Allison Bailey v Stonewall

[impossibletoday]

https://x.com/BluskyeAllison/status/1979480101474443398?t=Sg3wz-Pq2S7lpQ2rTpJZ2g&s=19

From TT2

BC: s112 expressly contemplates intervening acts of B. It cannot be an intervening act which breaks the chain that B thinks about and then acts upon the causative action relied on in a way that is discriminatory.

Its whether it was objectively reasonable forseeable.
LW: Was it the fact of an investigation or the mishandling?
BC: By causative action I mean SW's complaint. The unlawful action was the partially upholding.

From TT2

LW: Was the outcome reasonably forseeable?
BC: Yes. KM was writing to GC saying AB is saying tphobic things on the internet. So forseeable will think about and may uphold his complaint. Indeed some at GC shared KM hostility.

From TT2

LW: Where does it come in that it was GC mishandling?
BC: Its not right to say that lead to the disc. They make findings about what GC did, they were critical of some of these things. This was part of the set of the facts from which they inferred the outcome was due to the PC.

From TT2

Because GC is an org its consideration involved a process and number of ppl. That doesnt make the comms and process different in principle to what might be done in an individual's head.

From TT2

The things IO has pointed to are part of the consideration of and decision about the complaint itself. Thats the character of all the steps. So I submit, on any view in this case there is nothing about the character of those things that is anything other than the intervening act

From TT2

of B in thinking about and taking the decision on the complaint which is the cause of this contravention. Final fallback position is even if intervening acts might sometimes break chain, even if intervening act of B might break the chain, in this case the acts cannot do so.

This is bc it is B doing the basic contravention directly in ref to what A has done.

From TT2

Im unclear whether the 'just a protest' characterisation could be said to be a basis on which the ET did and properly could have found 112 not made out. If this is in play I say the subjective intentions of A ought not be relevant.

The word cause does not imply intention and intention is not relevant as a general principle in disc. law. Therefore its not relevant whether KM intended the complaint as just a protest. Only potential relevance of the just a protest is if that goes to forseeability.

From TT2

That has to be considered objectively not in relation to KM subjective intentions. ET did not consider that objective q but saw it as one possible interpretation
LN: Dealing with a different issue. Talking about subjective intention. They dont in terms deal with forseeability

From TT2

BC: Yes. The formal content of letter itself. The ET does identify this as a complaint. Q about evidence as to how GC saw the complaint. There was evidence on this but the critical point is it was understood as a complaint by GC.

From TT2

[BC gives bundle ref to show seen as complain]
LB: Ref to complaint appears again and again. Para 376
BC: Focus there is whether threat to their relationship w SW. Plainly forseeable objectively that GC would see and act upon as complaint. That ought to be enough.

From TT2

However, not just a complaint. Sent by Head of T Inclusion for influential org. Branding AB beliefs as bigoted and hate speech. Miller and Higgs show that position is a prejudice about those beliefs like any other eg prejudice about race bc its not true.

At that time SW was seen as moderate and respected. So ofc reasonably forseeable.

From TT2

[Further ref to authority] Clear first thing that will happen is complaint is investigated and decide whether to uphold on grounds in the complaint that are fundamentally prejudiced and discriminatory. Its not ok to express beliefs in a way that is tainted by prejudice and untrue

on behalf of an org within the sphere of the Act.
LB: Would case be same if SW put out a press release on AB but not addressed to GC saying do something?
BC: No

LN: Why not?
BC: That would take it outside relationship which Act applies
LW: Why?
BC: Statement to public at large. Not in context of relationship and employment context. If my boss makes a statement on twitter that is lawful re twitter but I am offended I cant go to e'er.

LB: Would case be same if SW put out a press release on AB but not addressed to GC saying do something?
BC: No
LN: Why not?
BC: That would take it outside relationship which Act applies
LW: Why?
BC: Statement to public at large. Not in context of relationship and employment context. If my boss makes a statement on twitter that is lawful re twitter but I am offended I cant go to e'er.

This was my point earlier. Stonewall directly contacting GGC was the direct act, publishing to the world at large would not be the same.

From TT2

But also not reasonably forseeable that GC would take action in that scenario.
LW: Would need a fact find?
BC: Yes. Our case is that its obvious that if you make a complaint its likely to be investigated on that basis.

Its enough that you have action bc of the PC but for and in most cases forseeability
LB: Of detriment
BC: Yes.

From TT2

On the facts of this case influence and but for are conceded. Reasonable forseeablity is there in my sub. If Im wrong it would need to go back to the ET.

From TT2

IO said there was already an investigation ongoing but it is clear that the first part of the investigation had concluded, then SW complaint comes in and its that complaint that GC run with that results in the discrimination by GC.
LB: Yes Ms Sikand was just about to say no

From TT2

further action
BC: Yes. And C was only asked to respond to the SW complaint. Those are my subs
IO: Two tiny points of detail. In relation to detriment GC not associating with AB, ET sees that detriment has already taken place in relation to the response tweet
LB: 24th Feb tweet

From TT2

IO: Yes. And finally BC spoke about actions of B as an org and said not individual's actions. Note there are 119 barristers and specific allegations against some so a word of caution to think of that as a monolith.

From TT2

LB: We will ofc reserve judgment. Very grateful to both sides. We have been saying to each other that the oral advocacy on each side has been very high quality. When we have reached a decision we will send out embargoed draft in usual way for typos etc

End of appeal hearing.

And that is the end of the appeal.

Presumably the judges will spend some time discussing and deciding, then will send out a draft to.the lawyers, then publish the final judgment.

No timeline given, but we can speculate that it will be before Christmas.

Morning sessions here

https://threadreaderapp.com/thread/1980912611941298257.html

https://threadreaderapp.com/thread/1980945162495787237.html

Well done Myrtle! And thank you so much.

Stirling work, Myrtle. Thank you.

IO had a definite sow's ear job there and I don't think got anywhere near making a silk purse. But she was several rungs above some of the barristers we see on the GI side when it comes to professionalism.

I couldn't be a judge. I'd have found it impossible to contain myself when BC pointed out that the argument that the ET hadn't treated KM's email as a complaint didn't really hold up in the face of the ET decision containing the section heading 'Stonewall complaint'.

Thank you. We are all so sorry you've been so poorly, and hope you can get some rest now. It's obviously a difficult week to switch off in !

I find this defence utterly bizarre. In my employment contract, and I'm sure most other people's, there is a difference between what I do in my own time and what I say as part of my job. KM can say whatever KM likes in KM's own time, but KM had the weight of a big, influential, well funded organisation behind KM and support entourage and sought to cause a detriment to AB as part of KM's role in Stonewall. That's very different than whatever KM's views are down the pub.

The big problem here of course is that Stonewall has been behaving as if the law is as they want it to be - i.e. misogynistic and denying women their sex based rights. Sadly not as it is.

The problem is that KM's views were the same as Stonewall's views and as an institution the EA2010 applies to Stonewall and it's employees and their actions as part of their jobs, it doesn't apply to KM's individual beliefs down the pub.