Allison Bailey v Stonewall

Fully agree @TheAutumnCrow

Yes, in this case I really want the Supreme Court not to go narrow but to go wide.

Without the social context, a true reading of Kirin M’s email isn’t possible iykwim.

I’m not commenting on the strength of the case, I’ve always thought the Stonewall part was a tough sell, I just think the nature of the Stonewall scheme was highly relevant to why they had power to induce the act.

Due to the power inherent in the Stonewall Champions’ Scheme. It was seen as critical to be part of it for many organisations. It’s a bigger picture than just this case.

Law firms were at the forefront of Stonewall adoption. It was about being inclusive of gay and lesbian seniors - in the main over represented in law due to ability to work long hours / not as likely to have family commitments (back in early 2010s). Lawyers wanted to look progressive so the trans addition was seamless.

Thats why so many sensible lawyers give such terrible legal advice. They interpret it to fit their world view rather than truth as it exists.

Wow - GCC were quite early adopters of the LGBT scheme from 2018. Most people got on the bandwagon much later. It is interesting to note that they were so keen

@CornishPorsche I was thinking exactly the same! We are fortunate to have such knowledgeable and generous posters.

What a wonderful corner of the internet this is

I expect it will be very difficult indeed to find one single instruction or inducement which is clear cut. However "do the right thing" in the context of a longstanding relationship where GCC was a member of Stonewall's WEI/Champion scheme (?) rather changes things.

The schemes are structured around a series of questions and points are awarded for correct answers. The more points the higher the total score and the higher the organisation ranks on a national scale. From what I can tell loads of organisations wanted to be in the WEI100 completely ignoring the fact that, well, maybe 500 organisations had the same idea... 🤔

That is the sort of relationship where you want to please the person scoring you and avoid upsetting them in case they mark you down.

The scheme is also carefully constructed with a very specific "choice architecture" (cf behavioural economics). So although the schemes are - signed up to voluntarily - choices are somewhat manipulated using behavioural techniques which are difficult to row back on - Cialdini's principles of persuasion.
In this sense, the "nudges" being used by Stonewall and others as part of the choice architecture of the schemes could be considered "inducements". It will need someone cleverer than me to argue it tho!

I watched a film of a young dr who did a presentation on how he "Rainbow Badged " his Trust - he was given time off clinical duties and extra pay to do it. It was fascinating because the way the scheme is constructed, the tick box mentaility, just takes over. He seems like a really lovely and bright chap - but in following this scheme it put blinkers on him and seemed to terminate any critical thought!

Here it is if anyone is interested:

No witnesses, no. Just barristers.

Does this mean witnesses will be called or will it be just legal arguments? I would love to see Kirrin Metcafe’s support menagerie again.

Can I just say, it's so lovely to read the musings and writings of well informed, educated women (I suspect we're mostly women on GWR) on this - I've had a pig of a day and seeing considered and positive arguments, with none of the usual Internet-related name calling and slurs is always a balm for a sore head.

So thanks all.

I'm better informed and calmer because of this thread this evening! Not everything is a shit show irrespective of the SC outcome.

Did Stonewall cause GC Chambers to discriminate, when the result of the complaint was indeed, as found in court, discrimination? Gosh, that's going take some deep investigation.

I’ve posted a screenshot above of the permissions to appeal decision and I’ll link to it in this post.

It is limited to causation so I assume they will stick to that.

https://supremecourt.uk/cases/uksc-2026-0017

Do you think the SC will opine only on causation and not inducement?

This is from the SC website. The appeal is solely about causation so it’s important we use the right terminology as cause and induce are different concepts in the Act.

The appeal is on s111(2) ie causation I cited it in a previous post above.

I don't think it's quite that simple.

Section 111 of the Act is titled "Instructing, causing or inducing contraventions"

The first three paragraphs of that act read:

(1)A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention).

(2)A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention.
(3)A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention.

The introduction to the Court of Appeal decision reads (para.3):

The question raised in this appeal is whether the ET was wrong to dismiss Ms Bailey’s claim against Stonewall for causing or inducing, or attempting to cause or induce, GCC to discriminate against her; and whether the EAT was therefore wrong to dismiss the first appeal.

I think we can use induce, in discussion.

It’s not about inducement it’s about causation. They are not the same concept at all.
The legislation says cause not induce. Cause is factual and doesn’t require an effect on the state of mind of the person engaged in the breach. Induce normally requires some sort impact on their state of mind hence you often get a “but for” test for inducement.

My point is that simply providing bad advice on which a person acts isn't and can't be "inducement" to discriminate.

If you could pay a law firm £200 for legal advice to tell you it's fine and a good idea to put up a "no Blacks, no Irish, no Jews". That would be wrong. But the Black Irish Jewish person has no case against the law firm for their bad advice, and that bad advice doesn't have to be disclosed. You chose to act on it, that's your lookout.

On the other hand you could pay a training provider £200 to tell you it's fine and a good idea to put up a "no Blacks, no Irish, no Jews" as part of a DEI training course. I'm getting the idea that some people here think the Black Irish Jewish person who complains should have a case against the training provider for inducement. If they did, who would risk providing any kind of training, knowing nothing about how that training would be put into effect and what their liability might be?

Bit puzzled about the privilege comment as I can’t see how you could have training delivered or general widely disseminated advice for a firm under privilege without falling foul of Three Rivers. I assume I am misunderstanding the point you are making.

I agree with that.

But that wider steer doesn't need to look in the direction of training provision. Without more - significantly more - nexus, providing training to organizations on a commercial basis should not come close to that threshold.

So imagining this as an attempt to judicialize the contents of training so that training organizations are in terrorem for getting it wrong I think will lead to disappointment.

Sorry to reply to my own post but I thought this might be of interest:

.

Stonewall Equality Ltd (originally The Stonewall Lobby Group Ltd) was incorporated in 1989.

This was largely in response to the passing of Section 28 the previous year (Section 28 Local Government Act 1988)

It is quite instructive to read what their original objects were (you may notice something that is missing that they have latterly heavily leaned in to):

3 The objects for which the Association is established are:
To protect and advance the civil, political, economic, social and cultural rights of lesbians and gay men to be held on an equal basis with other citizens

Just going totally off-topic, Ian McKellen the actor (now Sir Ian McKellen) was one of the original people who signed the form. He was originally going to be one of the directors but dropped out for some reason.

The other original directors were the actor Michael Cashman (now Baron Cashman). He is probably best known for being the first gay character on Eastenders back in the late 1980s (Colin Russell).

The other directors were:

Jennie Wilson. She is an Australian who was also a director of London Lesbian and Gay Centre Ltd.

Linda Deborah Ballard (I don't know anything about her)

I think what a number of us are saying is that if the SC is being asked to determine what meets the definition/threshold of causation for the purposes of s111(2) EA2010 they are unlikely to simply limit themselves to answering about the Medcalf complaint. They are probably going to give a wider steer on what factors might equate to causation and what won’t.

But if the advice under that scheme misstates the law and firms rely on that advice and in so doing discriminate against staff members, then have you caused the discrimination?

That's a very good question, but it's not been the question put in court in Bailey vs. GCC, and I don't think it can now be added to be put to the Supreme Court as part of this appeal.

The answer, by the way, should be a fairly clear 'no'. Bad advice doesn't "cause" or "induce" people to act on it, absent some lever like the Champions scheme or stronger. After all, what is the downside to being ejected from a scheme which is giving unlawful advice? That sounds like they'd be doing you a favour.

Otherwise nobody could ever get training or advice on any subject anywere - nobody would be able to give it, just in case - unless it was from a law firm under privilege.

It wasn't about any advice - there was no advice, and none that could have been in error. It was about Kirrin Medcalf's complaint only. Did Stonewall have a hold over GCC so they could be induced to act unlawfully about the complaint?

We would like to imagine that a court somewhere has specifically held the Stonewall Champion's scheme to be unlawful and that an organization was punished in court for following it. I don't think that has happened anywhere yet.