Court of Appeal rules chambers alone are responsible for the discriminatory treatment of a barrister
The Court of Appeal has rejected a claim that LGBT charity Stonewall caused or induced discrimination against a barrister by her chambers, ruling that responsibility lay solely with Garden Court Chambers.
Lady Justice Whipple upheld the decision of Mr Justice Bourne in the Employment Appeal Tribunal, which dismissed the claim that Stonewall directed or influenced the discriminatory investigation of complaints made against the barrister, Ms Bailey.
The case arose from events in 2020 and 2021, when Garden Court Chambers investigated complaints about Ms Bailey’s gender-critical views, expressed on social media. In July 2022, an employment tribunal found that chambers had discriminated against or victimised her in two out of five alleged detriments and ordered it to pay £22,000 in damages for injury to feelings. Chambers was later ordered to pay £20,000 in costs.
However, the tribunal rejected Ms Bailey’s argument that Stonewall had played a causative role in the discrimination. It found that an email sent by Stonewall to chambers was merely “the occasion of the report” produced by the investigator into the tweets, and not the cause of the subsequent discriminatory treatment.
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The tribunal concluded that the email amounted to a protest and an appeal to a perceived ally, rather than an attempt to induce discrimination. Mr Justice Bourne dismissed Ms Bailey’s appeal against that finding, and the Court of Appeal has now agreed.
Giving the unanimous judgment, Lady Justice Whipple said that while it “would have been better” for the tribunal to have given fuller reasons, its analysis was “clear enough”. She noted that the concept that an action can be the occasion for later loss without legally causing that loss is well established.
The tribunal was entitled, she said, to conclude that Garden Court Chambers’ own actions broke the chain of causation between Stonewall’s complaint and the discrimination suffered by Ms Bailey. The tribunal had identified the specific acts by chambers that led to the detriment and found that those actions were attributable to chambers alone.
Lady Justice Whipple said the tribunal had characterised Stonewall’s complaint as no more than the trigger for chambers’ actions, describing this as a lawful finding that the causal effect of Stonewall’s involvement had been eclipsed by chambers’ decisions. She interpreted this as a finding of a new intervening act and held that the tribunal had applied the correct legal approach.
Following the ruling, Ms Bailey said on her website that certain aspects of the judgment were “surprising and very concerning”, adding that she would review it in detail with her legal team before commenting further.
Ms Bailey, a high-profile campaigner for gender-critical views, raised just over £550,000 through crowdfunding to fund the litigation, receiving 9,043 individual donations. She has previously said that one aim of the case was to challenge Stonewall’s influence through its Diversity Champions scheme.