It may be useful to put here the pithy opening to Ben's skeleton.
Introduction
1. Section 111 of the Equality Act 2010 (‘EqA10’) makes it unlawful for a person (A) to instruct, cause or induce (or attempt to instruct, cause or induce) another person (B) to contravene that Act in respect of a third person (C), where the relationship between A and B is one in which it would also be unlawful for A to engage in prohibited conduct against B.
2. This appeal concerns the ingredients for liability for causing or inducing unlawful direct discrimination. It is the first appeal to this court to consider those matters.
3. In this case, the Claimant is person C. She was a practising barrister and a member of Garden Court, which is person B. Garden Court was a member of Stonewall’s ‘Diversity Champions’ scheme, under which Stonewall was a service provider to Garden Court within the meaning of EqA10, s29. Stonewall is person A.
4. The Claimant holds ‘gender critical’ beliefs, that sex is real and observable, and that gender is a subjective identity with no objective basis. She also believes that gender theory as espoused by Stonewall in its campaigning is sexist, homophobic and particularly damaging to lesbians. The Tribunal held that those beliefs are protected for the purposes of the protected characteristic of belief under EqA10, s10 (ET Judgment, §§279-280 & 290-3 [157-158, 160-161]). That conclusion has not been appealed.
5. The claim against Stonewall under EqA10, s111 arises because Stonewall made a complaint to Garden Court about the Claimant’s expression of her beliefs in a number of ‘tweets’. On the Tribunal’s findings, that complaint was motivated by prejudice against the Claimant’s beliefs, was made as a ‘protest’ to a perceived ally in the debate, and invited Garden Court to consider the complaint and ‘do what is right’. Garden Court investigated and partially upheld the complaint. In doing so, Garden Court directly discriminated against the Claimant because of its opposition to her belief, which was in part influenced by its association with Stonewall. None of the relevant tweets was in fact expressed in terms that justified upholding the complaint.
6. The Claimant’s case, in short, is that:
6.1. Those central facts are sufficient to establish liability against Stonewall for causing and/or inducing Garden Court’s direct belief discrimination.
6.2. The reasons the Tribunal gave for its conclusion to the contrary are wholly inadequate and focus on irrelevant matters.
6.3. The EAT’s attempt to shore up the Tribunal’s decision relies on a new test that is neither correct in law nor the test that was actually applied by the Tribunal or contended for by any party.
6.4. Ultimately, since the purpose of s111 is to contribute to the elimination of discrimination in the fields to which the EqA10 applies, any sensible interpretation must support liability in the circumstances of this case because Stonewall’s actions themselves had all of the characteristics of direct discrimination: it acted because of the Claimant’s beliefs and to her detriment in a way that in turn brought about Garden Court’s discrimination. Reduced to their essentials, the circumstances are as follows:
(a) Because of A’s prejudice against C’s protected characteristic, A complained to B, whom he perceived as sharing his view of that characteristic, to ‘protest’ about that characteristic; and
(b) In response to that complaint B, who does share A’s view of the characteristic and was further influenced by their association with A, directly discriminated against C by upholding the complaint.