Allison Bailey v Stonewall verdict due in the next week

[biddyboo]

🤞🤞🤞

The Appeal Tribubal judge accepts the Employment Tribunal’s original finding

“In this case the alleged inducement or causative act was the making of a complaint against the Claimant and the basic contravention was the determining of the complaint in a discriminatory way. The Employment Tribunal found that the complaint was motivated by the Claimant’s protected characteristic of belief. But it was made as a protest and “without any specific aim in mind except perhaps a public denial of association with her views”. The Employment Tribunal found that it contained no element of threat.”

“responsibility for determining the complaint in a discriminatory way lay only with the Second and Third Respondents”. [her Chambers]

In short, Allison’s chambers discriminated against her in the way they handled the complaint against her, and their poor handling of the complaint is on them, and not in Kirrin Metcalf / Stonewall.

The Appeal Tribunal judge dismisses Ben Cooper’s argument that it was foreseeable that the Chambers would discriminate against Allison.

“78. In his oral submissions Mr Cooper focused on some further factual details. He submitted that it is clear that Kirrin Medcalf made the Stonewall complaint in response to encouragement by others to support action against Ms Bailey. He added that, whatever Kirrin Medcalf’s subjective intentions in drafting the complaint, it was reasonably foreseeable that GCC would interpret it as a threat to terminate the relationship between Stonewall and GCC unless GCC expelled Ms Bailey. It objected to Ms Bailey’s “association with yourselves” and repeatedly labelled her views as transphobia and hate, meaning that continuing the association would damage the relationship. By the words “do what is right”, Kirrin Medcalf clearly intended some action to be taken even if they did not specify it.

80. Those facts, Mr Cooper submitted, made it reasonably foreseeable that GCC would respond to the complaint by inflicting a detriment on Ms Bailey because of her protected beliefs.”

[the ET] it rejected the suggestion that the complaint was either intended or understood as a threat to discontinue Stonewall’s relationship with GCC if GCC did not expel Ms Bailey. At [377] it concluded that the complaint was “no more than protest, with an appeal to a perceived ally in a ‘them and us’ debate”.

129. In my judgment, it was not particularly likely that in responding to the complaint and identifying any breach of the BSB guidelines, GCC would be significantly influenced by the mere fact that Ms Bailey held particular beliefs i.e. her “gender critical belief and her belief about Stonewall’s promotion of gender self-identity encouraging and being complicit in hostility to gender critical feminists” (see ET [328]). On the contrary, a barristers’ chambers specialising in equality law could be expected to weigh such a complaint impartially and decide in a lawful manner whether Ms Bailey’s expression of any views had contravened any guideline.”

That last sentence was particularly stinging, in laying the blame at her employer’s door rather than KM’s.

a barristers’ chambers specialising in equality law could be expected to weigh such a complaint impartially and decide in a lawful manner

Can't argue with that as a theory.

Getting someone fired for a protected belief is illegal. Getting them fired because of something they've done is not (you can argue you would have got them fired if they'd done the same thing for a different reason).

But I guess the grey area in these cases, in general, is how much of a manifestation of the belief is simply a legitimate expression of the belief in and of itself.

"Susan shouldn't be using women's changing rooms because Susan is male and it violates my privacy and dignity"

This is an expression of the belief. It may or may not be a protected act, depending on the circumstances I guess.

What is interesting is this woman, Afreena Islam-Wright, who was disciplined for her comments on a petition and was found by a judge to have contributed to the harassment of Denise Fahmy at Arts Council England, is claiming in a tribunal this week that her comment was an EA protected act "to support trans colleagues"

www.mumsnet.com/Talk/womens_rights/5087775-the-arts-are-still-captured-denise-fahmy

a barristers’ chambers specialising in equality law could be expected to weigh such a complaint impartially and decide in a lawful manner

I don't understand how this makes sense given the findings against GCC at the first tribunal.

IANAL so take this with a punch of salt, and perhaps any lawyers can point out errors to help all our understanding? TIA!

I am* a devout Christian from a denomination that sees homosexuality as sinful.

If stonewall pressures my employer to sack me because of my beliefs, this is inducing discrimination.

If stonewall pressures my employer to sack me because I behave like an arse to my gay colleagues, there is no discrimination here.

Is that about right?

Either way, the judgement also suggests if my employers are a bunch of right on hot shot lawyers, it's unthinkable that stonewall could induce them to break the law and discriminate anyway, cos said lawyers are so right on and clever.

*I'm not in real life

Omg why is that so big writing?😲Sorry

It's a perfecty reasonable expectation. It's just that GCC failed to.live up to it.

Same as it being a reasonable.expectation that a police officer will follow the rules on strip searching, or a doctor on informed consent, or that a builder will put lintels over a window. You should be able to expect someone to do their job correctly. But sometimes they don't.

🤣🤣🤣Thanks though.

If your large type Christian was for instance saying 'God bless you' as a greeting or wearing a visible crucifix or refusing to work on Christmas Day and they got fired, that's kind of the same as this judgement. Whilst the behaviour might bother some people it's a manifestation of their belief which is innocuous.

In the example you give, they would get fired whether they had a protected belief or not because their behaviour is illegal or prohibited anyway, right?

There's a lot of really bad legal takes on this thread.

Firstly, Stonewall's actions here were in the context of being an organisation whose staff member was being pilloried by AB, and their complaint to chambers about that, rather than in the context of specific advice under the Diversity Champions scheme.

Secondly, it's really odd that people think those who advise organisations should be directly liable to third parties who are then harmed by those organisations on foot of that advice. If my employer unfairly sacks me having taken legal advice, I can't then sue their lawyer for inducing my sacking. Because my contractual relationship is with my employer. If they act in a way that causes them harm (by having to pay damages) then it's up to them to sue those with whom they have a contractual relationship (i.e. their lawyers) if they wish.

Thirdly, nothing that Stonewall advocated for necessitated the discrimination against Bailey. A general complaint about someone's behaviour does not cause or even induce any specific response. How to act is a decision for the organisation being complained to.

The judgment is a well reasoned one. Not only does it correctly identify the three issues above - it also correctly reflects that there is no indication that Parliament ever intended the cause/inducement sections in the Equality Act to apply to anyone who might complain to an organisation about one of their employees or associates. That ability to write to an organisation and say that you are unhappy with the behaviour of a member of their staff or someone they are associated with should not give rise to civil liability. What Parliament had in mind was a much more direct causal link.

"Getting someone fired for a protected belief is illegal. Getting them fired because of something they've done is not (you can argue you would have got them fired if they'd done the same thing for a different reason)."

Yes we all get it, you can believe what you want but you certainly can be fired depending on how one acts on those beliefs.

Regardless, Stonewall never "got" AB fired. She lost her case against them and also lost the appeal. The courts have ruled twice now Stonewall did not do any wrongdoing. For legal reasons, it's best to avoid saying "Stonewall got her fired".

After spending somewhere around £1 million or so for the original case and appeal, she won £20k from Garden Chambers. Apparently they didn't follow policy to the letter when sacking her (and if they had, AB wouldn't even have that £20k payout which doesn't sound much when compared next to £1M).

If this really was about "women's rights" or even "lesbian's rights" just think what that £1M - £20k could have been spent on instead of throwing it away endlessly pursuing a gay rights charity who also happens to support trans rights.

Anyway did mumsnet users really manage to "garden" 1 million for her? Or did JK Rowling help out?

Apparently they didn't follow policy to the letter when sacking her (and if they had, AB wouldn't even have that £20k payout which doesn't sound much when compared next to £1M)

Indeed, there's been so much spin put on her initial 'win' when the only claim she actually won was regarding a badly worded tweet from GCC -

Dr. Michael Foran

https://knowingius.substack.com/p/bailey-v-stonewall-and-garden-court

The tribunal upheld Bailey’s claim that Garden Court Chambers had unlawfully discriminated against her when it tweeted that it would be investigating her. This was done with the approval of Heads of Chambers, in full knowledge and with the intention that it would spread on social media [304]. The Tribunal concluded that this was a detriment that gave rise to a reasonable sense of grievance because it suggested that Bailey had done something that warranted investigation. This as an unnecessary response made in haste without due regard to the internal complaints procedure or the effect that this would have on Bailey.

Edited to add, she won a second, later small claim for a 'messy bundle' at the initial hearing

I don't understand how this makes sense given the findings against GCC at the first tribunal.

I think, but could be wrong, that he's saying that whatever Stonewall may have wanted, they had no reason to suspect that GCC themselves wouldn't have followed a proper process, whether they ultimately did or not wasn't the issue. Which is strange to us, but only with hindsight when we know what GCC did.

The claim is that Stonewall fully intended to "cause" her to suffer a detriment for her protected act. Allison had to demonstrate that to win the appeal. The burden of proof was hers.

That Stonewall directly caused Allison's treatment by GCC wasn't shown in the tribunal to the panel's satisfaction and the EAT only considered that evidence (ie testimony and bundle evidence from people at Stonewall and GCC) and concluded that there was nothing to add to their conclusion.

Indeed. So many of these 'wins' in court have been down to sloppy process rather than some blanket rule that 'GCs' can behave how they like in or out of work without consequence.

I suspect that the table will turn with increased awareness but not in the way some people expect. Some GCs (can be seen on this board) feel emboldened and think they have every right to misgender trans colleagues or customers, or say whatever they like about trans people in public and be protected. This rise in objectionable behaviour will coincide with HR departments becoming more savvy of the need to follow proper process. I don't think the result will be good for said GCs.

Sorry meant to quote @RosaTanks

And this was the fault of Garden Chambers and GC only. Nothing to do with Stonewall.

£1M in a failed attempt to make Stonewall look bad.

Did you use # to try to make bullets?

• Bullets, like this, start with - (minus key).
• The # (hash key, sharp if you are a musician, or pound if you are in the US) will get you what MNers affectionately know as "the bigly text", as demonstrated in my opening line.
• The preview button will let you check how your post will come out before posting it.

Love how enraged some are at the idea of women earning and spending our own money. Tells you everything about how they view women and feminism 😂

Her whole fundraising campaign was built on the "I am suing Stonewall' ticket, she has now had two attempts and lost £1m of crowdfunded money and achieved nothing of import for the gender critical/sex realist cause.

Surely it should be taken into account how influential Stonewall was at the time, ie their requests would likely be met with actions to try to please them.

It will also be relevant if anyone from Stonewall had ever had any interactions with anyone from GCC.

Typically at the time, if Stonewall said “jump”, organisations and businesses would respond “how high?”. Furthermore, if Medcalf had reason to believe anyone influential from GCC was onboard with Stonewalls beliefs, Medcalf would reasonably have expected GCC to do fulfil their wish.

@RosaTanks - IANAL either, but I think the answer to your bigbold question is yes.

In this scenario you can be fired for behaving like an arse to someone. It's not your beliefs that get you fired. Believing someone to be a sinner doesn't mean you have to behave like an arse towards them so yes getting you sacked for merely holding the belief would be wrong.

The analogy breaks down because behaving with respect and decency towards someone you believe to be sinful is relatively easy because you share the same definition of what behaving with respect and decency looks like. In the case of TRAs, "behaving with respect and decency" is defined as sharing their belief system and acting as if their beliefs are true. How then can someone who doesn't share that belief system ever show that they are nevertheless behaving with respect and decency towards them?

Edited to add, she won a second, later small claim for a 'messy bundle' at the initial hearing

The second claim she won was on the outcome of the investigation, nothing to do with the crappy bundle.

She was upheld on detriments 2 and 4 of her claim. These are the Twitter response by De Menezes, and "Garden Court upholding the Stonewall complaint, finding that the claimant's tweets 17 (Morgan Page, 22 September) and 5 (Sunday Times , 27 October) were likely to breach BSB core duties".

Read the first judgment.

Indeed, there's been so much spin put on her initial 'win' when the only claim she actually won was regarding a badly worded tweet from GCC -

No. Inform yourself better with something other than TRA propaganda. She also won detriment 4.

www.judiciary.uk/wp-content/uploads/2022/09/Bailey-judgment.pdf

If this really was about "women's rights" or even "lesbian's rights" just think what that £1M - £20k could have been spent on instead of throwing it away endlessly pursuing a gay rights charity who also happens to support trans rights.

Translation: How dare adult women choose to donate their money where they like!

For me, the legal clarity from these cases, not just the rulings but also the dissection of the rulings by Legal Feminist and posters on these threads, is well worth the donations, even when the GC person loses. Knowing what I can and can't lawfully be fired for is critical to my mental health, continued employment, and ability to financially support women in need because:

• Fearing that I might be fired if, say, someone managed to link my Mumsnet postings to my meatspace identity is pretty anxiety-inducing. Knowing that I'm allowed to manifest those beliefs as long as I don't harass or discriminate at work or towards people I work with is reassuring.
• Pre-empting "well, you don't have to post on MN about gender": having to go offline and not talk about the threat to women's rights posed by redefining "women" in law would be pretty awful too. Think about how Winston feels in 1984. Also, telling women to be silent because of fear or any other reason disqualifies you from being feminist.
• Continuing to have my current job allows me to dripfeed hundreds of pounds per year into Women's Aid and Abortion Support Network, helping women (even the ones who think they are men or non-binary) facing violence and restrictive abortion laws to get control back over their lives and bodies. If I get fired and end up stacking shelves, I cannot afford those monthly standing orders to help women.