Thread by @tribunaltweets

Welcome to part 2 of the first morning in the case of Allison Bailey's hearing at Employment Appeal Tribunal vs Stonewall.

Part 1 of the morning hearing is here

https://x.com/tribunaltweets/status/1790309699817984173

[Hearing is resuming]

BC: It's not quite clear whether the issue in dispute today is re the meaning of S111, or, about the ETJ original dismissing of the claim. Given the uncertainty I'm going to consider both with some care.

BC: I disagree with SW that both speak for themselves - I think they need some unpicking. Have addressed in detail in my skeleton. But if we start at p367ETJ. This summarises the basis of the complaint but not reason for dismission.

BC: ETJ then goes on to consider KM motives for the complaint; considered KM own evidence, had said fear of hostile encounters at GCC if meetings there. ETJ finds it implausible that KM motive was the meetings; complaint wd have said so if so.l

BC: ETJ finds KM wrote to *protest* AB views, but without seeking specific consequence by GCC except perhaps dissociation from AB views; that perhaps just a protest.

BC: Not clear how that forms basis for ET dismissing the cause-or-induce claim, but, they devote some time to it so it must be a part of it.

BC: ETJ accepts that KM did not know re the DivChamp membership - though, it was mentioned in the Sunday Times article - but, ETJ does find KM must have discussed complaint with supervisor.

BC: ETJ finds KM complaint a protest, perhaps seeking GCC denial / dissociation from views.

BC: But these are not adequate reasons for dismissing the S111 claim.

BC: 373ETJ discusses various ways a S111 tort can occur. They emphasise that no mention of DivChamp in the KM complaint, but not why that matters - but later it seems that ET thought mention of DivChamp would be a necessary fact for S111 breach to have happened.

BC: ETJ also notes no specific action sought - which we agree with. Then goes on to say "if there were some inducement" - and then I think is saying what tribunal would have been looking for, to find for a breach.

BC: Seem to be looking for an express or implied threat, to exploit the DivChamp scheme or threa to end it, or, threat of "brand damage" to GCC.

BC: Tribunal then returns to 1) absence of ref to DivChamp in KM complaint 2) KM not knowing of it is discussed, ETJ finds did not know so ET was presumably looking for exploitation of scheme and did not find it.

BC: But we do see the ET thinking that leverage of DivChamp scheme would have been significant. So then it considers whether GCC affected by it, but ETJ finds not exactly - was about viewing SW as an ally.

BC: ETJ also notes that KM did not know about Bar Standards process.
BC: On a fair reading, in my submission, the ETJ point is that KM did not actively use DivChamp as leverage, so did GCC feel leveraged and they found no, but did feel allyship and look for flaws in AB tweets.

BC: So what did ET think it needed to find? That there needed to be subjective intention by SW to leverage the DivChamp, or, that GCC felt that leverage. This must be why ET spent the time on describing these arguments.

BC: So ET is saying, re inducing - was there leverage intended, and/or was there leverage perceived?

BC: And re causing - was the KM email an attempt to cause, was it the cause; and they found ultimately no, it was a protest.
BC: ETJ says KM was "the occasion of the report, no more".

BC: But that's all they say; they don't set out what the test they are applying is. I submit, can only be 1 of 2 things.

BC: first is that "occasion not cause" means there was a later break in causation chain, or that too distant from GCC action. Second is that ET is looking for some kind of directness of cause that it does not see.

[Am not sure I have this point down quite right]

BC: We are not considering a "reason" test here, though. We are considering a "causing", not a "because of".
J: There are chicken and egg situations here - I need to hear your third section to evaluate this one?
BC: Yes indeed.

BC: But meanwhile a reading of "occasion" is that what ET is getting at is that they want to see a cause and do not.
J: "Does it cause GCC to do more than consider" is perhaps the Q? and ET found not?:

BC: That argument is then that It would be necessary for B - GCC - to adopt the same thinking as A - SW - but that would require an interpretation of S111 as meaning a degree of agreement between what A says and what B does.

J: Is that not pretty much the definition of causation? If I complained to your chambers about you & a female colleague and they treated the 2 of you differently, sex discrimination - I, my complaint, would not have *caused* that. Is that what ETJ means here?

BC: [am missing the thread of argument on this]
BC: On Q of whether S111 requires mapping of thought processes across A and B, my sub is going to be that no, there is no sensible way to define that coincidence of thought processes so as to have a clear test.

BC: Arg will be that complaint by A (bcs of protected characteristic) to B who then discriminates v C on basis of that same PC is a) exactly what happened here and b) precisely what S111 sets out to prevent.

J: So your argument is, both acted on basis of hostility to same protected characteristic.
BC: Exactly so.

BC: Having *different* hostile basis to the same characteristics would not be relevant difference here; it's the same hostility.

BC: So - it's not quite clear how ETJ arrived at decision to refuse the S111 claim. "Just a protest", but the actual reason why that obviates S111 isn't made clear.

BC: And the influence (exerted and/or felt) of the DivChamp scheme is another element; and finally any direct causation.

BC: Statutory interpretation of course is that words have ordinary interpretation - don't plan to discuss in any detail.

BC: So as to statutory purposes. S111 itself and its context in EA2010 re eliminating the evil of discrimination in the areas it covers. So; the purpose of S111 must be to contribute to that elimination by proscribing the bringing-about of such discrimination.

BC: So in that context a wide meaning not a narrow/restricted one is appropriate. See authorities for this point [some case citations]

BC: I submit that the same principle to take a wide scope applies to S111; employment legislation is aimed at elimination of discrimination.

BC: [another case citation] this one deals with a predecessor of S111, sex discrimination act re careers advice given to girls. Commission took enforcement action.

BC: Says they read "induce" as including both sticks and carrots, threats and promises, not just "inducements" as the latter.

BC: Goes on to discuss attempts to "procure" - again says must interpret widely.

J: Says "bring about" - that Act did not mention "cause"?
BC: No, the language was induce/instruct/procure then but "cause" came in I think in Disability Discrimination Act though.

BC: The various Acts covered different areas - DDA didn't cover employment - but there was something of a mish-mash of terms before the EA2010. So we should assume S111 is adopting the whole range.

J: What is difference between inducing and causing?
BC: I would say there's a difference in specificity of aim - "cause" is perhaps more definite, removes any subjectivity.

J: So I could "cause" by accident, but not "induce"?
BC: Well you might. Suppose A dislikes C bcs protected characteristic, but doesn't care what B does, and makes a false complaint - that wd be inducement.

BC: Inducement requires some element of intent, but causation does not.

J: So if I say I don't like Cornish nationalism & that's protected belief, and B sacks all staff with that view, I have caused - but not induced?
BC: Yes I accept that.

BC: But I add that the three terms are not entirely siloed. Parliament must have intended the terms to have their normal overlapping meanings.

BC: But to resume - am pointing to the need to have wide interpretation. I have a couple more points on that. If we look at S111 itself.

BC: subSec 4 - notes that "inducement" can be direct or indirect - again points to wide meaning needed. SubSec 8 - talks of "tempting".

BC: SubSec5 & 6 - clear that the liability is, A is liable for B's conduct and C's own. So in this case - A liable not just for the *finding* re the complaint but also for the *process* of the complaint.

BC: If A intends that B should make a disciplinary finding against C *but* B does not make that finding, A is still liable for having *tried* to cause it.

BC: It cannot possibly matter that B does not do exactly what A intended.
BC: If A hopes that B will do contravention 1, but instead B does contravention 2. Doesn't matter - A still tried to obtain contravention 1 and is liable for that and for *all* the detriment C suffers.

BC: That is the scope of how the legislation is intended to operate. So - it cannot be the case that it's a defence that A and B did not think exactly the same things.

BC: Terms should have their natural and ordinary meanings.

BC: My 4th element is going to be what is the required mental element. I have already addressed you on the issue of "cause". Aside from the requirement of a basic mental element that tracks the contravention, there is no specific mental element needed.

BC: For "induce" I accept that there is a need for a mental intent to bring about a general result - but not, I say, to have a very specific aim in mind.

BC: Those are the mental elements inherent in the terms themselves. I've already said we accept the mental element that is implied, the ETJ at 360 is reflecting my submissions to them on that, which you can consider.

BC: To spell out - when causing indirect discrimination it wd be eg enough for A to do something that causes B to take a discriminatory action; and no need for A to know or intend that there wd be discrimination, or for B to know either.

But for direct discrimination, it's necessary for both A and B to be seeking it.

BC: Looking at SW sub, it appears to be common ground that there is no need for additional mental element.

BC: Is this a good point to pause for lunch?
J: How long do you have left?
BC: Perhaps 20 minutes?
J: OK let's adjourn now.
[LUNCH BREAK]