Thread by @tribunaltweets

Good morning. We are continuing live-tweeting Allison Bailey's case at the Employment Appeal Tribunal.
10.30am expected start.
Details about the case and previous days tweets from the Employment Appeal tribunal can be found here:
tribunaltweets.substack.com/p/allison-bail…

Abbreviations:
AB: Allison Bailey, claimant
BC: Ben Cooper QC, barrister for AB
SW = Stonewall Equality Limited (respondent 1)
IO = Ijeoma Omambala QC, barrister for SW
LR = Laura Rankin, solicitor for Stonewall

SW = Stonewall
GCC = Garden Court Chambers
STAG = Stonewall Trans Advisory Group
TRWG or TWG = Trans Rights Working Group at Garden Court
TELI = Trans Equality Legal Initiative
TON = Trans Organisations Network
TR = Trans Rights
HOC = Head of Chambers

WS = Witness Statement
BSB = Bar Standards Board
EA = Equality Act 2010
SM – Social Media

Stonewall staff:
SK = Shaan Knan - Trans Organisations Network Officer LGBT Consortium 2017
KM = Kirrin Medcalf - Head of Trans Inclusion Stonewall 24.9.19

GCC members/staff:
MB = Michelle Brewer, a Member of GCC (since left)
MHL = Mia Hakl-Law, Director of Human Resources & Operations at GCC

J = Judge
C = Claimant (Allison Bailey)
R = Respondent (Stonewall)
ET or T = Employment Tribunal
EAT = Employment Appeal Tribunal

Some more info about today's case:

Allison Bailey, a black lesbian barrister, sued her chambers (Garden Court Chambers), members of her chambers and Stonewall, a UK charity in the Central London Employment Tribunal.

Ms Bailey helped to set up a new organisation for lesbian, gay and bisexual people, the LGB Alliance, to provide an alternative to Stonewall. Stonewall allegedly had her investigated by her chambers.

Ms Bailey prevailed against her chambers in the original employment tribunal. See our previous coverage of the tribunal and related matters here: Allison Bailey vs GCC Omnibus.

The tribunal found that Bailey was discriminated against by senior colleagues from Garden Court Chambers over gender-critical comments she made on social media.

Allison Bailey was victimised when Garden Court Chambers published a statement that she was under investigation after it received a complaint from Stonewall, the UK’s most prominent LGBT charity.

The Employment Tribunal also found that the claim that Stonewall had instructed, induced or caused, or attempted to induce or cause detriment to the claimant was not successful.

Ms Bailey is appealing the tribunal’s decision re Stonewall. The case will be heard in the Central London Employment Tribunal on 14 & 15 May 2024.

AB's Appellant skeleton argument:

Stonewall's skeleton argument:

EAT bundle: allisonbailey.co.uk/wp-content/upl…
allisonbailey.co.uk/wp-content/upl…
allisonbailey.co.uk/wp-content/upl…

We are in the waiting room now.

IO: good morning J:
wanted to say 1 r 2 things about yesterday where i left off
subs reflected in Ts jugement are those in terms of causation, which were made by the C and in repect of which the R did not take issue

when i said yesterday - in response to a q from you J - that was a response to the Q.
t is my sub that proper reading of meaning of Cause in subsection 2 - it means to bring about.. not to bring any additional words into that subsection

not nec to bring in any words about any mental ailment.
section 112 offers some support - parliamentary craftspeople made express the mental element required - so in my sub - where a mental element is required, it will be inserted - that is why i am bolstered in my submission

IO: bc necessary relationship of proximity are established by subsection 7..
Agree with BC in this - a unique statutory tort.
in context of this case , Rs submission that the ET was required to identify the basic contravention in play

- direct discrimination - what it was that A did to B. ET found A made a complaint to B - we don't disagree. That complaint was within the scope of its relationship with GCC.
did what SW do , cause the discrimination

T must as, as a matter of fact whether what SW did brought about GCC's basic contravention
J: yes, basic contravention includes bc of
If i make a complaint about someone in a relationship - i say i think this person has behaved in a threatening manner

If B investigates and finds them guilty - discriminates...you look at the complaint - and say where complaint might be occasion - did it actually cause the action?

IO: Y. I say ET found correctly. It was open to find that A did not do anything to cause B. Decision making process by GCC - 2 imp things to remember in real to basic contravention

IO: imp to identify basic contravention found by the ET - it was upholding of complaint.
T did not find investigation into complaint per se was discriminatory - that would have been difficult in light of C's response at the time that complaints that were made had to be addressed

only 2 of 12 complaints by KM were upheld.
As is said in Rs answer - basis of Cs appeal wrongly equates the investigation of a complaint with the contravention found by the ET. mere investigation is not a contravention

J: so basic contravention had 2 limbs
IO: Y
J: the posting of something during the process
IO: posting of tweets that GCC found likely to be in contravention of BSB code and Barristers code of conduct

J: but I am looking at where GCC said to have gone wrong..
IO: - detriments (2)?) and 4..
you see at para 320, what detriment 4 is, as far as T is concerned. investigation outcome - GCC upholding SW complaint - that 2 tweets likely to contravene BSB - that is the discrimination

IO: where GCC goes wrong. The T says in paras...322 - we see their approach to what C did and how they resolved that matter
J: Y
IO: criticisms in course of that para - i don't mean to dismiss them but they are essentially procedural

IO: T says we can understand C's greivance.
in next para - the analyse 2nd of tweets, considering whether or not this is a detriment - they say that her explanation had not been heeded reasonable.
IO: next analysis of why GCC did what they did and how they did it

IO: next, summary of complaints made by the C. T invited by C to see that outcome was...missed this
next, see a rehearsal of GCCs response
then Ts discussion and analysis.
there that the "bc of" material is deployed by the T

U see that it relates to the intervention of someone whose views were opposed to the C - suggested to the T that those views influenced this decision.
further down - in relation to investigator MS, T says, she seems to have been influenced by being a Dchamp

IO: though KM's letter made no mention of this.
Can view other activities of other members of GCC - contributes.
J: so t's finding is that whilst KM started this ball rolling, he didn't' bring about the prejudiced analysis that was the detriment
IO: indeed

IO: i should address what has been said on behalf of C - it was said reasonably foreseeable that outcome of KMS complaint that it might lead to action against C and therefore to detriment.
There were a number of significant intervening events btw KM complaint and GCC actions

so i dispute on behalf of R that Rs; complaint would be upheld in whole or half, just bc complaint was made.
GCC was entitled to consider complaint made to it and to decide what to do about it - outcome was not foreseeable. a number of possibilities

GCC could have ignored, upheld part or whole.
J:..
IO: I would dispute that the particular out come was reasonably foreseeable - it was one of many
Do i do take issue with suggestion that having made this complaint it was reasonably foreseeable that part would be upheld

J: BC relies on some terms in which complaint is expressed
IO: Y
J: for GCC to continue associating with ...(from SW letter0. I trust that you will do what is right" this may be the real thrust of argument. KM doesn't say what he wants done but makes clear that he wants somethi

something to do done, failing which SW relationship in jeapordy with SW. SW wants something to be done and reasonable that GCC expected to do something
IO: What KM does is submit a complaint - to whatever processes GCC choose to put in place - he is articulating the concerns

which lead him to make the complaint.
In terms of chambers relationship - it is described -
"AB's actions threatens positive relationship" (with SW)
KM says GCC actions in conflict with this relationship

IO: this is not threatening in any respect - doesnt relate to relationship btw GCC and SW via the D Champ scheme which s obvs the prism through which any liability must be viewed
J: T made finding that KM didn't know about that
IO: they did

IO: they also found - that KM did not intend any particular action. that he wrote wearing his advocates hat as a protest, he was entitled to do.
was for GCC to consider his complaint and make a decision abt what it was going to do abt it

IO: i say in that process, not reasonable to expect that GCC would have committed a basic contravention.
If i may, a barrister continuing to target SW staff and attacking trans rights, it would have made relationship of SWW and GCC difficult.
clearly if KMs description

of his concerns - he says safety of SW staff and partic SM attacks on a member of staff at the time - those are legitimate concerns. do not require discriminatory action
T has considered these and made the right findings. no reason to go over them

IO: i think that is really all i propose to say in relation to subsection 2. already addressed as far as i can on subsection 3.
2 further short subs in relation to approach:
J: Y
IO: language of provisions. BC referred to word "influence" in terms of what was required

IO: the statute does not use that word. a range of different ways in which ancillary conduct may be committed
lastly, question of disposal - suggested there is only 1 poss conclusion that this T could draw -

IO: my sub is that there is no material error of law that could have affected the result given its findings. T applied a test that would be more rigorous as against SW and the claim failed. so applying a lesser test, the C must still fail

if that does not convince, this court is not in a position to conclude what the outcome might have been.
I invite you to limit scope by defining issues specifically for ET to address - T heard lots of ev and considered it all rigorously and carefully

IO: those are my submissions
J: v helpful. thank you. in the end it depends v much on what I find - one poss outcome
it may be necessary to have further subs
J: your subs on approach to inducement -

J: BC sets out facts that are sufficient for C to succeed.
if i accept they found facts abcd, then it is perverse for the claim to fail.
if in the end the found facts mean 1 party has to win, in the end the inducement part is similar
(reads v quickly)

J: BC is making an appeal to logic
IO: Y
BC: what i argued is that this is not an improper attempt to re argue facts
J: u say the four d facts deliver only 1 result
BC: Yes

BC: i say that on the Ts own findings, any other conclusion is perverse
BC: i have 5 more substantive areas to cover in my reply
1. extensive summary of part of my subs was used

BC: not clearly identified - those parts of my subs where those points were made - a number of diff possibilities as to the different conclusions the T might find.
on the issues relevant to this appeal - we said that if the T found GCC had committed a basic contravention -

then but for causation, KM making the complaint bc of Cs beliefs that would be sufficient.
BC: 1st diff issue - alternative case mad that if no basic contravention - nonetheless, KMs complaint was an attempt to induce

BC: 2nd other issue i was adressing was whether KM was made within scope of service relationship btw Sw and GCC - it was a point that SW was taking - i was making point that should examine that perspective from view of GCC rather than SW

as to who knew what about Dchamp scheme.
We argued that KM must have known about GCC membership of Dchamp - not found by T.
3rdly - other actions by SW attempts to induce a contravention - membership of Dchamp in general was an attempt to do so

BC: imp point for this appeal - paras of Ts reasons are expressly dealing with case in respect of KMs complaint that there was. it is no answer to say it was addressing these points below. if IO is right, what it reinforces is that T has not clearly thought through legal factual

Q's we need to
BC: Next, whether T accepted that KMs reasons for writing - "safety". I say - classic different weighing of ev - his ev was implausible. KM says complaint about "safety of staff". GCC say this is not reasonable
some lines later: KM does attend a meeting at GCC

BC: but on other hand if mitigation of risk was his purpose, that was not visible to anyone.
ultimately rejecting that KM's complaint was about safety concerns.That he made complaint to protest about Cs beliefs with no specific aim abt safety save perhaps public denial of

association with Cs beliefs.
BC: are 3. abt finding of protest. IO triumphantly points to this as if it were a positive finding. it is q obvious that writing to protest is not a mutually exclusive thing set against causing or inducing discrimination

BC: Important to remember that T found KM was writing to protest the pc of C.
in relation to any other pc we wouldn't be having this debate:
eg A writes, would like to protest about your barrister tweeting about his disgusting disability. If B goes on to discriminate

on those characteristics, would we be splitting hairs about concerns of A?
Protest is perfectly capable of inducing or causing unlawful behaviour.

BC: IO didn't really answer what test the T were applying. then pointed to findings of a number of interventions that led to that discrimination.
Looking at this instructive as to how unworkable a test of causation would be if it was treated as a precise form of prejudice that

is applied.
BC: all people who intervened were from GCC - in the chain of causation then - B has discriminated - B has followed a mental process which leads it to discriminate. para 327 where IO focussed

BC: if I could take you there - overarching point i make is that when look at what T found about 3 or 4 individuals who made interventions - T found that those ppple and therefore GCC were materially influenced by general hostility to the Cs beliefs bc they were on the other side

of that debate:
people are
Stephanie Harris - they say what she did to contribute to outcome - reads...it suggests it was her views that influenced this decision. ..T is saying that tgenderal hostility to Cs beliefs that influenced her to this outcome

BC: they then go to Ms Sikand - T found that bc was a SW ally - this informed her sense that there must be some breach of duties. Also Join Hoc's of GCC - JK and LT..look at para 315..findings on detriment - tweets sent out by GCC after launch of LGBA -

Sentence that begins "faced with a twitter storm on GI...they picked sides"
T concluded that GCC "were opposed to"C.
When T then concludes that from these matters that C's GC beliefs significantly influenced GCC's finding.

BC: T is saying that bc of GCCs general opposition to the Cs beliefs, they have been materially influenced by that to uphold SWs complaint about Cs criticism of SW.
Stripping it right back:
T has found KM wrote complaint to protest about Cs'beliefs

BC: what we can see is that unequivocally that his complaint was expressly about general opposition to Cs belief, in particular opposition to what she thought and said about SW. T also found GCC in response to that complaint upheld it in part bc they were influenced

in part by the same things - in partic Cs criticisms of SW.
BC: r we really saying that in order to show causation that we have to go further than that? to show precise form that the mental process on the part of B took in order to inject prejudicial element?

BC: inevitably Bs processes as an independent actor are bound to differ somewhat from thought processes of : A and B share a prejudice. Bs prejudice is pre existing. A complains to B bc of that prejudice. B then upholds complaint bc of preexistingA.eg

prejudice.
J: if we say, B was about to do something detrimental to C and the A say, go ahead - would not find that A was responsible.
BC: yes. But as far as remoteness is concerned, basic elements for causation are reasonable - reasonable foreseeable that if A protests about

Cs beliefs to B that B might forseeably investigate and uphold that complaint
J: you say the touchtone is reasonable forseeability
BC: Y. but also natural consequence.

BC: IO rightly recognises that both Rs took no issue with our submission that right to apply (missed this)
IO is changing SWs position. it shows that it is enough for purposes of S111, that A does what it does bc of PCs.
in a sense it doesn't matter, on any view it is made out

BC: IO is arguing for a more stringent test than i say applies as to a test for remoteness. Where she ends up that causation is a strict liability tort - means that this appeal is a test of remoteness as opposed to any mental element

BC: issue 4 is - if IO is right as to the test - that i am not sure she is articulating - that is not something that the T has addressed clearly in its reasons and not something that was put to them that they should address by SW

BC: If I alright, I say it is clear . If IO is right, I say that it is not clear and we would need to go back and further argue
BC: 5th area. IO went back to some of Ts finding about salience of relationship of GCC and SW.
I wanted to emphasise I don't understand

that it is a requirement for liability that the relationship is salient -
what i understand IO to be saying, to reinforce argument that SW didn't cause GCC thought processes. this takes matters no further.

BC: could i have a moment to make sure nothing I've missed.
BC: thank you that's all
J: i will reserve judgement. Will try not to keep you waiting too long. EAT will be in touch when there is a draft. IO and BC I am very grateful for your clear arguments and to the legal teams

J: I will rise.

Judge has left the court.

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