Allison Bailey v Stonewall - Employment Tribunal hearing Thread 9

[ickky]

The Tribunal started on 25th April at 10am. If you would like to view online you need to send a request for access as early as possible.

Send an email to

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The subject heading of the email request should read

“MEDIA OR PUBLIC ACCESS REQUEST – Case number 2202172/2020 - Ms A Bailey – 25th April 2022.

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Abbreviations:
AB: Allison Bailey, claimant
BC: Ben Cooper QC, barrister for AB
SW = Stonewall Equality Limited (respondent 1)
IO = Ijeoma Omambala QC, senior counsel - barrister for SW
RW = Robin White junior counsel to SW - assisting IO
GC = Garden Court Chambers Limited (respondent 2) (GCC would be a better abbreviation)
AH = Andrew Hochhauser QC, senior counsel - barrister for GC
JR = Jane Russell junior counsel to GC - assisting AH
RM= Rajiv Menon QC & SH = Stephanie Harrison QC (jointly respondent 3 along with all members of GC except AB)
EJ = Employment Judge Goodman hearing the case
Panel = any one of the three panel members (EJ and two lay members)

Thread 1 www.mumsnet.com/talk/womens_rights/4529887-Allison-Bailey-v-Stonewall-Employment-Tribunal-hearing?

Thread 2 www.mumsnet.com/talk/womens_rights/4542466-allison-bailey-v-stonewall-employment-tribunal-hearing-thread-2

Thread 3 www.mumsnet.com/talk/womens_rights/4545725-allison-bailey-v-stonewall-employment-tribunal-hearing-thread-3

Thread 4 www.mumsnet.com/talk/womens_rights/4546945-allison-bailey-v-stonewall-employment-tribunal-hearing-thread-4

Thread 5 www.mumsnet.com/talk/womens_rights/4548160-allison-bailey-v-stonewall-employment-tribunal-hearing-thread-5

Thread 6 www.mumsnet.com/talk/womens_rights/4550451-allison-bailey-v-stonewall-employment-tribunal-hearing-thread-6

Thread 7 www.mumsnet.com/talk/womens_rights/4551757-allison-bailey-v-stonewall-employment-tribunal-hearing-thread-7

Thread 8 www.mumsnet.com/talk/womens_rights/4552521-allison-bailey-v-stonewall-employment-tribunal-hearing-thread-8

Allison Bailey - claimant

Witnesses for the claimant:

Nic Williams - Fair Play for Women
A Woman's Place
FiLiA
Kate Harris - LGB Alliance

Witnesses for the respondents:

Stephen Lue - barrister for GCC
Kirrin Medcalfe - head of trans inclusion Stonewall
Sanjay Sood Smith - Stonewall
Shaan Knan - LGBT consortium - on STAG
Leslie Thomas - barrister at GCC
Rajiv Menon - joint head of chambers
Maya Sikand - barrister at GCC and in charge of writing report on AB/complaints
Mia Hakl-Law - HR senior for GCC
Judy Khan - barrister at GCC

Current Witness - Charlie Tennant - Clerk at GCC

To come

Luke Harvey - Clerk at GCC
Louise Hooper - Clerk at GCC
Stephanie Harrison - joint head of chambers
Michelle Brewer - barrister at GCC at time, now left and a judge

I've had Support Minty Aeros today.

A 4 pack.

They're only little . . .

I think that's where the 'unlucky' suggestion comes in to play. She really did have a run of very bad luck the way cases she was due to earn from just evaporated through no fault of anyone.

Had that not happened her income would have been far higher, and possibly even closer in line with the general loss others in chambers experienced.

But I get the impression the clerks felt she couldn't afford to be picky in the circumstances and were pissed off that she still wouldn't take stuff she thought was beneath her when others in chambers were picking it up to keep their earnings up. As a result they stopped working hard for her and knew they weren't going to get pulled up on it because senior members of chambers were pissed off with her for other reasons.

It might still even be mired in sexism / teaching the uppity woman a lesson but I don't think it was a conspiracy by chambers and the clerks, more an opportunity taken by the clerks.

Yes! I've seen "talking points" a lot lately. It seems to mean "an argument made by people I don't like". Inconvenient arguments that they would like people not to listen to.

I've been thinking more about the way she was treated. I think Allison has more than adequately demonstrated that she was discriminated against as a result of her beliefs.

The telephone eavesdropping is a very illuminating example of how prejudice against her translated into appalling work practices.

When I first became a university academic, for a short while I had to share with another lecturer. We knew instinctively not to cross the line into listening in to the other's calls and conversations, even if we heard them happening ifkwim. They were private, out of bounds, and confidential. You tuned them out.

Eavesdropping and recording is, to me, atrocious behaviour.

I do agree for the most part @SpindleInTheWind but I can also see the other side. If someone overhears something that is, to them, abhorrent, then they may feel duty bound to take action, especially if they believe that it breaches a code or a law.

@exwhyzed

"I think that's where the 'unlucky' suggestion comes in to play. She really did have a run of very bad luck the way cases she was due to earn from just evaporated through no fault of anyone. Had that not happened her income would have been far higher, and possibly even closer in line with the general loss others in chambers experienced."

Does "bad luck" really explain why her income fell from over £100K in 2018 to £39K in 2019?

Does "bad luck" explain why Allison's income was the lowest of all equivalent barristers, some of whom managed to earn 6 figure incomes in 2019?

‘If someone overhears something that is, to them, abhorrent, then they may feel duty bound to take action, especially if they believe that it breaches a code or a law.’

I agree to a point, but when that person’s understanding of the code or law is shit, their managers or colleagues need to correct it. I appreciate that Renton feels that it is awful or whatever to believe in biology, but it’s perfectly lawful.

'I think TRAs call GC ideas "dogwhistles" because the idea of anyone giving a shit about women genuinely confuses them.'

Yes, much like the Savile enquiry - 'just the women'

The telephone eavesdropping is a very illuminating example of how prejudice against her translated into appalling work practices

Absolutely. I don't think there is any doubt that Allison was subject to a huge amount of hostility from a number of people in chambers for holding the views she did. For that she has had detriments.

My reading of the situation is though is the clerks didn't find her to be a flexible barrister to find work for (for all the reasons she heraelf explains) and as she became more (rightly) 'paranoid' that chambers were treating her badly because of her GC beliefs and more cross about the work she was being offered the clerks possibly almost gave up offering her stuff as they got shouted at by her if it wasn't high enough status work.

TBH if someone sent me an email saying 'why are you sending me this it's beneath me' [paraphrasing] I wouldn't be in a hurry to send them anything again unless I was sure it was something I wouldn't be told off for.

At the end of the day though its about sunlight. And we are getting plenty of that.

Yes, quite. I guess that all I'm saying is that i can see why he felt that he needed to raise it. It's all contextual, but I think if I had heard something I deemed to be highly discriminatory then I might feel that I had no choice but to raise it. The fact that her view was lawful/legitimate is beside the point because he didn't think it was, so he acted with that as his foundation.

I don't know that he actually did though, because I had to take a phonecall so muted the testimony. I just gathered that he reported a phone conversation to the heads.

I do know what you're driving at, but I think the legal bar for that is set pretty high; and GCC's bar may have been set far too low.

For example, in higher education I was only allowed to breach confidentiality if I had a reasonable belief that there was a risk to the safety of a person or persons. (And I mean risk in the sense of actual legal safeguarding, not made-up hurty-guarding.)

If I was, on the other hand, concerned about a colleague's behaviour, we had set procedures for handling that. These procedures did not include the ways in which Allison's colleagues behaved toward her. GCC personnel seem to have invented 'procedures' as they went along, such as the 'investigation' tweet. So unprofessional.

Sorry, I'm tired. I might not be expressing myself well.

"My reading of the situation is though is the clerks didn't find her to be a flexible barrister to find work for (for all the reasons she heraelf explains) and as she became more (rightly) 'paranoid' that chambers were treating her badly because of her GC beliefs and more cross about the work she was being offered the clerks possibly almost gave up offering her stuff as they got shouted at by her if it wasn't high enough status work.

TBH if someone sent me an email saying 'why are you sending me this it's beneath me' [paraphrasing] I wouldn't be in a hurry to send them anything again unless I was sure it was something I wouldn't be told off for."

@exwhyzed I can see that, too. AB was thinking that it was deliberate but the clerks seem to be very sure that they were just offering what was available. I guess you have to be a barrister to know how bad it is to be offered work below your call level, or whatever you call it. I can see the notion of doing a small job to get your foot in the door with a client, though. I can also see that doing clients a favour will make them think of you if a big case comes up.

Does "bad luck" really explain why her income fell from over £100K in 2018 to £39K in 2019?

Does "bad luck" explain why Allison's income was the lowest of all equivalent barristers, some of whom managed to earn 6 figure incomes in 2019?

I think there is enough evidence that 'bad luck' plays a significant role in her income drop to create reasonable doubt that it was caused by that instead of by conspiracy.

Allison had really bad luck that financial year after having really good luck the year before = income drop from one year to the other

Allison like everyone else had an income drop because of the pandemic = income drop from one year to the other

Allison had a period of sick leave and a period of extended annual leave = possible reduction in availability from one year to the next

Allison would only work particular cases = no change that was always the case

It's going to be really difficult to evidence that the clerking issues were deliberate rather than just circumstances.

To me, to understand how the legal case is going, we have to put to one side the fact that Allison Bailey was badly treated by GCC, and think whether the "conspiracy" between the barristers of GCC and the clerks did happen, whether this caused the clerks to reduce her work, and whether this was the cause of the fall in her income, all on the balance of probabilities. In the absence of a handy set of emails, this isn't easy. It's why you heard BC use the word "inference" a lot.

But that's detriment (i). There are the other 4 detriments in play.

@SpindleInTheWind you're expressing yourself just fine. I think you're right. They need to compare the action taken with the procedures and decide what the reason or motivation for straying from them was, and what impact it had on AB, and any detriment.

"think there is enough evidence that 'bad luck' plays a significant role in her income drop to create reasonable doubt that it was caused by that instead of by conspiracy."

@WeBuiltCisCityOnSexistRoles

You're making perfect sense to me.

I'm a children's psychotherapist and our contracting around safeguarding is very clear and communicated in ways that young clients can understand.

Breaking confidentiality doesn't include the risk of hurty feelings, we have very strict criteria for what warrants a safeguarding disclosure and risk of someone being offended is not a thing.

@exwhyzed

"My reading of the situation is though is the clerks didn't find her to be a flexible barrister to find work for"

How does that explain her 6 figure income in 2018?

From 2015 Allison's income had been increasing year on year which reflected her strategic plan for her career, culminating in a 6 figure income in 2018.

Other equivalent barristers were able to earn 6 figure incomes in 2019. What explains the cliff edge plummet in Allison's income in 2019 from over £100K n 2018 to £39K?

My reading of the case so far going by the GCC witnesses is that some were absolutely careless in their duties towards Allison (JK) and some actively thought that they were fighting the good fight when they persecuted her, and indeed still do (DR and the ranting lady before him).

Try again:
"think there is enough evidence that 'bad luck' plays a significant role in her income drop to create reasonable doubt that it was caused by that instead of by conspiracy."

@exwhyzed I think the panel only has to decide 'on the balance of probability' in this case because it's civil.

@Lougle

"Beyond reasonable doubt" only applies to criminal legal cases.

Civil law cases such as this one are judged on probability, as far as I am aware.

"How probable is it as far as a reasonable person is concerned?"

Yes as I was typing it I knew it was the wrong phrase.

GCC have shown Allison had an exceptional and unusually good year the year before.

GCC have shown she had really really bad luck the year after without even taking into account it was a bad year for everyone.

Any detriment Allison had because of any GCC conspiracy is probably secondary to the income loss from bad luck. Doesn't mean it didn't happen just that GCC do seem to be able to back up that a lot of it was sheer bad luck.

@MaudeYoung yes, that's how I understand it. In civil court 51% is enough, isn't it? As long as it was more probable than not, it's over the line.

Ewww!!! Sometimes, Necessary, it is better to not have it confirmed that what you propose could well be the case. [I’d add an emoji but I am at a loss as to which would convey my feelings of that potential confirmation ]

The point about the balance of probabilities is that the tribunal will need to decide whether it was more likely that the barristers had told the clerks to limit the work going to Allison or whether it was more likely that there was no such instruction. Look at the testimony today from the clerks and think about where the evidence of such a conspiracy could be seen.