And speaking of work ethics brings me to work and ethics, and the somewhat confusing case of Bailey v Stonewall Equality Ltd and Others 2024, in which the Employment Appeal Tribunal considered whether an employee had been discriminated against by a third party on the grounds of her gender-critical beliefs.

Ms Bailey was a criminal law barrister, located at Garden Court Chambers (GCC). In 2018, GCC signed up to Stonewall’s “Diversity Champions” scheme, which was aimed at developing inclusive workplaces and tackling discrimination. Stonewall is a charity which stands for the rights of LGBTQ+ people.

Once GCC joined the scheme, Ms Bailey sent an email objecting to this and stated that although she fully supported trans rights, she did not wish to associate herself with “the trans-extremism that is currently being advocated by Stonewall”. Ms Bailey then went on to post tweets, expressing her opinion on the matter, which received significant attention.

As a reaction, Stonewall complained to GCC about Ms Bailey’s tweets, stating they were discriminatory and unjust. On investigating this complaint, GCC found that the tweets likely breached the Bar Standards Board (BSB) Guidelines, and Ms Bailey was subsequently asked to delete the tweets. 

Ms Bailey then bought a claim to the Employment Tribunal for religion or belief discrimination against GCC and Stonewall.

The ET found in favour of Ms Bailey in her claims against GCC. The ET held that Ms Bailey’s gender critical belief was a belief that was protected under the EqA and that GCC had directly discriminated against Ms Bailey under the protected characteristic of belief in relation to the investigation carried out and the outcome. Additionally, the ET stated that GCC had acted contrary to section 47 of the Equality Act 2010 (the EqA) which states that it is unlawful for a barrister/barrister’s clerk to discriminate against, harass, or victimise a pupil in a barrister’s chambers. 

However, Ms Bailey’s claim against Stonewall failed. Ms Bailey had claimed that Stonewall caused GCC’s discriminatory acts against her. However, the ET said that “alleging that Stonewall directed the complaint process was a conspiracy theory”. 

As a result of this, Ms Bailey appealed this decision to the EAT stating that Stonewall’s complaint was in breach of section 111 of the EqA (which states it is unlawful to instruct, cause or induce someone to discriminate against another). 

The EAT clarified that the key question was not whether the unlawful outcome of GCC’s investigation was reasonably foreseeable, but whether it is “fair, reasonable, or just” to hold Stonewall liable for causing it. Based on this, the EAT held that Stonewall’s complaint was not made to inflict detriment onto Ms Bailey, it was merely lodged as a complaint and this did not correspond with section 111 of the EqA. Ultimately, the EAT held that it was only GCC who then took it upon themselves to carry out an investigation which had a discriminatory outcome, not Stonewall. Therefore, the EAT dismissed Ms Bailey’s appeal.

This case highlights the complexities of discrimination on beliefs in the workplace and the influence of third parties. It reaffirms that while religion or belief is a protected characteristic under the EqA, a complaint about someone's belief does not automatically amount to direct discrimination unless there is intent to cause detriment. Additionally, if an employer imposes a detriment on an employee following such a complaint, they may still be liable for discrimination, even if the complaint originated from a third party. 

This case also clarifies that a third party cannot be held liable for an employer’s actions unless it can be shown that the third party exerted unlawful pressure or directly contributed to the detriment. Ultimately, this case underscores the need for employers to handle complaints about employees' beliefs carefully, ensuring that their processes are lawful and non-discriminatory.