The Court of Appeal (CoA) has delivered a definitive ruling clarifying the limits of third-party liability under the Equality Act (EA) 2010, determining that a prominent advocacy group was not legally responsible for an employer’s discriminatory disciplinary process, as the employer’s independent actions functioned as an intervening act that effectively broke the chain of causation.
Facts:
Allison Bailey is a high-profile criminal defence barrister who was a tenant at Garden Court Chambers (GCC) in London. Ms. Bailey holds “gender-critical” beliefs, specifically the view that biological sex is immutable and distinct from gender identity, and that a woman is defined by her natal sex. She also held strong views opposing the advocacy of the charity Stonewall, particularly its campaign for gender self-identification and its influence on workplace policies. In 2022, an Employment Tribunal (ET) formally recognised these gender-critical views as protected philosophical beliefs under the EA 2010.
Stonewall is a charity committed to advancing the rights of gay, lesbian, bisexual and transgender people (LGBT). In 2018, GCC joined Stonewall’s “Diversity Champions” scheme, a programme designed to help employers create inclusive environments for LGBT staff. Ms. Bailey vehemently objected to this partnership, emailing her colleagues to argue that Stonewall advocated “trans-extremism” and was involved in a campaign of intimidation against those who questioned gender identity theory. By October 2019, she had helped launch the LGB Alliance, a campaigning group for lesbian, gay, and bisexual rights based on gender-critical principles.
The specific legal dispute was triggered by a series of tweets that Ms. Bailey had posted on Twitter (now X). These posts were critical of gender identity ideology and Stonewall’s influence. One post in particular criticised a Stonewall employee, Morgan Page, and the “cotton ceiling” workshop, which Ms. Bailey viewed as coercive toward lesbians. These social media posts generated a significant public backlash and led to numerous complaints to her chambers. In response to the “Twitter storm,” GCC issued a public tweet stating it was investigating Ms. Bailey’s comments and clarifying that her views did not represent those of the chambers. Simultaneously, Kirrin Medcalf, Stonewall’s Head of Trans-Inclusion, sent an email to GCC complaining about Ms. Bailey’s conduct, stating she was “actively campaigning for a reduction in trans-rights”.
In its 2022 decision, an ET found that GCC had directly discriminated against and victimised Ms. Bailey. The Tribunal ruled that the public announcement of the investigation and the subsequent finding that two of her posts were “likely” to breach the Bar Standards Board (BSB) code of conduct were discriminatory acts motivated by her protected beliefs, and she was awarded £22,000 in damages. However, the ET dismissed all claims against Stonewall. Ms. Bailey subsequently appealed the dismissal of the claim against Stonewall to the Employment Appeal Tribunal and later the CoA.
Decision:
The CoA dismissed the appeal. The Court began by addressing the threshold of liability under Section 111(2) of the Equality Act 2010, which prohibits “causing” a contravention. The judges acknowledged that while Stonewall’s complaint was a factual “but for” cause—meaning that the investigation would not have happened without the email—this was insufficient on its own to establish legal liability. Drawing on the principle from Kuwait Airways, the Court reasoned that the law must apply a “filter” to ensure that defendants are only held responsible for outcomes that are fair, just, and reasonable to attribute to them. They concluded that a third-party’s action can be the “occasion” for a loss without being the “effective cause” of the discrimination.
Because the ET had found that GCC’s managers were motivated by their own disapproval of Ms. Bailey’s beliefs and desire to protect their brand, their actions broke the chain of causation.
Implications:
The greatest implication of this case is the protection it offers third-party organisations that lodge complaints. The Court has established that a complainant is generally not liable for an employer’s subsequent “overreaction” or discriminatory handling of that complaint. For employment law, this means the “chain of causation” is difficult to bridge and, as long as the employer exercises independent agency, the third party is shielded from Section 111 liability. This prevents a “floodgates” scenario where every organisation that complains about an employee’s behaviour could be sued alongside the employer.
The case highlights the increasing frequency of “belief versus belief” conflicts. Because both gender-critical views and trans-inclusive views are protected under the Equality Act, employers are now on notice that they must navigate these disputes with strict neutrality, as ‘picking a side’ during a disciplinary process is likely to be found discriminatory.
