Thread by @tribunaltweets2

The Appeal of Allison Bailey v Stonewall Equality Ltd re-starts this afternoon at 13.55. The proceedings will also be live-streamed here:

youtube.com/@RoyalCourtsof…

BCRight and common ground that the term cause doesn't imply a conscious motive on the part of person A and that must be right or it would be inconsistent with emp law.
It is necessary to analyse the scope of obligation to find what the defend ought to be held for
the eat is wron

in my submission in supplying the test because as I have indicated the duty bearers need to know what it is they are and aren't allowed to do

Para 123 of decision p71 of bundle: EAT says second line - does not depend on test of foreseeability, but it will be relevant but will depend on facts.

Similarly the emph EAT places on para 115, p70 on the precise causal relationship between A actions and B's response is in my submission unworkable.
What the EAT appears to be saying is that As actions need to be the direct trigger for the discrim thought process of person B

You can have a situation where A and B share the same prejudice person A would not be liable.

The EAT approach unworkable and the only approach that is stable is to refer back to the underlying causes of action, that is consistent with authority.

The leading auth [quotes Authorities bundle] the core point p276 para 69
Tab 5

He IDs establishing the scope for which the def may be liable in tort.
[discusses case]
A case of law and judgement - the correct criteria to test whether Person A ought to be held liable to the primary fact it had found.

J - asks Kuwait Airways what para?
J - extra criteria value judgments?
BC exactly that
para 70 elaborated on epithets lawyers rely on

BC refers to more civil case law.
This is an entirely unique statutory tort it is not immediately apparent which of those ought to be selected for those purposes,

BC - discusses an underlying test in relation to EA and foreseeability and its requirement and losses from discrimination
BC - refers to Tab 8 of Authorities Bundle...

...uses this example - unfavourable reference...P365 para 15 - I will focus on para 18 no rule of free choice...same point para 19. Para 20 dealing with foreseeability.
[quotes this example regarding supply of information]

BC - Para 21 the illegitimate reason for an adverse reference. It is not too remote, it is close and direct...
If you were to transpose this to present case, they fit like a glove

In this case Mr Metcalf made a complaint that was the very kind of thing to lead the person being complained to doing the things in the complaint. In this context of discrim leg the relevant criteria

- does it break chain of causation - the criteria are the illigitimate purpose and prescribed motivation. Was this objectively liable to be treated in this way it does not require the intention of the person doing the thing

J - asks for clarification
BC was this the sort of thing to be treated in this sort of way by the recipient.

BC I have made my point that both of alt test beg the question, if you take EAT test you end up asking, what are the criteria of justness? And that is back through legislation

BC - what is direct and indirect in this situation. This leads back to purpose and the primary cause of action. And those criteria and give stable basis for know where you stand.

BC if a public service provider does something less favourable to B or C, they will be liable to consequences if it leads to discrim against C.
BC - deal with inducement next

BC - para 59 p18 of bundle. It is common ground that an inducement need not involve carrot or stick but may only involve persuasion or encouragement.

BC p 33 and 34 of auth bundle
Also whether or not Person A intended the contravention that occured...
Para 60 it is perfectly natural that person A induced person b where person b makes a complaint

BC the broad interpretation of inducement must be implied
So the relevant ingredient of liability for inducement are P62 [discusses discrim process and outcome between A and B]
[some discussion about J question about inducement]

About relationship between inducement and causation.
BC - these are obviously ways of overlapping. They are intended to be broad and not narrow
J - asked about meaning of meaning of word 'induce' in this context.

BC - I think I can draw the threads together by addressing grounds - ET and EAT
Any questions so far?

none
BC Ground 1 ref to skeleton argument. p37. the EAT doesn't matter for these purposes.
Ground 1 follows if you agree with me, in relation to correct test. The tribunal didn't apply that test.

Doing the best we can the chain of causation was broken because KM didn't intend the specific actions of Garden Court.
[discusses issues of protest]
Ground 2 is to the effect that even if I am wrong about what the test is and the underlying causes of action on

any view in this case, it would be fair and just to hold Stonewall liable becasue of all the factual features of KM's actions. Which I have outlined and recapped in skeleton argument.
Ground 5 -failure of tribunal based it's dismissal of inducement by primarily on its findings

to the effect that KM was not intending to threaten damage relationshipo and GCC did not perceive. The tribunal didn't apply the correct test in relationship to inducement and because it didn't apply could only find as it did.

BC - on KM own evidence what he intended was to induce GCC to do something that would amount to unlawful direct discrim. He is liable for any detriment to the claimant that follows from that.

There are all these routes to establishing liability
Error of Emp Appeal Tribunal - there are 4 of them.
1 Ground 3 the Emp appeal. para 67. reasonable liability and the test for it.

Abundant evidence before Tribunal that all sorts of respectable orgs have been inclined to discrim against GC people.

BC - GCC had expressed views similar to KM
2. EAT outside remit: Para 67.2 Stonewall complaint was itself a legit manifestation of beliefs under EA - this is neither here or there. Everybody is entitled to hold beliefs and that would apply to KM.

...What the EA prohibits is acting on those beliefs subjecting others to detriment. This applies both ways.
GC or KM
J question - the EAT trying to pick up on what the ET said about protest. But if ET is merely a protest.
Don't dispute this?

BC is is by the by because he's not expressing to the world at large
J - he was entitled to write? There must be a point where you can say 'I disagree'
BC - yes, that is. Employees allowed to express views in workplace

BC it is by the by, because KM gone the extra mile, making allegations of transphobia.

3. The EAT took into account para 70.3. The suggestion that KM was not acting because of belief itself but a manifestation of that [quotes example in order to make that distinction] Court of Appeal Higgs para 74

The EAT was wrong to say you can draw distinction between allegedly and actually objectionable.
Those 3 aspects of EAT decision are further errors, ought not to have waded in

Even if EAT were right, and the test was fair or just or reasonalbe in way they suggest that was not on any view the test applied by tribunal. And requires application of judgement by first instance tribunal. Even

if you are against me on test at the very least, if it was diff test, it wasn't applied by tribunal quotes Jaffrey which makes that point.

R - what we have heard is an attempt to challenge the findings of fact at the Emp Trib.

apologies have lost sound.

IO - what sections 111 impose strict liability in relation to person A
My submissions will firstly consider basis of case. In fairness to ET and the context one ought to look at those reasons.
Tribunal reasons I turn to Stat Provisions.

IO the respondent's position - the C lost the case on facts. The ET did not accept analysis of claimant.
The facts lead the ET to make decision it did

IO - Tab 10 core bundle. Identify the way in which the complaint is put against second respondent
The facts relied on can be seen page 226

IO - Sorry p221. para 14. We see the C identifying that a complaint was made from first respondent.
Next page - C assertion that having engaged fully with investigation Stonewall fully upheld.

Claimant - GCC colluded with Stonewall and went on to say that the complaint against her was procured by a member of GCC. the allegation an explicit inducement to GCC by Stonewall

Para 18 the C case was that the Diversity Programme that framed relationship between GCC and SW this dictated the direction of GCC
J - does it say that? It doesn't explicitly refer to diversity.
IO - I accept that correction

IO - p256. YOu wil see that para 3 there is info about nature of diversity champ programme as it was at that time.
Para 4 of this doc, you will see description of the nature of the relationship between Stonewall and GCC and you o

will see the acceptance that Stonewall was a service provider by way of Diversity Programme. The respondent accepted that it was a service provider to GCC and therefore had a relevant relationship

R sets out basis of complaint to GCC. YOu will see in setting out position para 10, SW state that KM was not a member of the team responsible for Diversity Champ

scheme or KM not aware GCC a member and that after submitting his complaint there was no more contact between KM and GCC. No response to complaint by Stonewall.
Assertion KM not involved in investigation. They were not privy to claimant's response to that.

J - Question about ? particulars.
IO - they are relatively lengthy. We have a list of issues, that is sufficient
IO p259 a summary of the nature of the activities that are covered within the DC programme. You will see and i will suggest that the nature of activities relate

to advice and guidance to HR and other matters and the point made by SW at that time was that merely by accepting the chambers as a scheme champion and offering services they were not inducing unlawful treatment.
I

IO the scope of allegations C made about SW in that context one could look less harshly at the passages at the decisions of the ET.
It is helpful to take you to list of issues that ult the parties invited the tribunal to determine. End of ET decision.

I think it is fair comment to describe as unweildly. You can see allegations made against SW. And again I will leave you to read those allegations to yourselves, but one can see that the scope was wider than the matter that leads us here today
J - this was a pretty massive trial.

IO the claim against SW was founded on matters that the ET would be bound to accept, Turn to those. The first was that the action of KM submitting complaint was in the purpose of supporting formal action against

C not perceived safety concern. The next specific finding the ET made was that before submitting complaint KM discussed complaint with colleagues at SW.
The third finding was that when KM submitted complaint that he knew GCC was a member of diversity champ scheme.

he 4th was that KM made implied infliction of reputational harm

5th that KM conduct was consistent with wanting to exert influence. Consistent with SW seeking to silence GC views. Specific finding the ET could and should make in upholding her case against SW the other element was the extent of the challenge to SW

[more here about KMs motivation apols missed some here]
These were all claims C made in submissions this is in part the reason we have the decision we do have

IO the contention from the C that SW intervened with how scheme members and did so routinely and had done so in the case of this claim. That is the context of the complaint Ms Bailey brought. Those were the matters on which she sought specific findings.

Having looked at the way in which the case was put I want to just if I may take some time to look at ET decision itself.
It is helpful to note at P94 an indication of structure ET imposed on this decision and you will see that at the top of the para 33 - the findings of fact para

IO - in the intervening paras there are findings which impact on the claims against SW and other matters relevant to this appeal. In relation to that broader context and the way C made case,

think it's right court sees ET conclustion about the interaction between SW and GCC pursant to Diversity Cham Scheme. It is clear in my submission that the contact is minimal which is relevant when it comes to inducement.

KM acknowledges the soft power in the SW relationship
Regarding tweets - the internal decision making how complaints generates generated by AB tweets ought to be dealt with internally and what one sees there is before any intervention by KM is a view within GCC that the tweets

were damaging and effecting GCC business.
Refers to GCC constitution and damaging reputation. Well before arrival of KM or anyone else in SW.

IO - one sees at p129 the judgement and reasons set out the sequence of events of investigation.
There was the initial conclusion that there was nothing to investigate.
Events directly relating to SW where KM complaint email is found by ET to be drafted on 28 Oct and sent

31 October.
Para 190 - what KM did and said
Para 191 - this is material the ET record that it was the C case that Ms Brewer colluded with SW in the submission of complaint and/or invited them to submit that complaint.

Para 199...the ET made some material findings in my submssion around the KM complaint how it was put forward. KM didn't know Ms Brewer. KM only joined SW a few weeks before meeting and unaware of GCC being a member of Diversity Champion. ET say that was plausible

IO - what prompted KM to review tweets - a message from [missed] and having reviewed tweets he felt a complaint should be made.
What one then sees at para 200 p 136 the ET reject the notion that MB procured complaints from SW.

Para 202 one sees the ET findings in relation to Tweet number 10. In fact 10 was a string of tweet concerned SW posted 2 Nov and it was these tweets that the ET led comment to head of chambers that AB should not be maligning SW
One sees how GCC progress complaint...

That was a decision made by investigator on the face of having read complaint. In terms of chronology that the investigator wrote to AB and sought her representations on tweets. In writing to AB she ID'd comment on tweets and you will see the Morgan Page (?) tweet.

IO - you will see AB response. What is clear p141 is that the C is saying that in turn her rights to freedom of expression were being interfered with by reason of SW complaint and she made it clear in ET that in the C view the tone of SW complaint was attempt to harass her

IO - the ET tribunal response to C rebuttal. She notes language highly provocative and acuse GCC of harassment for accepting complaint. Faced with SW complaint and C front footed rebuttal. GCC decided to refer to Bar Council Ethics Committee

IO that decision to consult with Ethics Committee was made entirely by GCC internal mgt. The ET sets out the steps that then happened in terms of providing what happenedwhat material appropriate to share and the view that the light of material investigator was shown. SW was not

The response of the heads of chambers and Ms Harrison who were pleased with provisional report and that as a result that one of heads decided no more advice required no more action required in terms of reg reporting

The report was not distrib within chambers and KM only became aware of outcome during these proceedings. The outcome of the GCC internal investigation was to conclude 2 tweets likely to breach bar standards and she was asked to delete them.

AB replied on 20 Dec that she was not minded to delete and she did not, and that was the end of it. So when one looks at the chronology and one ID the points at which SW involved in a meaningful sense you see email on 31 Oct and nothing more

IO I would like you to look at how the ET applied law.What one sees is an unremarkable set of self directions from para 250 to para 259 and those authorities were matters of common ground between parties.

There is a lengthy passage in which the ET deal with the C belief and the discussion around which those are protected. There is no appeal in respect of this. I do think it is important to take you to other allegations in play at the time made by AB against SW, in particular there

was an allegation of indirect discrim and that is relevant because the practice said to be applied was that the 2nd and 3rd respondents allowed SW to direct complaints process.

IO it is my submission that these findings are relevant in relation to section 111.
I don't think I overstate the position if I describe ET as being emphatic and material. No evidence SW influenced or followed up and for the avoidance of doubt p180

they make it clear that the claim in relation to SW was not made out.
The ET look at relevant stat provisions and consider in some detail.

The starting point the words of statute para 359 the ET set out how it applies to parties in front of them. Para 360 what test applied - the ET tell you the test they apply the test he invited them to reply and the R did not demur from

J - you say they were applying test?
J - The ET found an action .....[difficult to catch what question is]
J we are looking for signif influence from protected characteristic
IO in relation to Section 111 para 361 and identify from that if a basic contravention does occur

IO - the ET also in para 362 had regard to the case of NHS Dev [quotes this proposition] it is not enough to show in a position to instruct cause there must be evidence.
Para 363 you see that appropriate direction burden of proof and ET r

reminds itself what conduct the C relied on for her complaint para 364 amongst the many things done, the response to the complaint KM at this stage the ET has its eye on the relevant law and disputed facts and it makes findings about those things.

In para 365 there are material findings that firstly the respondent was not aware of C internal GCC email suggesting being a diversity champion not a good idea for a range of reasons. ET made a finding on which individuals SW dealt with at GCC: DD (marketing) and MH (?)

But neither made decisions, but contributed to internal debate with GCC about what to do.
ET notes that the marketing director concerned about damage to GCC brand.
The other matter 365 tackles the way C describes the diversity scheme -

an organised protection racket, articulated on a number of occasions. ET found that was not the case.
Reiteration Ms Brewer not a SW mouthpiece
Para 367 the ET turn to KM complaint.

What one sees in 367 are the matters which in particular the ET drew from KM complaint on behalf of SW .
Para 368 the purpose of complaint. They are considering purpose because the C asserted pupose was to harrass her and to illicit her removal from chambers,

so the ET spent some time considering this and looking to see what evidence there was, and we see in para 368 their conclusions. What you see is an acknowledgement that KM email can be read in more than one way.
Not the ET that KM explanation not clear about KM email,

he wrote as a protest that SW staff being targeted with transphobic abuse and safety of communities.
[talks about reasons for KM email]
Para 368 KM response and justification for doing what he did in way he did it.

We come then to the view that ET view of KM evidence. C state it was not credible and shouldn't be believed.
ET did not take this view

ET asked KM about email to understand what was going on. Ultimately the ET did not agree with C's characterisation of KM's actions. That the ET preferred KM's evidence.
J - question about 369 commentary on what ET thinks that KM wanted to achieve. Writing to protest her views.

..can it be read differently?
IO what the ET do is to record what it is KM said.

Namely he had his advocacy hat on. What follows from that is what they drew from what he said. In that context I don't think it is right to read 369 as a finding that KM was acting to protest the C's protected belief.
J asks about KM's role

IO - KM says he can't be associated with this
There is no transcript
J - this is a finding we will have to make of it what we will
IO can't be any more assistance on para 369

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