Thread by @tribunaltweets

Good afternoon. We are continuing live-tweeting Allison Bailey's case at the Employment Appeal Tribunal.

Coverage of the morning sessions is here

and here
archive.is/nJ3J7
archive.is/ITjWD

Abbreviations
J: Judge, Mr Justice Bourne
AB or C: Allison Bailey, claimant
BC: Ben Cooper KC, barrister for AB
SW or R: Stonewall, respondent
IO: Ijeoma Omambala KC, barrister for SW
GCC: Garden Court Chambers, AB's Chambers at the time of the events in the case

BC I was about to conclude my 4th point - further reasons why Parliament couldn't need to require additional elements. Where Parliament does ask for specific terms it says so in the EA. So distinction between cause - by using this term it must be taken to have done so deliberatel

BC Is general prohibition on A re B. Needs to be a relevant relationship.

J Might have expected that filter to say anyone in a relationship with C. Having relationship with B is slightly odd.

BC It's not - if A in relationship with C, and A takes action in detriment to C, that is covered by primary. One of control mechanisms is the relationship. In other places authorities have said is relevant if discrimination as probable outcome is in scope of party's knowledge.

Would severely undermine s111 if it meant that within a context the independent actor doesn't do exactly what A wants, or carries out different actions from what A wants, B could escape liability

BC ETJ explores relationship as liability for inducing - the carrot or stick.
5th and final point - causing a contravention. It is helpful to look at authorities re causation of damage. General approach is informative as to how to identify test of legal causation.

BC Most useful case [cites EAT/missed] which involved a bad reference given as act of discrimination/victimisation and led to new employer withdrawing offer. Q was, did independent act by 2nd employer break causation link of liability of 1st employer.

BC [reads] The approach is to seek as far as possible to confine level of causation to be decided by fact rather than distance. Tribunal decided re bad reference it was evidently foreseeable that withdrawal of offer might occur.

BC Comparison with our case. Whole purpose is to prevent within the EA sphere to prevent a person doing something which will discriminate against another.

On facts of this case - making of a complaint is like giving a reference in Baltimore [sp?]

BC Where that complaint is about the protected characteristic and beliefs, it can't be said to be too remote or unconnected. Policy of the legislation, I advance that there are core control mechanisms: a relevant relationship; need to match subjective element of characteristic;

and what results to be a reasonably foreseeable consequence. Rhetorically, what basis consistent with legislation can there be that A with PC does something that causes B to discriminate against B and there thought processes have to march with each other.

That would allow escape if B takes actions as a result of A because B has a different view of the reasons than A has. If A does something because of a pc, say a passing racist comment, A wouldn't be liable to action by B. A is liable because of the context of the comment here.

BC KM was writing a complaint in the middle of a twitter storm, complains in context of AB's protected characteristics and asks GCC to take action in this context. Ingredients for causing contravention:
A acts cos of pc, B acts because of A's action;

and B takes action which discriminates against C. On ETJ's own findings, KM took action because KM wanted GCC to take action against AB because of AB's beliefs. That is enough to constitute intent under s111 and is enough for the claimant to get home.

IO In my skeleton argument, R says what you have heard is inadmissible attempt to appeal tribunal decision. No misdirection in law, no basis to appeal ET or its decision.
The R starting point - law cannot be applied in a vacuum or until facts are ascertained.

IO The ET had before it the evidence to reach the conclusions that it did. Filings on behalf of SW in the bundle: a description of the nature of the DivChamp programme and relationship between SW and GCC.

IO [refers to bundle] There is a description of what is and is not within compass of DivChamp. R sets out its position on C's case. R position re relation with KM and reasons why he took the actions he did.
In C's opening argument case against SW was SW instructed/caused

discrimination agst C due to her protected beliefs. In C closing submissions she invited Tribunal to look at relationship SW/GCC as falling within s111 - eg service provider/client. C submission was that correct approach was that GCC membership of DivChamp was capable of

affecting actions re SW. C said DivChamp scheme was intended to give SW significant influence in how its members deal. C said that KM at round table meeting was told they should influence GCC into taking action.

IO C emphasised the lack of credibility of KM, and his evidence; the extent to which KM discussed with others before he sent his correspondence; the extent to which KM was aware of relationship (DivChamp between SW and GCC. C said KM intended to exert influence over GCC re scheme

IO ET is responding to C in its judgment and reasons. The way the case was put was a full throttle assault on the credibility of KM. ET didn't accept C's claims.

ETJ findings c SW and its organisation. This is a summary of arrangements for GCC DivChamp membership.

Declared aim of scheme was to develop inclusive workspaces. ETJ makes findings re how scheme operated between GCC/SW: ET concluded contact between SW and GCC was minimal and didn't impact greatly on GCC behaviour.

IO ETJ, take you through findings re investigation process. An investigation re AB's social media posts was in process before KM's complaint. Task of compiling complaints fell to Maya Sikand - all put in place before KM complaint.

IO MS received messages from website which constituted the complaints. At beginning of ET findings of fact re SW complaint, the ET summarised KM's complaint. It was C's case that Michelle Brewer at GCC had colluded with R re the complaints.

IO [still reading from bundle] The ET's findings re Shaan Knan to use the Stag wall to reach people to complain about C. Re KM's knowledge re GCC membership of DivChamp: KM asserted he did not know of GCC membership and ET found that plausible in light of large number of members

ET rejected C's view that KM knew GCC was a member. ET found that KM's complaint was sent to Maya Sikand [MS]. Complaint that KM made of C's tweet was of misgendering rather than allegation of coercion.

MS wrote to C for response to SW complaint.

IO C responded that SW complaint was act of discrimination including on basis of her beliefs and her sexual orientation. And attempts to interfere with her rights under Art 8 & 9 and her involvement in setting up LGB Alliance.

IO MS drafted a report from Heads of GCC for them to edit: SW and particularly KM weren't involved in this.

Conclusions of ET re protected beliefs. No challenge there.

ET findings about the detriments alleged re investigation outcome: ET was invited to hold that deficiencies were influenced by prejudice towards C's beliefs. ET are looking at GCC process. Stephanie Harrison contested initial findings and milder conclusion reached by investigator

IO [missed]
C claimed that GCC allowed SW to direct its complaints process. ETJ: no evidence that SW directed GCC investigation process, and SW couldn't get GCC change its employment process.

IO The theme I identify is there is no evidence to support what the C said about this.

[reads] ET said that to say SW directed the process is a conspiracy theory.

ET starting point is the relevant relationship; the self-direction of mental element required

IO it is not sufficient to say that a person had the opportunity to do something. It was on the C to prove her case not on the R.

ET had sharply in focus the C's allegations and conduct she relied on.

Individuals may have had wishes re how GCC might conduct itself but SW itself said and did nothing here.

ET considered purpose of KM's complaint: they say it is obscure what KM wanted GCC to do. ET acknowledge C's reading is one interpretation.

But ET take on board KM's concerns c safety of staff and record KM's evidence re the reasons for the view he took. ET are sceptical about what he did but don't reject his account of what and why he did what he did.

J Isn't that in the sentence at the end? Re access to female toilets.

IO He said more than just access to female toilets.

J I will have to look at that. Did the ET find it implausible re safety concerns about access to female toilet.

IO You will need to form a view about that.

IO KM agreed that he didn't give details of his concerns, but he thought GCC would get back to him re this. ET thought it implausible that it was just about access to female toilets. But I find that that is an acceptable reading.

IO The ET accepted that KM writing to protest about C's views didn't amount to a basic contravention.

KM said he didn't read the Sunday Times, hadn't seen the article. ET records KM's reasons for delay in sending the email, and note there was no follow up to complaint by anyone.

IO ET concluded that KM's email was just a complaint and didn't expect any follow up. That might not be your conclusion but it was their conclusion and it is a reasonable one.

The ET found there was no inducement from SW. ET says if there was inducement it was only in the heads of GCC. You can't rely on the mental processes of B.

J It's been agreed for today's purposes that you've got to intend to induce.

IO [refers to BC saying things that were weighing on GCC's minds] They weren't plucked out of the ether - they were relying on things that were evidence in the case.

The ET reviewed the agreement between SW/GCC and noted it didn't appear to include any provision re termination

IO ET can't be criticised for considering the argument and evidence. There seems to have been no threat by SW, just SW wanting to increase diversion, and not using DivChamp as leverage.

IO ET note there was concern re AB's media posts before KM's complaint.

ET note reaction to AB tweet no 10 was a result of reaction by GCC member and not SW/KM. KM didn't know about Bar Standards Council etc.

J What tests did ET apply? Mental element? Foreseeability?

IO Tests ET applied was a 'but for' analysis isn't sufficient - doesn't answer whether there was a cause. Need to look at further and beyond. When one looks at their reasoning re findings re detriment 4

ET decided there were a number of interventions after KM's complaint that were the cause. Those matters that happened as a matter of chronology were the considerations that informed its view. And that's proper and right.

For the purposes of 'causing', given its ordinary meaning is that an outcome is intended.

J Not sure I can come that far with you. My negligent driving may cause an accident but not intended. You invite me to read in 'intentionally cause'?

IO Yes if reading in is necessary.

J Starting from finding that the complaint is start of detriment. That gets the complainant off the ground.

IO Subsection 2 creates a strict liability - it doesn't matter what A does or doesn't intend.

J True

J For clarity. You are not agreeing that the mental element for SS 2 is the 'because of' test.

IO No. and that is why one has to look very carefully at how the section is constructed. There are controls re the relevant relationship - that must be the framework for causation.

IO There is not significant disagreement between the parties. But one can't rely on the purpose to create or adopt a different legislative scheme. We know from the legislation and code of practice around the EA, the purpose of the EA isn't singular.

It consolidates and replaces previous iterations. The code says an important purpose of the act is to unify legislation and consolidate existing law: prior to EA there was no facility to allow an individual to bring action against those with whom there was not direct relationship

IO Re BC's earlier assertion about what the wording of the legislation included. BC's argument is not consistent with the statute. Parliament would have said something more if they had meant something different.

IO It is very hot in here. Can we break?

J We have about 45 working minutes to go. Shall we break?

IO Yes please.

J We'll resume at 10.30 tomorrow. Assume arrangements for those on the online link will be the same as for today.

Court rises

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