Allison Bailey’s discrimination claim

The claimant, Allison Bailey, works as a criminal defence barrister at Garden Court Chambers in London. She is a founder of the charity and pressure group LGB Alliance and holds gender critical beliefs. The first respondent, Stonewall Equality Ltd, is a charity and pressure group that advocates for LGBT rights. The second respondent, Garden Court Chambers Ltd, is the service company that employs the clerks and staff at Garden Court Chambers. The third respondent is Garden Court Chambers, an unincorporated association made up of the barristers working at the chambers. The service company and unincorporated association were jointly represented and are referred to in this article as ‘Garden Court’.

In November 2018, Garden Court became a member of Stonewall’s ‘Diversity Champions’ scheme. Bailey had concerns about Garden Court’s membership of the scheme and with a number of Stonewall’s positions, including the assertion that it is morally wrong for natal-female lesbians to reject all trans women as sexual partners (referred to as the ‘cotton ceiling’). Bailey considered this homophobic. She was also concerned about Stonewall’s position supporting trans women’s entry into female prisons, women’s sport and women’s changing rooms.

In an email replying to an email notification that Garden Court had joined the scheme, Bailey objected to ‘any formal association with Stonewall’. Bailey alleged that because of her objection, the clerks at the chambers gave her less work, which caused her income to fall.

In October 2019, Bailey tweeted about the launch of LGB Alliance. Garden Court received complaints regarding Bailey’s tweet, including one from Stonewall. In response to the complaints, Garden Court tweeted that Bailey was under investigation. The investigation outcome upheld the complaints against Bailey and determined that her tweets were likely in breach of the Bar Standards Board Code.

In January 2020 Bailey submitted a subject access request (SAR) to Garden Court for data held relating to her. Garden Court did not immediately provide all relevant data, asserting that the SAR had only been made to the service company and that some documents were privileged. Bailey subsequently requested data from barrister members of the chambers and also from Stonewall.

Bailey brought claims in the Employment Tribunal against Garden Court for victimisation and direct belief discrimination, alleging that Garden Court had caused her the following detriments:

1.    Withholding instructions and work in 2019, causing Bailey financial loss.

2.    Publishing a statement stating that Bailey was under investigation.

3.    Stonewall’s complaint to Garden Court, which Bailey alleged was invited/colluded in by a member of Garden Court.

4.    Garden Court upholding the complaint.

5.    Garden Court failing to comply with the SARs.

She brought claims against Stonewall for instructing, causing or inducing Garden Court’s alleged unlawful conduct.

Bailey also claimed against Garden Court for indirect discrimination based on her sex and sexual orientation. She argued that Garden Court had a practice of treating gender critical beliefs as bigoted and of allowing Stonewall to direct Garden Court’s complaints process.

Employment Tribunal decision

The ET found that Stonewall had not discriminated against Bailey as it had not ‘instructed, caused or influenced’ Garden Court to unlawfully discriminate against Bailey. She was also not able to show that individuals she claimed acted on behalf of Stonewall were agents of the organisation.

It found that Garden Court had directly discriminated against Bailey because of her gender critical beliefs and had victimised her. Five detriments were alleged, but the ET found that not all of them were made out.

Regarding the claims of indirect discrimination, the ET concluded that Garden Court as an organisation did not have a practice of treating gender critical beliefs as bigoted, even if individuals did hold that view. In any case, it was not clear that women or lesbians were disproportionately affected if there had been such a practice. It also found that ‘there was no evidence whatsoever that Stonewall directed Garden Court’s investigation process’.

Garden Court was ordered to pay damages for injury to feelings. Aggravated damages were also awarded because the ET considered that members of Garden Court had ‘paid little heed’ to Bailey’s report of death threats in response to her tweets in October 2019 and suggested she had brought matters on her own head.

Conclusion

The judgment extends the legal protection afforded to gender critical beliefs established in Maya Forstater v CGD. In addition to a belief in the biological immutability of sex, a belief that ‘gender theory as proselytised by [Stonewall] is severely detrimental to women [and]… to lesbians’ is also protected. The ET determined that Bailey’s belief in ‘the pernicious effect of Stonewall’s campaign promoting gender self-identity’ was genuine and passed the test for protected beliefs set out in Grainger v Nicholson.

The ET found that Stonewall had not used threats of removing ‘Diversity Champion’ status as leverage to influence Garden Court’s actions. Similar organisations should be careful to do the same, or they could be found liable for inducing unlawful discrimination.

The case is an example of the ET’s jurisdiction over barristers. Although Bailey is self-employed, she was able to bring claims in the ET by virtue of section 57 of the Equality Act 2010, the proscription against discrimination by any trade organisation. Chambers are trade organisations following the EAT decision in Horton v 1 Pump Court Chambers. Bailey was also protected under section 47, which makes discrimination committed by barristers against other tenants unlawful.

Matthew Manso De Zuniga is a paralegal at didlaw, London