What does Bailey v Stonewall tell employers about protected beliefs in the workplace?

In a highly publicised case concerning Stonewall and gender-critical beliefs, the Employment Appeal Tribunal (EAT) upheld the Employment Tribunal’s decision to reject a criminal barrister’s claim that the LGBT rights charity had induced her chambers to discriminate against her on the grounds of her gender-critical beliefs. This case shines a light on protected belief-based discrimination in the workplace, an area of law that can be difficult for employers to navigate, particularly in cases where the employer is pressured by a third party to discriminate against an employee.

The facts

Ms Bailey was a tenant at Garden Court Chambers, specialising in criminal law. In 2018, Garden Court signed up to Stonewall’s “Diversity Champions” scheme, which amongst other things was aimed at developing “inclusive workplaces”.

Ms Bailey sent an email to Garden Court objecting to the association with Stonewall, as although she “fully support[s] trans rights”, she did not wish to align herself with “the trans-extremism that is currently being advocated by Stonewall and others in respect of the proposal for self-ID”. She subsequently posted tweets on her opposition to related matters, which garnered both positive and negative reactions on Twitter (now X).

Stonewall made a complaint to Garden Court about Ms Bailey’s tweets. Garden Court investigated and found that the tweets were likely to breach Bar Standards Board (BSB) guidelines, and asked Ms Bailey to delete the tweets.

Ms Bailey brought a successful claim in the Tribunal for religion or belief discrimination against Garden Court as a result of the investigation and its outcome; and an unsuccessful claim against Stonewall for inducing Garden Court to discriminate against her. She appealed the ET’s decision on her claim against Stonewall to the EAT.

The EAT noted that it was not particularly likely that Garden Court, purely as a result of and in responding to the complaint and identifying any breach of the BSB guidelines, would be significantly influenced by the mere fact that Ms Bailey held particular beliefs. The judgment stated that the right question was not whether the unlawful outcome was reasonably foreseeable but whether it is “fair or reasonable or just” to find Stonewall liable for causing it. As responsibility for determining the complaint in a discriminatory way lay only with Garden Court, Stonewall was not liable for the discriminatory outcome.

The judge went on to state that, on the facts of the case, Stonewall did not intend Garden Court to inflict a detriment on Ms Bailey because of her protected belief, but had lodged the complaint as a protest only. That meant that the claim must fail, based on the EAT’s conclusion that to be liable, person A must intend to induce person B to do something which contains all the elements of the basic contravention.

Ms Bailey has not yet confirmed whether she will be appealing the EAT’s decision, but she has set out “five key aspects of the judgment which are of concern” on her website, and states twice that she will speak with her legal team about her next steps.

Given the large amount of press interest in the case, and that the Claimant has exceeded her most recent Crowdfunding target, it seems likely that the sustained focus on the issues raised in this case will mean that Tribunals will continue to see a rise in proceedings related to gender-critical beliefs and transgender rights.

If you have questions or concerns about belief-based discrimination in the workplace, please contact Imogen Dale.