Thread by @tribunaltweets2

The Appeal of Allison Bailey v Stonewall Equality Ltd starts at 1030 at the Royal Courts of Justice and will be live tweeted here.

The proceedings will also be live-streamed here:

youtube.com/@RoyalCourtsof…

Co-respondents are Garden Court Chambers, Rajiv Menon KC and Stephanie Harrison KC of GCC

The Panel are: Lord Justice Bean, Lord Justice Newey and Lady Justice Whipple

Key legal documents can be found here

tribunaltweets.substack.com/p/allison-bail…

Abbreviations for today's hearing:

AB - Allison Bailey KC Claimant
C - Claimant
RM - Rajiv Menon KC
SH - Stephanie Harrison KC
SW - Stonewall Equality Ltd
R or Rs - Respondent (s)
J - Judge (if unidentified which judge)
LB - Lord Justice Bean
LN - Lord Justice Newey

LW - Lady Justice Whipple
GCC - Garden Court Chambers
GI - Gender identity
WORIADS - Worthy of respect in a democratic society
SO - Sexual orientation
L and G - Lesbian and/or gay
ET - Employment tribunal
T - Transgender

Our live tweeting is not a verbatim transcript. We attempt to report as much of what we hear in court as possible. We make every effort to report accurately and do so in good faith. We make frequent use of abbreviations: see the Substack page if meaning is not obvious.
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We will correct any substantive inadvertent factual errors that are brought to our attention promptly. Our reporting is best understood when read as a whole.

tribunaltweets.substack.com

Further abbreviations:
BC - Ben Cooper KC, Barrister for Claimant Allison Bailey
PD - Peter Daily, Solicitor for Claimant
IO - Ijeoma Omambala KC - Barrister for Respondents

Waiting for proceedings to begin.

Proceedings have begun.

BC discussing arrangements.
BC - This appeal contains ingrediaents for liability under Equality Act S 111 which is located within the overall structure of Part 8 which suggests this is an ancillary.

BC - It makes it unlawful for person A to do
either instruct another to commit a basic contravention
or to cause another person to cause a basic contravention or to induce a basic contravention or attempt to cuase or induce a basic contravention. these are the four ways

BC - libility may arise. Pursuant to SS7 there must be a relationship between A and B in which A is in a position to commit a basic contravention in relation to B. This claim specificially relates to the igredients for causing a basic contravention under SS2 or inducing a BC

BC - under SS. Under this the Claimant is person C. The ET found that she holds GC beliefs as well as beliefs ab out damaging effects of Stonewall's view on these beliefs.

She was a practising barrister at GCC which under S11 is person B. GCC was in turn a member of SW

BC - Diversity Champion scheme which makes SW a Service provider to GCC pursuant to S1 of SS29 so SW was therefore in a position to commit a basic contravention in relation to GCC in relation to S7 and therefore Stonewall is Person A

J - confirming this is common ground
BC - 2019 (date) Kirin Metcalfe sent an email to GCC to protest C's beliefs and the various ways she had expressed those beliefs. In that complaint KM invited GCC to 'do what is right' and thanked them in advance for time and consideration

BC - on the issue. GCC duly considered and partialy upheld it and in doing so they discriminated against C on basis of her beliefs. And on ET findings but SW complaints GCC would not have commited that basic contravention. It's common ground that but for consideration alone..

BC - [missed] the question for this court is what are the additional ingredients . The ET did not explain what test it thought it was applying. As between parties there are now 3 alternatives proposed to this court.
1 the ET - what is required is an assessment of whether it is

BC - fair, reasonable or just to find SW liable but in my submission that formulation that prompts question of what ar ethe criteria by which Fair reasonalbe just are to be judged - the ET leaves it open ended
2 - in addition the suggestion that A's actions must be a direct not

BC - an indirect intervention but my question is - what are the criteria for it being direct or indirect intervention - what means that it's not direct. The fact that there's an intervening Basic contravention for which which B is liable cannot break the chain

BC - 3 which is my sub is correct is: If A's actions have all the characteristics have primary form of discrim or other prohibited conduct then by definition they will be actions of a kind which it is the purpose of the EA to prohibit within the field to which it applies so

BC - if those actions by A cause B to do a contravention in relation to C then it will follow that those are circs in which it is fair or reasonable to find A is liable and the intervening basic contravention ought not to be seen as breaking the chain of causation if respect of

BC - the primary act of A (GCC). Whichever solution on adopts one has to say it is the purpose of the legislation
J is there any authoritiy on that 'but for'
BC - this is the first case. Where the underlying primary cause is indirect discrim there is no additional requirement

BC - so it may be that in causing indirect discrim [missed]
J - give an example in RL
BC - if i am a supplier to a company B and company A says when you send your drivers i'd like them to be more than six feet tall bc i have high shelving and a tribunal finds that there may be

BC - ways around that then it's simply sufficient that A has caused this criteria to apply and this has an impact on women

It's not nec'y for hte court to decide finally what would be the ingredients of indirect discrimination
J - because our territory is direct discrim

BC - Yes.
J - You are looking for something with a wrongdoing flavour to it. There has to be something to get A into this position
BC - Yes - we have a clear way of identifying these on a basis which closely ties liability to the purpose of the statute.

BC - so in the case of finding a cause of direct discrim- it can be
A. does something because of a PC which is detrimental to C in some way plus B would not have discrim against C unless A had intervened
J - I've gone back to S13 - A does something bc of a PC which is

BC - Detrimental. The improper motivation doesn't have to be deliberate then B treats C in a way it wouldn't otherwise. There's no doubt that KM on behalf of SW sent the complaint because of C's protected beliefs - there's no doubt it was a detrimental action to C and

BC - less favourable than KM would have applied to someone who didn't have those beliefs.
J - it can be unintentional. It's factual that this happened
BC - Yes its a general principle of direct discrim law that you don't have to have that conscious intention to discriminate

BC - Refering to previous case: 'In every case we have to inquire why - but that's to be distinguished from case in which if someone was treated less favourably on racial grounds on why' - so you're looking for link to PC not for the ostensible motive for that

BC - The basis for the motivation may be subconscious it does not have to be conscious ( still referring to previous judgement ) - the central test is whether racial grounds had a significant influence on the outcome.

The question is not what is the consious motive of the

BC - discriminator, it's whether the protected characteristic had an influence at all on the actions of the discriminator
J - do you then say that operates on B to C level as it operates on the A to B level
BC - other way around - it's the same liability thread that runs throug

BC - the answer rests on 3 indisputable proppositions
1 that SW acting through KM acted because of PC of belief
2 that it acted in a way that was detrimental
3 that BUT FOR those actions, GCC would not have discrminated against C

BC - Primary focus is on whether ET got this right. Relevant faction findings of ET. In terms of background: the C was a barrister doing criminal defence work for GCC. SW is a large and widely respected charity: the 'widely respected' epithet is important to note in terms of some

BC - points taken against me. Many orgs had signed up to DC - so if it because relevant to argue that a complaint by SW might have an influence on an institution like GCC, SW status with that level of influence is a relevant factor. From C2015 SW switched focus to T issues

BC and set up Trans Advisory Group (STAG) and that caused tension with SW trad supporters, lesbians in partic. felt alienated when told it was transphobic to object to males in lesbian spaces. The C was one of those. GCC joined the Diversity Champ scheme.

BC - in 2018, cost 2.5L p/a. Lists 'benefits' of membership. Much of ET factfinding is not relevant to this appeal - immediate factual context is that on 22 Oct 2019 C sent a tweet in response to and in support of the launch of LGB Alliance. The terms of main tweet which

B - in reduced terms kicked of the issues which led to this case. 'This historic ...gender extremism is about to meet its match'. This generated a strong reaction on Twitter, some of which came to GCC and generated complaints through GCC website but they didn't then

BC include SW complaints. In following days there was discussion at GCC about what to do. One of the things GCC did on Oct 24 was to send out a reply tweet indicating that GCC were investigating complaints about C comments and was taking v seriously. ET found that this was

BC - one of the acts that was direct discrim by GCC and that was not induced by Stonewall. GCC also began an investigation into complaints sent via website which was to be conducted by MS {name} - she reached conclusion that there was nothing to answer to in complaints so far.

BC - ie she found nothing to investigate so that was the state of play when KM on behalf of SW made its complaint

1 factual finding in relation to C beliefs. Not only are C beliefs protected but none of relevant tweets or comms breached her prof duties as a barrister or

BC - justified any action against her. Not contentious. In addition to her core GC belief that sex is real and observable, C also held a set of beliefs about the severely detrimental effects of SW campaigning on this issue, particularly for women and lesbians eg denial of

BC - legitimacy of SSA and loss of SS spaces, and in relation to labelling of those who oppose SW as bigots and the succour that gave to ppl who sent abusive and threatening comms.

ET finding (not appealed) was that all those beliefs are protected under PC of belief in EA

J - you were going to focus on 4 key findings, is this still number on
BC - Yes. All the C beliefs are protected and all the ways she expressed those beliefs are protected because they were not objectively such as to justify any restriction on them.
2 - factual finding - the ET

BC - correctly directed itself that it should decide objectively whether the manner of expression of beliefs justified any restriction on C. So in respect of all tweets and other comms the ET noted that only 2 were taken forward with any sort of adverse finding, ET considered

BC - those 2 tweets and finds first that GCC didn't make their finding because of manifestation
J seeks clarity
BC - ET found that GCC partial discrimination was NOT on the grounds of manifestation ie that any of those comms 'crossed a line'
J - that's a funny way of putting it

BC - yes. Shall i go through the 2 tweets?
J - yes pls
BC - There had been a GRA consultation and that's the context. [Judges and BC looking at records of the tweets] BC - you will see that C was asked by GCC to provide an explanation of those 2 tweets to see if GCC though

BC - it was a reasonable way to express beliefs. C's explanation was that her understanding of term 'cotton ceiling' was a ref to women's underwear and the barrier that presented to trans-identified men who want to sleep with them and the related coercive effect . It relation to

BC - the other tweet - a response to SW post 'Trans women are women, no debate' and failure to condemn threats of abuse - she regarded that as making SW culpable for that sort of action. ET considered the tweets and GCC treatment of them and

BC - it's considering whether GCC treatment of the tweets was a reasonable approach as part of its fact-finding but also identifying the C explanation was a reasonable explanation - had GCC paid proper attention to it they should also have realised it was a reasonable explanation

BC - This relates to whether manifestation was relevant to discrimination - I don't understand that to be in dispute. All the beliefs and all the relevant expressions of those beliefs were protected under the EA

2. In relation to context in which KM wrote stonewall complaint.

BC - that was in response to specific encouragement to write to GCC because they (GCC) were considering formal action against her. On Wed 23 Oct meeting was held by a group of the trans organisation's network - a group of orgs that supported self-identification run by the

BC - LGBT consortium - chaired by someone who was an SW STAG member who organised it in his capacity as an employee of the LGBTC. He heard from Michelle Brewer of GCC that ppl who had conerns about C social media could sent a complaint to heads of GCC and they would be looking

BC - into it. At the meeting the community 'was encouraged to write to GCC - chambers have a meeting to decide on formal action' - and the ET found that was an accurate note of the meeting. Then a notice went on the 'STAG wall' and STAG facebook page that 'C supported LGBA

BC - continues quote 'and GCC has always been an ally - we're being encouraged to write to GCC heads - please write before the meeting on Monday'. The ET found that he was wrong in saying Michelle Telfer had 'encouraged' complaints.
KM sent complaint on Oct 31 but ET

BC - finds that it was completed on the 29/8 Oct. The ET clear findings are that KM of SW was prompted to sent the complaint by encouraging remarks from Sian Knap (sic) of the LBGT consortium. He must have understood that an investigation and formal action

BC - were underway/being considered. Not arguing that SK was doing things in a SW capacity, but that SW acted on things that he said. There is no doubt that KM was responding to encouragement ot complain because her views were 'transphobic' and he was doing so in knowledge

BC - that actions against her were being considered.
KM wrote the complaint
1 because of PC of belief
2 his intention was to protest to a perceived ally about C's PC of belief and legitimate expression
3 he explicity invited that perceivedally to consider and take some action

BC -
3 (cont) without a clear knowledge of what that precise action would be
It was ABOUT the C's PC of belief
'perceived ally' point - the invitation to take some action and the lack of a clear specific aim
There is a finding about his intentions - will take you to

BC - the terms of the complaint itself...[missed] KM himself was saying he anticipated some kind of action. He didn't expect GCC to do nothing with his complaint.
Par 60 p100: there is a finding as to KM views in relation to GC belief and Obj to self-ID. His position is that

BC - objecting to self-id is transphobic and hateful to trans ppl. That is a commonly held prejudice against ppl with GC beliefs, that they're guilty of transphobia and bigotry.

Miller V CoP is referenced.

[judges running through papers]
BC - case of Kathleen Stock and Sussex uni referenced wrt intolerance of GC views. Quotes: 'TW are men is an objective statement and not indicative of transphobia'

Refs judgement in Higgs: C had expression Christian and GC beliefs and was

BC - unlawfully dismissed by school. Refs to EHRC guidance on unfavourable stereotyping of certain groups: 'One partic type of discrim is putative acceptance of a stereotype and being significantly influenced by it - ie the perceived attributes of a group rather than the actions

BC - of an individual ie they may be influenced by stereotypes of a group whether or not those stereotypes are true. The view which KM had a C belief is preciely that sort of stereotype and precisely the sort of prejudiced or stereotype that was recognised in Miller and Higgs

BC that could give rise to discrimination
KM sent the email twice, to the website and to various GCC addresses. The substance was the same.
Quotes: 'Contacing u in my role of head of T inclusion at SW' - no doubt he was acting for SW - 'to raise concerns about C and relation to

BC - GCC. Consciousness and foreseeability aren't relevant but on the face of it he is objecting to GCC continuing its relationship with C. 'She has been making and RT's transphobic statements online' - set of examples all characterised by describing expression of

BC - C's protected beliefs as transphobic. Including complaint about her chairing a woman's place group. All of the complaints are because of C beliefs or expression of those beliefs. It doesn't matter what's going on in his head bc he is acting and making those complaints

BC - explicitly because of those beliefs and expression of them. [quotes from complaint again] 'for GCC to continuing assoc with C 'puts us in a diff position - the safety of our staff will be our priority - I trust you will do what is right]
BC I don't need to say that KM had

BC - any specific action in mind or that he intended GCC to take formal disciplinary action - what is clear is that plainly he did not intend NOTHING to happen

He expected GCC to spend time and attention and the case and 'do what is right' - so far as qny q of foreseeability -

BC - it is right to look at the objective meaning of the words that he chose to use. That was that for GCC to continuing assoc with the C put GCC in a difficult position with SW and that GCC should consider acting in respect of that. It's not essential to my case. What is

BC - essential is that he wrote the complaint because of C beliefs and expression, and that the complaint was plainly detrimental to C. It plainly invites some response from GCC which was liable to be detrimental to AB. On any view this was a complaint which was because of

BC - her PC of belief, it was a protest about that PC and it was made because KM was sharing his hostility to that PC of belief and expected action. These are sufficient in and of themselves to establish liability.

3 impact complaint had in respect of GCC conduct.
i) but for

BC -
the complaint GCC wouldn't have acted
ii) he was right that GCC shared his prejudice
iii) the complaint was received and considered by GCC in regard to membership of Diversity Champion Scheme

BC - In relation to primary or basic contravention itself - go back to 327 p 169 - findings of ET re criticism of the process itself.

Quotes: Stephanie Harrison also contested initial mild conclusion - had already demonstrated opposition to C's views. It's hard not to infer

BC - that her own hostility and prejudice informed GCC. Initial investigator (Maya Sickand) also now expressed some hostility - it's plain she is looking at it in light of membership of Diversity Champions Scheme. Names other GCC members expressing hostility. Quotes from

BC - findings of ET: that hostility and prejudice to GC views informed GCC decision-making. These findings led ET to conclude that this was an act by GCC of direct discrimination.

To draw together the effect of the core findings. If one reduces findings to their

BC - essentials then because of A (SW)'s prejudice against C's protected characteristic - A (SW) complainted to B (GCC) who he perceived as sharing hostility and did so because of an in order to protest about that PC itself.

BC - Impossible to imagine any constellation of features that is more culpable in contravening the Equality Act - doing something not only bc of their PC but to complain about their PC to their employer is about as culpable as it gets.

BC - As a result GCC directly discriminated against. To imagine that KM for SW did not expect action is absurd.
LW - there were no findings as to this in the ET
BC - the point about foreseeability isn't essential. All we need is 1. it was bc of belief 2. whatever his

BC - intention, it is necessarily a detrimental and unfavourable act by hiim [KM of SW]. It's obvious that if you send a complaint to someone's employer than it is a detrimental act, it's a less favourable act, irrespective of what his subjective intentions were. If the ET

BC - didn't acknowledge that, it can be corrected
LW - The points are very reductive but why are we being treated about the elaborate advocacy that it was all about him trying to get GCC to reopen the investigation. The ET didn't find that culpability.
BC - I was addressing

BC - the point that what he is doing very obviously has all the characteristics of direct discrimination.
J - Was it more than protest - it must at least include the possibility of getting a public denial. You said intention doesn't matter
BC - it's a protest with an appeal

BC - to a perceived ally without a specific objective intent except perhaps a public denial
J questions BC point of legal test - you're saying it can only be understood as an examination of KM mental processes which he had told the tribunal about

J - ET appears to have accepted what he said but you are saying that doesn't matter in law. You're saying the email has to be read objectively?
BC - Mostly yes. It's the 'no more than' as a reason for rejecting the claim to which I object.

BC - It's enough to establish liability that the ET found that it was objectively detrimental to her and objectively because of the PC of belief.

It's very unlikely we would be here if it was a different PC. If there was a complaint about sexual orientation and then that

BC - employer investigated the employee for kissing his partner, and the employer then took action because he shared that prejudice - there's no way we'd be here.

BC - Protesting over PC of belief is no different to protecting for race, sexual orientation, disability - there's no hierarchy. The characteristic of belief has the same protection.

LW - questions whether there was an attempt to cause discrimination - ET found it was only a

LW - protest
BC - Yes. It's opaque what test the ET thought they were applying.
LW - yes - we can't read it like a statute
BC - Points about how case was presented to tribunal

BC - before the ET it was accepted as a matter of common ground that the 'but for' clause had material impact. On behalf of SW no alternative additional ingredient was spelt out before the tribunal. There was no forensic debate about additional ingredients. But if it was

BC - going to introduce an additional ingredient it was incumbent on it to explain what it was. The ET was very focused on intention and I don't criticise it for considering it as a factual Q because we were making subs to ET about 2 different possibilities of S11 claim

BC - We were making subs about possibility that it was an attempt at contravention and the possibility that it was an actual contravention.

In case of 'actual contravention' it would be sufficient that it had resulted in the outcome on a 'but for' basis.

BC - it's not apparent from ET findings what it thought the test was. It thought it was not enough that KM acted bc of PC and that 'but for' his actions the discrim would not have occurred but the ET doesn't spell out why.

BC - the correct interpretation of S111 - will divide into four chapters

1 principles of statutory interpretation
2 general context
3 in light of 1 and 2 - correct interpretation of 'causing'
4 in light of 1 and 2 - correct interpretation of 'inducing'

J - was it agreed that SW was a service provider
BC - not a finding but a matter of common ground.
Discussion re: relevant relationship of GCC and Stonewall.

Was conduct of KM within scope of sphere covered by EA is a different sphere to elements of liability and causation?

BC - The ET did not dismiss claim that it was within sphere of liability and causation and that was not appealed

Also SW explicitly conceded that it was within the scope of the relationship with GCC

Also IO was right then to make that concession and is wrong now to submit that

BC - KM's personal ignorance of Diversity Champion Status makes any difference to it.

the key proposition - it's the capacity of GCC that matters, not the subjective position of KM. GCC can't know the individual positions within Stonewall. On any view GCC considered the

BC - in the light of the Diversity Champions Scheme. That means IO was right then and is wrong now, and there's been no appeal in respect of the original concession.

Back to statutory interpretation.

Most recent and helpful finding is in FWS Supreme Court judgement

BC - Par 9 of the judgment p762 sets out princs of statutory interp: seeking meaning of words which parliament used - ie the meaning of words as used in their wider and relevant context.

BC - where there is sufficient doubt the indicators must be given significant weight. Then to Par 112 and 113 p 787 - [QUOTES ON SCOPE OF EA] Pars 130-31 on who the EA protects. Then Pars 151-2 'Clear the EA gives protection to vulnerable groups that share a characteristic'

BC - The EA is a consolidating and amending statute. It has wide scope. Purpose of EA is to eliminate the very great evil of discrimination. Where the conduct of Person A has all the aspects of discrimination those are the very circumstances in which Person A can be liable

BC - EA needs to be applied consistently which means there must be a touchstone - am I allowed to do this thing or not? The effect of the tests without clear touchstones is that you can only decide after the event whether what Person A has done has the characteristics which give

BC - rise to liability. That's not really an acceptable way for this piece of legislation to operate.

Discussion about lunch.

Returning at 1355. Lunch. Court rises.

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