Thread by @ALLIANCELGB

We will be live tweeting again today in the preliminary employment tribunal hearing on @BluskyeAllison’s claim against Garden Court Chambers (GC) and @stonewalluk (SW).

To follow the live tweeting, it will be helpful to read Allison’s account of the events leading up to her claim in her crowdfunder. allisonbailey.co.uk

The hearing reconvenes at 9.30.

There will also be live tweeting from @SafeSchools_UK.

Judge Stout opens proceedings. Robin Moira White (White) appearing for Stonewall (SW). Anthony Johnston (Johnston) for Garden Court (GC).

Johnston: Claim was originally against GC under art 47. Respondents can’t be criticized for complaining that claimant hasn’t identified individuals.

Johnston: claimant quite unfair to suggest GC is trying to limit scope of Equality Act (EA). GC refutes this. It suggests that individual members of chambers are all tarred with the same brush as discriminators.

(Johnston): presently no claim against GC chambers and no liability of individual members if the claim is left in its unamended form.

(J): implicit in earlier hearing about amending claim stated that claimant should have been able to identify the individuals she was accusing of discrimination. She still hasn’t.

(J): Cooper had based remarks on basis of strike out / deposit application. The tribunal is not limited in its consideration of application to amend.

(J): failure to identify individuals is problematic esp. in relation to section 47. No less problematic under section 57, since you still need to identify who it was and whether they represented GC.

(J): denies applicability of Denbigh as regards Silfis (?sp) principle. No question of opaque decision making at GC. Claimant should have named individuals she suspects of involvement in influencing decision.

(J): Khan’s submission refers to subject access request in respect of certain individuals. Response: each barrister is individually responsible.

(J). Brewer was identified. Doesn’t accept others couldn’t have been. Email about dinner with chair (sic) of SW not clear who was copied in.

(J): content of email on what should be posted bears no relation to what was actually posted, no strident language, so the person who sent it csn’t be held responsible.

(J): on Brewer. Meeting on parl strategy. Brewer noted as Teli/GC but was not there to represent GC. trans Equality legal initiative. Brewer did help found Teli but that doesn’t make Teli a GC group any more than GC is LGB alliance group because Claimsnt is involved with it.

(J): Brewer was not acting on behalf of GC. Judge challenges that. It was a GC working group. Surely if management sets up such a working group it is acting on behalf of GC

(J) replying to judge’s challenge. No evidence that Brewer influenced decisions. No other individual has been identified.

(J) (constantly half laughing) no evidence that Brewer was acting on GC’s behalf or that she influenced any decisions.

(Judge) I saw emails between SW and GC. Johnston prevaricates and says claimant will not be able to identify any individuals who discriminated against her.

(J) on conscious or unconscious bias in work allocation. Issues under consideration by women’s task force not specific to GC. Rather shows GC was particularly aware of unconscious bias.

(J) comparisons with relations between SW and GC irrelevant.

(J) claimant’s response to ethics committee contains lots of detailed personal information. Would be wrong to share. Only info relating to any breach of bar code of conduct can be shared.

(J) problematic about claimsnts tweet about Page as “male-bodies person” what was problematic was suggestion that sexual coercion of young lesbians was the object. Very serious allegation.

(J) second problematic tweet by claimsnt. Problem was not claimant’s GC beliefs but substance of tweet. Suggests criminal culpability complicity of SW. Whether or not intended to suggest it.

(J) allegation should not be made in the absence of corroborating evidence. Breach of code of conduct.

(J) on application to amend [including chambers as well as Ltd co. etc]. Not well explained. Application to add 3rd respondent and section 57 are real amendments. Section 37 not cited because not apt. Relationship involved here is novel and not dealt with before.

(J) section 57 is the right route. If someone acting as agent of chambers then 57 applies. If they are not then no route to liability for chambers under 47 and 109. If not acting for FC only individual liability under 47 and not for chambers.

(J) if established that an individual was acting for chambers then 57 could apply. Otherwise not.

(J) rejects Cooper’s description of amendement as “misnomer”. It is very substantive because all the barristers of GC would be liable.

(J) even those who were not even members of chambers would be liable. Judge interrupts and says the delay was minimal so little prejudice involved. J says prejudices not from delay but goes back to lack of identification of those concerned.

(J) claimant is herself a barrister so should have included GC chambers in her original submission. Judge says she could still grant it anyway. J agrees that she could.

(J) waffling a bit. The real meat relates to fact that the claim even in amended form is wholly inadequate and chances of success are low. I other words judge should dismiss.

(J) judge queries this but J continues to repeat that failure to identify individuals abd establish they were acting fit GC is key to the case.

(J) other issues in the claim. PCP pleaded is inherently problematic. No basis for asserting the 2nd or 3rd respondents treated persons with gender-critical beliefs in any discriminatory way.

Judge refers to claimsnts explanation of why she included material in her tweets. Johnston responds that both tweets allege what is essentially criminal conduct. Without evidence. At risk of breaching bar code of conduct.

(J) on detriments. Not actually against GC chambers. Perhaps Cooper will respond. Cooper explains that two paragraphs do allege against GC individuals who colluded with SW to obtain compliance with SW’s complaint.

(J) each barrister is own data collector so must be personal responsibility and no potential liability for GC chambers. Judge says only 2nd respondent was asked subject access request but not 3rd respondent. All 2nd respondent dus wrong was to leave out docs they later supplied

(J) allegation that GC had PCP of acting on SW’s instructions wholly unsubstantiated and too weak to be considered.

(J) reference to email of 30 Oct indicating that Sikand stated claimant was under investigation. Joint heads of chambers only upheld two complaints made by SW. Others not. Acted after advice from bar council committee. Expulsion never considered.

(J) she was asked to remove tweets and didn’t do do. Claimsnt has no chance of establishing that there was a PCP to follow SW’s lead. Judge: but there could have been.

(J) repeats case inherently weak. Repeats failure to identify individuals. Repeats that judge ought to dismiss claim. Otherwise 200 members of the bar have these allegations hanging over them.

Judge: why not order identification of individuals? Johnston: that horse has bolted. Claimsnt still refuses to identify individuals.

(J) application for strike out in relation to claim against clerks. Khan’s witness statement. Claim re loss of income. Cooper had suggested two competing analyses. Disagrees. Khan looks at opportunities to work. That shows whether any attempt was made to withhold instructions.

J denies loss of fee income in 2019 was significant. Clerk said everything in diary seemed to be being moved to following year. The exchange is inconsistent with claimsnts claim that work was withheld. So claim has little or no predict of success.

[Break: helpful info: “An essential ingredient for all claims of indirect discrimination (s.19 EqA) and many
claims of failure to make reasonable adjustments, (s.20 EqA) is the application of a provision, criterion or practice (more conveniently referred to as a “PCP”)”]

[info: CLFIS principle comes from the case of CLFIS v Reynolds; quoted on para 50 of Denby case]

[info: An essential ingredient for all claims of indirect discrimination (s.19 EqA) and many claims of failure to make reasonable adjustments, (s.20 EqA) is the application of a
provision, criterion or practice (more conveniently referred to as a “PCP”)]

White for SW says feels like Alice in Wonderland. Makes joke about cake and bottle. Case keeps getting smaller

[White] now claimed that particular unnamed in GC colluded with particular individuals in SW to produce complaint. Without knowing all these people are it’s unsustainable. Judge says only para 18 against SW. She says claim suggests everything done was instructed or induced by SW

(W) SW said to have instructed or induced behaviour that claimant “doesn’t like”. Need to particularize was made clear at an earlier stage. Completely clear who is being accused.

(W) SW says case has no merit. Counsel was constantly instructed to identify. Cooper said disclosure wasn’t complete. White says it is in respect of SW.

That should say it should have been made clear.

(W) redacted document. Claimsnt has not given disclosure in spite of considerable resources thru crowdfunding. Causing considerable distress to SW and the people it helps.

(W) both SW and GC try to make progress with diversity. Protected characteristic of “trans, gender reassignment, whatever” seems to be giving society most trouble.

(W) perfectly reasonable that individuals within an organization with similar views exchange emails about what claimant has done.

(W) it is said that by virtue of being a service provider section 1117 is met.

(W) gives silly example of person who supplies photocopy paper who won’t influence decisions. There is a range of suppliers. Cooper says they do influence GC White seems to be arguing that they don’t.

Judge queries this. White wants to dismiss “portmanteau words like influence” (!). Section 111.1 is hopeless. No instruction. Claimant has been unhappy with discovery at each stage.

(W) no involvement of SW in the disciplinary action. SW must be struck out. Or deposit order point. 111.1 can’t apply. Judge refers to claimant’s GC views and SW urging action. Surely this is enough to show inducement to discriminate.

(W) plainly no instruction at issue. Will come to “induce” later. Complaint made. ImagIne that chambers happens to do something unfortunate after a complaint is made. No cause established of any discrimination. No influence can be established.

(W) section 111.3 about “induce” needs discriminatory intention. Derives from Union law. SW had serious concerns that controversial beliefs were expressed in a way not founded in solid evidence.

(W) what does induce mean? Must mean induce discrimination. All about posting allegations without citing evidence. Judge says it doesn’t matter whether any discrimination was applied. The point is whether SW sought to induce it. Maybe not strike out. White says it may be.

(W) evidence required. Time for discovery has passed. For whatever reason claimant has failed to give discovery. As far as indirect discrimination is concerned W says it’s impossible to discuss the claim without disclosure.

For victimisation claim Claimant has to prove that SW knew of the alleged protected act

(W) Internal matters - time & again when emails are discussed by Cooper SW is not mentioned. "We have given the discovery we should"

(W) A text from Ms Brewer - Ms White does not like the use of the word 'influence' in relation to SW. Text read out to ask is there any influence from SW on internal difficult circumstance.

Judge disagrees - names my be the other way round as so hard to read redacted docs

Ms Brewer of GCC agreed to an investigation - no influence whatsoever from SW. After full disclosure SW have said nothing to challenge GCC's decision. No reaction in that way. W understands that GCC remains a SW Diversity Champion "to this day".

SW sees itself as "something of a bystander" in this case. SW has a difficult role in pursuing forward thinking on equality matters which is sometimes controversial

Back to Cooper for AB. Judge says now time to look at some matters including PCPs. Cooper says evidence we have heard is start of what is needed in a final hearing. Also says "we have NOT completed disclosure". The material raised so far is only relevant to preliminary hearing

On identification of individuals - there is something confected about not naming people. None of respondents have asked for names of decision makers as they know from the pleadings what has happened, what was discriminatory and who took those decisions

Cooper continues that if claim is not particularised it does not mean that claim should fail - Reynolds case. That case said Respondents should redact documents where they are in a position to do so. As far as GCC emails are concerned that is quite possible -

All at GCC are responsible for their own data control. Claimant cannot name individuals without full disclosure so "we are in a Catch 22 situation".

Judge says you can only establish liability against an organisation if an individual is named. It makes the case more complicated

Cooper says it is not complicated. We have evidence that people within GCC were communicating with heads of chambers

The Claimant is entitled to say the discriminatory decision was taken by a group of people feeding into a process. Second, Claimant can infer that these separate people were communicating their views to heads of chambers, and that these views influenced the decision.

There is no need to name individuals, nor is the Claimant in a position to name, due to redaction of documents

There is a danger of getting into the level of detail of which emails were seen and which were not - unless we have a full hearing

Cooper: clearly not strike out issue. We have to obtain unredacted communications by getting them from those concerned. Cooper rejects other side’s point that court has a wider assessment remit at this stage.

(C): inappropriate to conduct detailed analysis at this stage. On reduction of fee income: Johnston said it was about loss of opportunities. No. After her first protected act her clerking arrangements were changed.

Suddenly she was being given burglary cases suitable for more junior barristers.

Judge troubled by subject access requests. On PCPs judge asks Cooper where GC beliefs are being treated within chambers as unworthy of respect.

Cooper says pleading doesn’t say chambers are liable for responses of specific individuals. Again this sort of detail shouldn’t be discussed at this preliminary hearing. Judge asks whether there is an allegation against 2nd and 3rd respondents rather than individuals. Yes.

C: always clear that Claimsnt was claiming that GC chambers (or Ltd co., which are essentially the same). Chambers is also a data controller. Its failure to respond was also discriminatory.

C: PCPs apply to all the alleged detriments. Claimant claims the first PCP was that chambers adopted the view that GC views are bigoted and unworthy of respect and this view was applied in withholding instructions and launching investigation.

C: no doubt that GC’s tweet stating that AB was under investigation had the effect of distancing GC chambers from her and forever appears in internet searches of her name.

C: First PCP is SW’s view. That GC views are bigoted. Membership of Div. champ. Scheme is a vehicle of influence. Must be discussed in a full hearing of the facts.

C: White appears to be suggesting that SW is so lacking in influence that it can’t have had any impact and can’t possibly be liable. No threshold of influence under section 111.7.

C: attempt to influence / induce action would itself be unlawful, whatever action is taken. None of the questions to be considered are straightforward and they all need to be dealt with in a proper hearing of the facts.

C: White is quite wrong to deny that SW’s complaint was not an instruction. It certainly induced the investigation. Indeed it was a threat: you take action or else.

C: White’s position is untenable and astonishing for an equal opportunities organisation to make.

Sorry for double negative!

Judge decides to reconvene at 1.45

Please note: we used the abbreviation GC for both Garden Court and gender critical, which may have caused some confusion. We should stick to GCC for Garden Court Chambers.

Judge Stout reconvenes hearing. She is going to give judgment in this preliminary hearing. The respondents have sought “strike out” because they maintain the case is weak.

Heart of case is heated public debate on gender theory in relation to trans persons. Claimant believes TWAW is prejudicial to rights of women and LGB people

Claimant believes connection with SW is prejudicial to her rights. After tweets on these issues and launch of LGBA she suffered detriments including substantial loss of fee income.

GCC object to claim because section 47 doesn’t apply to chambers. Preliminary hearing in November made it clear that many issues such as disclosure remained to be resolved.

Amendment adds section 57 to earlier claim based on 47. Court has discretion to apply a range of different principles. Adding new claim ok here because it is a form of labeling. Everyone agrees. Delay not so relevant.

Strike out ruling would have to take all circumstances into account. Could be appropriate even in a discrimination claim. If little chance of success deposit of £1,000 could be required.

Judge wil not summarize arguments. Merits are relevant to strike out, deposit order and amendment application. First amendment: section 57 is the proper home for this claim. Cites precedents. Chamber can be added in principle .

However individuals must be identified. Liability can only be attached to chambers if individuals are identified. Certainly in relation to victimization claim. However instruction claim doesn’t require it.

Claimant must identify individuals within GCC. However judge is satisfied there is sufficient evidence to suggest there was discriminatory action.

Reasonably arguable case that some members of chambers were concerned about claimsnts tweets about launch of LGBA. Also evidence that Brewer was concerned and that she was acting on behalf of GC chambers.

It is not necessary to establish evidential connections at this stage. “More than reasonably arguable case” that she suffered detriments because of her views.

Communications with SW could be said to have amounted to collusion. More than reasonable case that reductions in fee income were about her views and not about “opportunities” as argued by Khan.

As regards subject access requests responses, claim cannot be said to be unarguable.

Now turns to the indirect discrimination. Respondent says people were just expressing personal views. Judge can’t see any evidence that her views were disparaged by Sikand. But Brewer’s communications do suggest it. Unclear whether Brewer was acting on GCC’s behalf.

Sikand’s investigation seems measured. However Brewer and other did see claimsnts views as bigoted and sought to communicate with heads of chambers about it. Enough material to go to trial.

Second PCP: claimant may not succeed in showing that SW caused action. However it did seek to persuade GCC to act and threatened it.

More than reasonable chance of success. So no deposit order .

The claim against SW. It did try to persuade GCC to take action against claimant because of her beliefs. The word “induce” is apt. Claim could succeed. White’s suggestion that service relationship doesn’t suffice to reach section 122.

Claim is arguable and amendment is fine since it is only relabeling. Respondents argue that 200 barristers being brought in is unclear. Unfortunate that three attempts were made to issue pleading but that doesn’t affect the claim.

Particularisation will be needed. Further disclosure will be needed. White suggests that a meeting between counsel is needed to go forward.

Final hearing is set for a date in June.

Judge: wants to set deadline for disclosure. Wants to avoid further disputes. Cooper needs instruction to determine precise mechanism of liaising. He says neither he nor Johnston have instruction te precise position on disclosure.

Cooper would like to ask GCC to search its servers for the search term SW but he can appreciate GCC might not like it. He suggests a date needs to set to agree on disclosure.

For instance order to disclose might be er by invoking GDPR. Third parties might be added. Cooper seeking to avoid any further loss of time through disputes do wants to keep to June. Set deadlines for gathering material for bundle. White says specificity of names is needed.

Especially in relation to SW and collusion White says individuals must be specified. Dates needed for particularisation, disclosure. Cooper says naming must follow disclosure.

Judge: individuals both from SW and GCCwho are said to have victimized claimant and operated PCPs through collusion will need to be named.

White and Johnston looking glum. They have nothing to add. Cooper says collusion is quite narrow in that it refers to attempts to get GCC to act. Judge: how to establish existence and specificity of PCPs.

Johnston says claimant must show under section 57 that whatever any individuals did they did on behalf of chambers.

So added.

Now all the dates. First hearing on disclosure then bundle then witness statements. Trial begins on 1 June. Witness statements needed by 4 May says White. Bundle by 14 April. Disclosure preliminary hearing 26 March.

The provisional hearing on disclosure should only require one day.

Amended responses: between now and 26 March need disclosure, further particularisation and amended responses. White thinks little or no further disclosure is needed from SW. White thinks pressure of time with this schedule is problematic. Cooper suggests 12 March for disclosure.

Discussion continues about dates for disclosure and particularisation

Particularisation is essential to know which witnesses must be called. White suggests it may be too tight a timetable. Cooper pushes back on that.

Cooper very much wants to keep to June date for hearing.

White has received instruction from solicitors that timetable is too tight. Johnston wants to preserve June date.

Judge froze and then vanished. Now back. White worried about time for witness statements. Cooper urges judge to stipulate that evidence establishing PCPs doesnt need to be presented at the early hearing.

Cooper: We are assuming that everyone will cooperate. There may be third parties from whom disclosure is needed. Particularisation impossible if redactions are maintained in third-party disclosures. If other parties dont cooperate then June wont work.

Dates keep changing. Lost 🙃

Johnston: who are the appropriate representatives of GC to be named. Khan should be replaced by Menon.

Cost application. White: timetable based on cooperation. Two days, bundle of 500 pages. Didn’t work with 1900 pages sent. “Do you need all that?” Bundle too big. White thinks it’s not very cooperative. Unreasonable. £6,000 costs incurred.

In other words White says claimant (AB) sent too many files and docs. Cooper says claim for costs completely unfounded.

Cooper claims it’s completely unreadable to suggest claimant should have been more selective. They are continuing to discuss costs but we are signing off. Hope everyone found this illuminating./end

Cooper says White is completely wrong. Solicitors for Claimant had to do the work of the Respondents in the absence of their required disclosures by the requested dates.

Problems with disclosure were on the Respondents' side. Deadlines were missed. No cooperation and Stonewall did not bother to prepare their bundle and share information with Claimant. Instead of cooperating Respondent made unreasonable demands.

Stonewall asked Claimant to particularise each page of her disclosure instead of working cooperatively to reach a reasonable list of key issues. So Cooper says that cooperation is missing from both Respondents in preparation for this hearing

Respondents also missed deadline for producing witness statements. First respondent asked for particulars of each of 2000 pages to be considered at this preliminary hearing. Quite unreasonable and does not indicate a cooperative approach

Cooper refers to "radio silence" from Respondents and constant missed deadlines and delays leading up this hearing

The idea that the Claimant is unreasonable while both the Respondents have been in significant breach of instructions is absolutely ludicrous says Cooper.

Cooper requests that claim for costs from Respondents be dismissed

Stonewall thinks it has "come very close" with correct disclosure. White asks for the costs hearing to be heard at another time. Judge notes that Respondents have ignored Judge's directions. Most cost would have been incurred by Claimant who had to do the work of Respondents

Hearing now closed.