Allison Bailey v Stonewall

From TT2

C not perceived safety concern. The next specific finding the ET made was that before submitting complaint KM discussed complaint with colleagues at SW.
The third finding was that when KM submitted complaint that he knew GCC was a member of diversity champ scheme.

he 4th was that KM made implied infliction of reputational harm

From TT2

IO the claim against SW was founded on matters that the ET would be bound to accept, Turn to those. The first was that the action of KM submitting complaint was in the purpose of supporting formal action against

From TT2

to advice and guidance to HR and other matters and the point made by SW at that time was that merely by accepting the chambers as a scheme champion and offering services they were not inducing unlawful treatment.

IO the scope of allegations C made about SW in that context one could look less harshly at the passages at the decisions of the ET.
It is helpful to take you to list of issues that ult the parties invited the tribunal to determine. End of ET decision.

I think it is fair comment to describe as unweildly. You can see allegations made against SW. And again I will leave you to read those allegations to yourselves, but one can see that the scope was wider than the matter that leads us here today
J - this was a pretty massive trial.

Bloody hell Myrtle you are unstoppable 💪🏻

I hope the op has done its job and you are on the mend now 💐

From TT2

J - Question about ? particulars.
IO - they are relatively lengthy. We have a list of issues, that is sufficient
IO p259 a summary of the nature of the activities that are covered within the DC programme. You will see and i will suggest that the nature of activities relate

From TT2

R sets out basis of complaint to GCC. YOu will see in setting out position para 10, SW state that KM was not a member of the team responsible for Diversity Champ

scheme or KM not aware GCC a member and that after submitting his complaint there was no more contact between KM and GCC. No response to complaint by Stonewall.
Assertion KM not involved in investigation. They were not privy to claimant's response to that.

From TT2

IO - p256. YOu wil see that para 3 there is info about nature of diversity champ programme as it was at that time.
Para 4 of this doc, you will see description of the nature of the relationship between Stonewall and GCC and you o

will see the acceptance that Stonewall was a service provider by way of Diversity Programme. The respondent accepted that it was a service provider to GCC and therefore had a relevant relationship

From TT2

I IO - Sorry p221. para 14. We see the C identifying that a complaint was made from first respondent.
Next page - C assertion that having engaged fully with investigation Stonewall fully upheld.

Claimant - GCC colluded with Stonewall and went on to say that the complaint against her was procured by a member of GCC. the allegation an explicit inducement to GCC by Stonewall

Para 18 the C case was that the Diversity Programme that framed relationship between GCC and SW this dictated the direction of GCC
J - does it say that? It doesn't explicitly refer to diversity.
IO - I accept that correction

From TT2

IO the respondent's position - the C lost the case on facts. The ET did not accept analysis of claimant.
The facts lead the ET to make decision it did

IO - Tab 10 core bundle. Identify the way in which the complaint is put against second respondent
The facts relied on can be seen page 226

From TT2
[As a reminder IO is Ijeoma Omambala KC - Barrister for Respondents]

IO - what sections 111 impose strict liability in relation to person A
My submissions will firstly consider basis of case. In fairness to ET and the context one ought to look at those reasons.
Tribunal reasons I turn to Stat Provisions.

From TT2

apologies have lost sound.

From TT2

if you are against me on test at the very least, if it was diff test, it wasn't applied by tribunal quotes Jaffrey which makes that point.

R - what we have heard is an attempt to challenge the findings of fact at the Emp Trib.

From TT2

The EAT was wrong to say you can draw distinction between allegedly and actually objectionable.
Those 3 aspects of EAT decision are further errors, ought not to have waded in

Even if EAT were right, and the test was fair or just or reasonalbe in way they suggest that was not on any view the test applied by tribunal. And requires application of judgement by first instance tribunal. Even

I am loving Ben Cooper’s use of Banarama against Stonewall!

From TT2

BC it is by the by, because KM gone the extra mile, making allegations of transphobia.

1. The EAT took into account para 70.3. The suggestion that KM was not acting because of belief itself but a manifestation of that [quotes example in order to make that distinction] Court of Appeal Higgs para 74

From TT2

...What the EA prohibits is acting on those beliefs subjecting others to detriment. This applies both ways.
GC or KM
J question - the EAT trying to pick up on what the ET said about protest. But if ET is merely a protest.
Don't dispute this?

BC is is by the by because he's not expressing to the world at large
J - he was entitled to write? There must be a point where you can say 'I disagree'
BC - yes, that is. Employees allowed to express views in workplace

From TT2

BC - on KM own evidence what he intended was to induce GCC to do something that would amount to unlawful direct discrim. He is liable for any detriment to the claimant that follows from that.

There are all these routes to establishing liability
Error of Emp Appeal Tribunal - there are 4 of them.
1 Ground 3 the Emp appeal. para 67. reasonable liability and the test for it.

Abundant evidence before Tribunal that all sorts of respectable orgs have been inclined to discrim against GC people.

BC - GCC had expressed views similar to KM

1. EAT outside remit: Para 67.2 Stonewall complaint was itself a legit manifestation of beliefs under EA - this is neither here or there. Everybody is entitled to hold beliefs and that would apply to KM.

From TT2

any view in this case, it would be fair and just to hold Stonewall liable becasue of all the factual features of KM's actions. Which I have outlined and recapped in skeleton argument.
Ground 5 -failure of tribunal based it's dismissal of inducement by primarily on its findings

to the effect that KM was not intending to threaten damage relationshipo and GCC did not perceive. The tribunal didn't apply the correct test in relationship to inducement and because it didn't apply could only find as it did.

From TT2

Doing the best we can the chain of causation was broken because KM didn't intend the specific actions of Garden Court.
[discusses issues of protest]
Ground 2 is to the effect that even if I am wrong about what the test is and the underlying causes of action on

I'm catching up and just reach BC's "there is no hierarchy of beliefs here" part. Excellent!

From TT2

none
BC Ground 1 ref to skeleton argument. p37. the EAT doesn't matter for these purposes.
Ground 1 follows if you agree with me, in relation to correct test. The tribunal didn't apply that test.

From TT2

BC the broad interpretation of inducement must be implied
So the relevant ingredient of liability for inducement are P62 [discusses discrim process and outcome between A and B]
[some discussion about J question about inducement]

About relationship between inducement and causation.
BC - these are obviously ways of overlapping. They are intended to be broad and not narrow
J - asked about meaning of meaning of word 'induce' in this context.

BC - I think I can draw the threads together by addressing grounds - ET and EAT
Any questions so far?

From TT2

BC - para 59 p18 of bundle. It is common ground that an inducement need not involve carrot or stick but may only involve persuasion or encouragement.

BC p 33 and 34 of auth bundle
Also whether or not Person A intended the contravention that occured...
Para 60 it is perfectly natural that person A induced person b where person b makes a complaint

From TT2

BC I have made my point that both of alt test beg the question, if you take EAT test you end up asking, what are the criteria of justness? And that is back through legislation

BC - what is direct and indirect in this situation. This leads back to purpose and the primary cause of action. And those criteria and give stable basis for know where you stand.

BC if a public service provider does something less favourable to B or C, they will be liable to consequences if it leads to discrim against C.
BC - deal with inducement next

From TT2

In this case Mr Metcalf made a complaint that was the very kind of thing to lead the person being complained to doing the things in the complaint. In this context of discrim leg the relevant criteria

• does it break chain of causation - the criteria are the illigitimate purpose and prescribed motivation. Was this objectively liable to be treated in this way it does not require the intention of the person doing the thing

J - asks for clarification
BC was this the sort of thing to be treated in this sort of way by the recipient.