Thread by @tribunaltweets

Good morning. Starting at 10:30 this morning, we hope (pending court permission) to be live-tweeting Allison Bailey's case at Employment Appeal Tribunal.

Ms Bailey took her Chambers (Garden Court) and Stonewall to Employment Tribunal in 2022 and won her claim against Garden Court, on the basis of discrimination because of her protected beliefs: tribunaltweets.substack.com/p/allison-bail…

Her claim against Stonewall for “instructing, causing or inducing” that discrimination by Garden Court did not succeed, and it is that decision that is being appealed today.

Ms Bailey has written her own description of this hearing (which will take place today and tomorrow) here:

We have not been able to locate a Stonewall statement about the appeal.

https://twitter.com/BluskyeAllison/status/1789741069007036631

We are advised that the hearing will begin at 10.30.

Abbreviations:

J: the Judge Mr Justice Bourne

AB or C or A: Allison Bailey (claimant, appellant)
BC: Ben Cooper KC, barrister for AB

SW or R: Stonewall (Stonewall Equity Limited), respondent
IO: Ijeoma Omambala KC , barrister for SW

GCC: Garden Court Chambers (Ms Bailey's Chambers at the time of the events in the case)

[The remote hearing is beginning]

[The Clerk is giving administrative instructions and ensuring that those viewing remotely can hear the proceedings]

[The Judge has now entered and the hearing will begin]

BC: note that Mia Hakl-Law is present for GCC to take notes.
J: Reminder to all remote listeners to mute

BC: [checking that everyone has bundle, authorities bundle, skeleton arguments x 2]
BC: TribunalTweets are attending - can I check permission to live-tweet?
J: Any Qs? No? Then live-tweeting is allowed; I understand TT are experienced and understand the rules etc.

BC: Note that the room is quite hot ...
J: Will have to check with the court staff -
Clerk: [missed]

BC: Timing - I hope to finish my submissions this morning or shortly after lunch, and IO hopes to complete by the end of the day.
J: Thank you - we are not under time pressure, but will need to stop today c 4pm.

BC: Will start with some remarks and then a roadmap of my submissions.
BC: Equality Act 2010 creates statutory tort of inducing or causing a breach of the EA.

BC: In this case, SW is "A" - inducer/causer; GCC is B - the party breaching EA; claimant is C, the person affected.

BC: No dispute that SW is in the relation to GCC that is required for this, as service provider [cites fact-finding from ET]

BC: AB holds 'gender critical' beliefs - that sex is not trumped by 'gender identity', and includes views on SW's beliefs/campaigns [again refers to ET findings]

BC: AB tweeted her views on SW campaigning, and announcing formation of LGB Alliance. Significant reaction on Twitter, including tweets sent to GCC.

BC: SW head of inclusion Kirrin Medcalf complained to GCC about this; GCC investigation, upheld complaint re 2 tweets in particular. But, ET found the tweets did not warrant that. None of this was appealed.

BC: GCC were "SW Champions" at this time, and that Maya Sikand then of GCC was influenced by this perception of SW as an ally, and this meant MS view of AB tweets was influenced.

BC: ET found that without SW complaint, GCC would not have found the tweets warranted any action.
BC: And, all this bcs of AB protected beliefs.

BC: So, re EA2010 s111 - A makes complaint to B re C; B upholds the complaint; and was influenced by the relationship between A and B; but for the complaint, B wd not have discriminated against C in that way.

BC: In my submission these basic facts are enough to show the liability of SW under S111, of causing or inducing the discrimination.

BC: There is some difficulty in identifying where the parties disagree on this question. The skeleton argument is that whether the SW complaint fell under S111 was determined by the ET, that it did not, and that this appeal is an attempt to relitigate.

BC: But that doesn't address whether the ET was right to find it did not.
BC: The meaning to be attributed to legislation is a matter for the law. SW skeleton does not address this beyond saying "cause or induce" should have ordinary meanings.

BC: SW sub para9 they say, no evidence that SW tried to procure the actual action that GCC took; which to me seems to imply that *if* SW had had the intention the contravention would have occurred -but the sub is basically bare assertion not argument.

BC: There is no explanation of what SW say "cause or induce" do actually mean, and no analysis of why they think ET finding is correct.

BC: This is not an attempt to relitigate - AB does not challenge any finding of fact by the ET - but instead argues that all the elements needed to find the S111 breach *were* found by the ET.

BC: So turning first to the core facts. I submit that ET primary findings give us 8 that matter.

J: Not listed quite this way in skeleton?
BC: Not quite - will signpost to skeleton.

BC: Fact 1: GCC was a SW Diversity Champion programme, £2500+VAT per year. para61 of ET judgment.

BC: Fact 2: AB beliefs are coherent set of beliefs and qualify under S10EA2010. Described in detail ETJ para [missed]

BC: Beliefs include disagreement with SW eg re "TWAW" and that SW campaigning absolutist, no-debate, have caused violence and threats against women; intrinsically hostile to women especially lesbians (pressured to have sex with male bodied people)

BC: And AB view that this was especially hostile bcs SW originally set up to campaign FOR lesbians not against them.
BC: AB Protected views are not just about 'gender identity' but also about SW. [para 289-293 ETJ]

BC: Fact 3; the C expressed her beliefs, including re founding of LGBAlliance, in a number of tweets in 2019; 2 in particular complained of; but ETJ found they crossed no threshold.

BC: see ETJ paras around 118; looking at complaints re the tweets. Tweet in particular re "overcoming the cotton ceiling" - says, workshop teaching heterosexual men how to have sex with lesbians.

BC: 2nd tweet where complaint upheld is one with link to a Sunday Times article, thanking the ST for describing the attacks from people with gender identity agenda.

BC: For GCC actions the ET had to consider Qs of holding versus manifestation of beliefs, in context of Human Rights Act; ETJ answers (para 327) that AB tweets did not cross the HRA threshold that would justify limiting speech.

BC: Judge am aware that the exact relationship between HRA9&10 and EA2010 interact is still in development eg Higgs v Farmor School later this year - do I need to explore?
J: Not at this stage no.

BC: So. There were a number of complaints to GCC, but, without the Stonewall complaints GCC wd have dismissed the other complaints about her. See for example para 132 ETJ re strong reaction on Twitter, also 147, 182 -

BC - all mentions that no action needed, this is up to end of September - Mia Hakl Law and Maya Sikander investigate, say no action needed - chronology is clear.

BC: But on 31st October there is SW complaint - Maya Sikander decides needs separate investigation, this leads to ETJ conclusion that if Kirrin Medcalf had not written, this would not have happened.

BC: My proposition 5 is that Medcalf made the SW complaint in response to encouragement by others to co-ordinate complaints to GCC to get them to take action against AB.

BC: KM on behalf of SW attended a mtg hosted by GCC in October, group of orgs headed by LGBT Consortium. Minutes here - Shaan Knan of SW encouraged people to write to GCC about "transphobic" tweets by AB.

BC: And later on STAG wall (SW Trans Advisory Group), both KM and SK members - SK says LGBAlliance formed, that Michelle Brewer of GCC had notified chambers, was asking for complaints before a meeting on the Monday.

BC: Note that ETJ found SK had misunderstood MB and MB was *not* encouraging, but, SK thought she was.

BC: Meanwhile KM had sent complaint - drafted 28/10 sent ?31/10. Para159ETJ - discussion re what GCC was doing notes that KM is the important complaint, that KM knew MB but didn't know GCC was a SW diversity champ.

BC: ETJ notes that KM was responding to SK prompts and that is what caused KM to review AB tweets and send the complaint to GCC.

BC: Reminder, drafting was 28/10 not sent to 31/10. Finding that KM had only been in SW job for 5 weeks & would have discussed with supervisor before sending the complaint.

BC: 6th point. One foreseeable reading of KM complaint is implied threat that SW would terminate relationship with GCC. If we look at the complaint itself.

BC: Addressed to the joint heads of chambers and sent to a number of the clerks. Says, contacting as head of trans inclusion at SW. There is no dispute that KM was acting in capacity for SW.

BC: Says, writing to raise concerns re AB *and her association with yourselves* GCC.
BC: Gives AB Twitter name, says she has been transphobic-tweeting, gives example tweets. So it is clear what KM is describing as 'transphobic'.

BC: Which is, anything that fails to describe TW as W - says 'male' or 'men' for example; and, anything that criticises SW.
BC: Claims that when AB says she is a walking hate crime" that is a threat, not AB describing other's views.

BC: "Transphobic" to say TW have male privilege. Talking of 'trans extremism' at SW is "transphobic". When it comes to Morgan Page - says "transphobic" to say "man" - tho in fact AB had said 'male bodied'.

BC: KM is labelling all AB's statements of her protected beliefs inc on SW as "transphobic".

BC: KM also says "hate group" about organisation with gender-critical views.

BC: KM goes on to say GCC have always been trans allies and SW are grateful, but, if GCC continue to associate with AB bcs her views and attacks on SW & staff, that that put SW in a "difficult position" re future of relationship.

BC: So - KM repeatedly calls gender critical beliefs hateful and transphobic. And, on any objective reading of that complaint it is a more than reasonable interpretation that it's aimed at GCC relationships with AB, and with SW.

BC: Says, relationship with AB is going to damage GCC relationship with SW.
BC: I am not stating KM actually *meant* to say that; am saying that it was reasonable and foreseeable that that interpretation would be read. And, that GCC would take action.

BC: Complaint is expressly asking GCC to *do something* even if no specific action is stated. "Do what is right".

BC: If we look at ETJ - finding says that requiring the termination of relationship with AB is certainly one possible reading of complaint. Possibility of this is mentioned in relation to SK evidence and also that of SJS for GCC.

BC: My 7th proposition. it's that KM made the complaint because of AB beliefs, in the strict sense - fundamental objection to them, and to the experssion of them, and that KM intended some detrimental consequence to result.

BC: ETJ para 379, finding that KM was writing to protest about AB views, and (perhaps) seeking GCC to publicly dissociate from her views.
BC: I submit, no possible reading of "AB views" other than her protected belief.

BC: KM objected to AB views that TWANW, and to AB views on SW campaigning.
BC: Discussion in ETJ on term "TERF" and whether offensive; says KM thought it could not be offensive, bcs used by trans ppl and they are a minority.

BC: it is clear KM thought any statement that TW are not women should never be expressed and is transphobic and hateful.

BC: I think no dispute on point that thinking gender-critical beliefs are inherently hateful is in itself discriminatory - Miller - won't discuss in detail as I think no dispute, but may come back in closing if necessary.

BC: It was entirely foreseeable that one possible outcome of the complaint was that it would result in action, discriminatory action, vs AB.

BC: It was entirely foreseeable that one possible outcome of the complaint was that it would result in action, discriminatory action, vs AB.

BC: In fact I go further, it is clear from the complaint that *some* action was sought, even if not the specific action(s) GCC took.

BC: And in upholding the complaint GCC directly disriminated bcs of AB protected belief, and, were influenced to do so by their membership of SW diversity champions scheme.

BC: If we look at para 237 ETJ. Finding re AB complaint on detriment 4, which relates to the upholding of the SW complaint.

BC: One primary fact here is that Maya Sikand had shown hostility to AB tweets re SW, and seemed to be influenced by the DivChamp status - even tho KM had not mentioned it.

BC: para 376 ETJ - finds the status as SW DivChamp was not the *basis* of the complaint, but that consideration of SW as an ally led to use of social media policy breach tactic tho again KM had not mentioned.

BC: The SW DivChamp status was not used to *make* the complaint, but, it influenced GCC during their consideration of it, affected how GCC went about handling it. DivChamp scheme influences members to align with SW values.

BC: End of my first section - is court amenable to a short break?
J: Yes; we will break for 10 minutes and restart at 11:57
[BREAK]