Thread by @tribunaltweets2

Thread 2 AB vs SW

IO: A diff ET may have made a different decision doesnt mean this ET was wrong
LW: Unless they erred in law.

IO: If the parties had put an approach as to how provisions should be interpreted you cant go back on that
LN: I do follow but its really about the language of causation and its not obvious to me we are helped on that

IO: It would be wrong to suggest every conceivable argument was put by each side
LB: It was a 4 week trial. We are conscious we are focussing on a v small part of the case. Thats not itself an answer
IO: No but it does provide some explanation as to the paucity of detail in the

reasons.
LB: Yes
IO: I know that this court will be very familiar with the caution expressed by appellate courts when looking at first instance decisions. Equally, principles apply that ETs sometimes use inapt language but we do not presume they have got it wrong.

LN: In this case the key sentence is 'the email was the occasion of the report no more' but its not expanded on.
IO: In context, there were 14 separate allegations
LB: So this sentence means its part of the history but not the cause
IO: Yes.

I thought hard like BC as to whether one could induce and not cause my lady and could not come up with any examples.
Moving on to the meaning of causation in a more structured way. What the test is in relation to these subsections.

The reading in of 'bc of a PC' is not an appropriate or effective solution to the problems we have. BC says the purpose of the EA is to counter evil of discrimination and provide remedy. Its not a remedy for any act or ommission its confined. He has amended his analysis on basis

of stability and cohesion. This is illusory bc did bc of a PC, A do something that caused B to contravene one is till not the wiser as to whether there is liability. Thats bc a court has to assess the nature of the thing that is done. That always has to happen.

In criticising the limit Mr Justice Bourne offered in the EAT re the fair, just and reasonable assessment, he said it was too uncertain. My sub is there has to be a weighing up here. That is something that courts are used to its what they do. In terms of the things that might

make a difference then clearly eg racist views would move the dial but its not an answer in and of itself. If it were BC's but for test is elevated above any other test. In the sphere of tort there are a number of diff ways that causation is considered. Not simply but for.

LW: On your case, the just fair and reasonable, that is part of what [inaudible]
IO: My sub is it is what they do look at
LN: Does fair just and reasonable inform?
IO: Yes. I was going to say depends on intervening act but clearly s111 absolutely anticipates intervention

LW: Tort law has its fuzzy edges. We are nosing towards the same basic principles that liability falls where it ought to fall. You accept that this does form part of the analysis?
IO: Yes and in that case they were dealing with remedy issues. So 1st stage and 2nd stage is ahead

of us. But analysis of 2 stages is still helpful. 1 but for 2 weighing.
LB: Sense of what is fair and just?
IO: Yes. Range of factors.

LB: SH part in this story is not an intervening act but is part of what GC did to the C amounting to a contravention
IO: The ET characterises it as additional things that happened. Rightly or wrongly the ET considered the internal debate within GC took away from SW suggestion of

fault. It created an opportunity for harm.
LW: The way the investigation was carried out was problematic according to ET. Though SW action was reasonably likely to lead to investigation it was nothing to do with SW that GC did the investigation unfairly
IO: Yes

Nothing to do with SW and as a conscious decision by GC
LW: And intervention of ppl who should have not got involved with the process that offended the ET?
IO: Yes bc two ppl had views about AB's protected views.
LW: Legal responsibility did not lie bc SW was the occasion and no

more and there were intervenors. But we could use other analyses eg fair and reasoable.
IO: Yes that is the nub of it.

LB: Any other areas you need to cover that you havent?
IO: I should deal with the suggestions re the consequences of this appeal. One moment please. I have been passed a note that para 79 is what you had in mind page 105 my lady.

Turing to grounds of appeal. I hope that the way the respondent has identified its positions laid out are clear. Ive already talked about approach to reasons. Grounds 1 and 5 in part are dispensed with as para 360 tells us what the test is.

In relation to KM email, ET conclusions should not be gone behind. Notion ET was preoccupied with KM intentions was bc of C's case which focussed on KM's intent.

So to see ET deal with this in detail in the decision is not evidence of misdirection. Its bc of how she put her case. If there is no misdirection as I submit, then we are left with a bare perversity appeal. I dont need to rehearse what is said about those.

In closing, there is sufficient evidence from what has been placed before you for you to be satisfied that a permissable conclusion has been reached on the evidence. There is no basis to go behind or overturn.

LB: Thank you IO
BC: Im going to focus on what the court has identified as the heart of the dispute.

BC: I will ref back to how C put the case in a nutshell. This might help to understand the structure of para 377. The way I put C's case in closing was two fold.

I said to the ET if they were to find that GC did discriminate by upholding SW complaint then since the complaint was influenced by C's beliefs then that would be sufficient to establish liability. That was on the basis of but for + significant of the characteristics of discrim.

The alternative case was to do with intent. Eg if claim against GC fails then stonewall attempted.

It may be when you come to para 377 that those two things are being reflected.

So we are left with the first two sentences as being the ET's answer to the claim having found GC did discriminate. On any view those two sentences dont answer the self directions at 360 which was consistent with what I had said was the correct approach.

If they were introducing the concept of an intervening act breaking the chain that was off their own back.

The q is whether what they said is an adequate disposal of the claim as a matter of law. In relation to the meaning of final sentence of para 369 we checked our notes and we cant find a passage that reflects that bit of the reasons.

We can only infer that its the ET finding that anything KM said in evidence. As to what it means, it cant be a ref to SW making an association via the complaint bc the whole of the passage is devoted to what KM wanted to achieve via GC. Also this was a private complaint.

Thirdly nothing in the ET findings suggests that SW was associated with AB or that KM thought SW was being associated with her views. He was concered about GC association with AB and t ppl going to GC

So he had in mind perhaps GC saying they didnt agree with AB but no specific aim
LB: [inaudible] contravention of the act
BC: Depends on terms they said it. If they said AB is tphobic etc that would be a contravention.

LN: How do you fit 369 with 372? When ET says KM had not been looking for any action?
BC: ET is not saying KM expected them to do nothing just that he didnt have a specific action in mind save for a public statement

Moving on to stat interpretation. My submission is not about 'reading in' meanings. Cause has the ordinary meaning in law [refs authorities]. In addition to but for there will need to be additional features informed by fair, just and reasonable.

Additional features to be identified have to have reference to cause of action. So characteristics of discrimination
LW: And the characteristics are the influence point and the damage point. Who has to cause the damage?

BC: Yes, the influence point I think I can leave. The second aspect of direct disc. is less favourable treatment. Quite obviously KM would not have written this complaint if AB did not have this PC
LW: Thats the influence point. What is less favourable?

BC: He wouldnt have written it at all. Thats the easy bit. It does also entail an aspect of detriment
LW: So whats that? By A not by B to C? The causative act needs to cause damage in and of itself?
BC: No. A's act does not need to damage C. They just need to be in relation to C

LW: Yty we talked about cuplability on part of A but there could be an innocent A as we talked about yty
BC: My fault, I meant innocent as shorthand for actions which consist of discrimination

LW: You are nudging towards strict liability the moment theres a but for if PC etc. If something bad happens that is enough
BC: I am nudging towards that but thats not a strict liability bc of mental element direct disc. This is the fundamental point of dd.

If a person within sphere of Act does something bc of a PC which causes detriment, that is enough to give rise to liability for dd
LW: Ok prob me on a limb. Next question then but what next? Cant be that that creates the liability bc there are test around intervening events

BC: In my sub not in this case. It is enough that A acts bc of a PC. It will generally be necessary for it to be reasonably forseeable and but for causation. Those ingredients are sufficient by themselves.

LN: Thats a core issue, is there a role for intervening acts, novice acts
BC: Yes core issue. Court does not need to say will never be something that breaks chain of caustion but nothing about the intervening acts of B can break the chain of causation
LW: Why not?

BC: Inherent in s111 that B has done something which is culpable in the disc. sense for which B is liable. Clearly both A and B could be liable
LN: Suppose A does something with PC in mind and then it causes B to run in front of car that knocks him over changes his mental

state etc.... so does not make sense that but for is good enough
BC: Yes thats why I say I dont need to go so far as to say there may never be an intervening cause. However, there it would not be Bs actions it would be the car.
LN: Yes but no sensible connection btw A and B

BC: There may be a role for intervening acts but still my answer would be a necessary part of the causal chain is an intervening act which has nothing to do with B

LN: Thats quite a novel intro to law of tort. Why should we be restricted to Bs act?
BC: Im not proposing this as a general intro to law of tort. The answer is that this is a specific and entirely unique, novel cause of action

LW: You have to persuade us s112 narrows these concepts
BC: It does bc s112 itself contemplates B committing a basic contravention. In order for B to do this in relation to dd means B independently acts to C bc of C's PC.

LB: Not the first inducing tort ... been around for years
BC: This provision is an amalgam and development of differing provisions in predecessor legislation. In light of FWS and need to look in EA in its own terms I wont take you through history. This is not like inducing

breach of contract tort etc where intention is important etc. It is a unique tort located in EA.

LW: You say not open to ET to conclude email was the occasion of the report.
BC: Yes
LW: That doesnt seem to be way case was put as ET thought it was open to them

BC: s112 expressly contemplates intervening acts of B. It cannot be an intervening act which breaks the chain that B thinks about and then acts upon the causative action relied on in a way that is discriminatory.

Its whether it was objectively reasonable forseeable.
LW: Was it the fact of an investigation or the mishandling?
BC: By causative action I mean SW's complaint. The unlawful action was the partially upholding.

LW: Was the outcome reasonably forseeable?
BC: Yes. KM was writing to GC saying AB is saying tphobic things on the internet. So forseeable will think about and may uphold his complaint. Indeed some at GC shared KM hostility.

LW: Where does it come in that it was GC mishandling?
BC: Its not right to say that lead to the disc. They make findings about what GC did, they were critical of some of these things. This was part of the set of the facts from which they inferred the outcome was due to the PC.

Because GC is an org its consideration involved a process and number of ppl. That doesnt make the comms and process different in principle to what might be done in an individual's head.

The things IO has pointed to are part of the consideration of and decision about the complaint itself. Thats the character of all the steps. So I submit, on any view in this case there is nothing about the character of those things that is anything other than the intervening act

of B in thinking about and taking the decision on the complaint which is the cause of this contravention. Final fallback position is even if intervening acts might sometimes break chain, even if intervening act of B might break the chain, in this case the acts cannot do so.

This is bc it is B doing the basic contravention directly in ref to what A has done.

Im unclear whether the 'just a protest' characterisation could be said to be a basis on which the ET did and properly could have found 112 not made out. If this is in play I say the subjective intentions of A ought not be relevant.

The word cause does not imply intention and intention is not relevant as a general principle in disc. law. Therefore its not relevant whether KM intended the complaint as just a protest. Only potential relevance of the just a protest is if that goes to forseeability.

That has to be considered objectively not in relation to KM subjective intentions. ET did not consider that objective q but saw it as one possible interpretation
LN: Dealing with a different issue. Talking about subjective intention. They dont in terms deal with forseeability

BC: Yes. The formal content of letter itself. The ET does identify this as a complaint. Q about evidence as to how GC saw the complaint. There was evidence on this but the critical point is it was understood as a complaint by GC.

[BC gives bundle ref to show seen as complain]
LB: Ref to complaint appears again and again. Para 376
BC: Focus there is whether threat to their relationship w SW. Plainly forseeable objectively that GC would see and act upon as complaint. That ought to be enough.

However, not just a complaint. Sent by Head of T Inclusion for influential org. Branding AB beliefs as bigoted and hate speech. Miller and Higgs show that position is a prejudice about those beliefs like any other eg prejudice about race bc its not true.

At that time SW was seen as moderate and respected. So ofc reasonably forseeable.

[Further ref to authority] Clear first thing that will happen is complaint is investigated and decide whether to uphold on grounds in the complaint that are fundamentally prejudiced and discriminatory. Its not ok to express beliefs in a way that is tainted by prejudice and untrue

on behalf of an org within the sphere of the Act.
LB: Would case be same if SW put out a press release on AB but not addressed to GC saying do something?
BC: No

LN: Why not?
BC: That would take it outside relationship which Act applies
LW: Why?
BC: Statement to public at large. Not in context of relationship and employment context. If my boss makes a statement on twitter that is lawful re twitter but I am offended I cant go to e'er.

But also not reasonably forseeable that GC would take action in that scenario.
LW: Would need a fact find?
BC: Yes. Our case is that its obvious that if you make a complaint its likely to be investigated on that basis.

Its enough that you have action bc of the PC but for and in most cases forseeability
LB: Of detriment
BC: Yes.

On the facts of this case influence and but for are conceded. Reasonable forseeablity is there in my sub. If Im wrong it would need to go back to the ET.

IO said there was already an investigation ongoing but it is clear that the first part of the investigation had concluded, then SW complaint comes in and its that complaint that GC run with that results in the discrimination by GC.
LB: Yes Ms Sikand was just about to say no

further action
BC: Yes. And C was only asked to respond to the SW complaint. Those are my subs
IO: Two tiny points of detail. In relation to detriment GC not associating with AB, ET sees that detriment has already taken place in relation to the response tweet
LB: 24th Feb tweet

IO: Yes. And finally BC spoke about actions of B as an org and said not individual's actions. Note there are 119 barristers and specific allegations against some so a word of caution to think of that as a monolith.

LB: We will ofc reserve judgment. Very grateful to both sides. We have been saying to each other that the oral advocacy on each side has been very high quality. When we have reached a decision we will send out embargoed draft in usual way for typos etc

End of appeal hearing.

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