be discriminatory
LN: However can you say they didnt think there would be no detriment to AB?