Equality case law roundup: Bailey, Sutcliffe and Orwin

It has been a busy two weeks for equality and discrimination lawyers, with three recent judgments (one from the Employment Tribunal, one from the Employment Appeals Tribunal, and one from the High Court) adding to the body of decisions in this hotly contested area of law and policy. Here, we summarise the decisions and consider (in the case of Orwin) the lessons offered for organisations navigating these issues.

Bailey v Stonewall and others: causing and inducing discrimination by someone else

The background

This Employment Appeals Tribunal (EAT) appeal arose out of Allison Bailey’s well-publicised successful claim against her chambers (‘Chambers’) for discrimination on the grounds of protected gender-critical beliefs. Chambers was held to have discriminated against Ms Bailey by partly upholding a complaint by a representative of Stonewall about her activity on Twitter (now known as X). Ms Bailey also claimed that Stonewall had either ‘caused’ or ‘induced’ Chambers’ discriminatory acts, both of which are contrary to section 111Equality Act 2010 (‘EqA’). That part of her claim failed, and she appealed to the EAT.

The EAT’s judgment provides welcome guidance on the application of these sections of the EqA, about which there has been relatively little judicial guidance. Dismissing the appeal, Bourne J held that:

• For a person (A) to have ‘induced’ the discriminatory act of another (B), A must intend for B to do what they are being induced to do: in other words, A must intend that B should do something in contravention of the protections in the EqA. Ms Bailey fell well short of showing that Stonewall had any such intention when it made the complaint.

• Similarly, for a person (A) to be liable for having ‘caused’ the discriminatory act of another (B), A must not only have factually caused B’s act (in that it would not have happened if A had not done something to cause it): the connection between A’s conduct and B’s discriminatory act must also be such that A ought fairly to be held liable. This might be the case if, for example, A knew and intended that what they were doing would cause the discriminatory act to take place. That was not the case here, and there was no other reason why holding Stonewall liable for causing Chambers’ discriminatory act would have been fair. While Stonewall had made the complaint, they were not responsible for the fact that Chambers had dealt with it in a discriminatory way: that responsibility lay solely with Chambers themselves.

Accordingly, Ms Bailey’s appeal was dismissed. It remains to be seen whether she will appeal further.

Orwin v East Riding of Yorkshire Council: personal pronouns and protected manifestation of belief

The background

The claimant in this Employment Tribunal claim was an ICT Project Officer at the respondent council. He was invited by the council’s Chief Executive (in an all-staff email) to “consider adding pronouns to your email signature, should you wish to do so”. The email acknowledged that this was a matter of individual choice, but that staff should know this choice was available to them and that they would be supported in it. The email linked to various guidance on the use of personal pronouns.

The claimant viewed this email as an attempt to “facilitate gender self-identification” and that the policy allowing employees to add preferred pronouns to their email signatures was a “political position” which the council had adopted without adequate scrutiny or consideration. In response to the email, the claimant adopted an email footer which gave “XY-chromosome-guy/adult-human-male” as his ‘preferred pronouns’. He received management instructions to remove this email footer, but repeatedly refused, and was ultimately dismissed.

The core legal issue: manifestation

The claim hinged on whether the claimant’s email footer was a protected ‘manifestation’ of his protected gender-critical beliefs. Not every act which is inspired, motivated or influenced by a protected belief will itself be protected. There must be a close, intimate causal link (or ‘nexus’) between the act and the belief for the act to be protected.

The Tribunal concluded that there was no sufficiently intimate link between the act and the belief in this case. The claimant had not, as he suggested, adopted preferred pronouns as “the most precise expression of [his] gender identity” or of his protected beliefs. The adoption of the email footer was an act of protest; the claimant knew it was a deliberately provocative act and he did it to try to persuade the council to change its policy. In “mocking the idea of gender self-identification”, as the Tribunal judged he was, the claimant was manifesting his beliefs in the very broadest sense, but the connection to the belief was not close enough to make the footer a protected manifestation.

Comment and practical lessons for organisations

While the claimant’s claim may not have succeeded, the Tribunal was clearly unimpressed with the council, describing its implementation of its policy as “poorly thought through and badly executed”. In particular:

• The council’s interpretation of its own policy had been confused and inconsistent. At an early stage the council had adopted the position that its policy had been to allow its staff to add preferred pronouns to their email signatures only if those pronouns appeared on a prescribed list, and otherwise not to use them at all. That was inconsistent with the language used to describe the policy, and indeed with the very idea of self-identification which the policy was supposedly intended to support.

• Various of the claimant’s line managers, in early correspondence with him, referred to the possibility that his email footer may be considered offensive. The precise nature of the offence risked, however, was not specified, and the council’s witnesses were largely unable to articulate it. Council personnel tasked with investigating the claimant’s conduct largely accepted uncritically advice given to them by the internal equalities team that the claimant’s email footer was transphobic.

• An email from a council staff member expressing concern about the claimant’s email footer was treated by the council as a ‘complaint’, but the concerns in the email were far from explicit and the Tribunal was clear that the email did not amount to a complaint on any objective standard.

We think that the council’s approach could have seen it defeated at trial in other circumstances – in this case, the clear inappropriateness of the claimant’s actions may well have given the council a lucky escape. Organisations should therefore take note of this judgment and of the key lessons:

• Where equality, equity, diversity and inclusion policies are adopted, organisations should make clear they are properly understood by those communicating and implementing them.

• Where employees’ or members’ conduct is the subject of investigation or disciplinary action on the grounds that it may cause offence or distress to others, organisations should be able clearly to articulate why this is.

• It is worth ensuring that disciplinary and complaints policies allow an organisation to investigate and take action on matters which come to their attention, even if there has been no formal complaint.

Sutcliffe v Secretary of State for Education: misgendering decision upheld

Finally, in another high-profile case involving personal pronouns, the High Court has upheld a decision by the Secretary of State for Education to prohibit Mr Sutcliffe from teaching in accordance with a recommendation by a professional panel of the Teaching Regulation Agency (‘TRA’).

Mr Sutcliffe, an evangelical Christian, was a maths teacher in a school whose practice was to adopt the preferred pronouns of transgender children. Various complaints were made against him, chiefly that he had repeatedly and intentionally misgendered a transgender child (not only in the classroom but later also in an appearance on the TV show This Morning) and that he had told pupils that he was against gay marriage and that certain people had “stopped being gay” through God as it was “wrong”. A professional panel of the TRA concluded that he had breached the relevant Teachers’ Standards by failing to treat his pupils with dignity or build relationships rooted in mutual respect.

Mr Sutcliffe’s appeal to the High Court was wide-ranging and rested on twelve separate grounds. The High Court was unequivocal in rejecting them all. There were two central areas of appeal:

• Firstly, Mr Sutcliffe argued that the panel had conflated the protected characteristic of gender reassignment under the EqA with “gender identity belief” and that the latter was not protected, nor was there any legal right for one’s preferred pronouns to be respected. The High Court said these arguments entirely missed the point: it was not for the panel to determine these matters. Its role was simply to determine whether he had breached the Teachers’ Standards.

• The core of Mr Sutcliffe’s appeal was that manifestations of his religiously-held gender-critical beliefs and expressions of his religious convictions were protected by Articles 9 and 10 of the European Convention on Human Rights respectively, which he said the TRA and the Secretary of State had breached in recommending and agreeing to prohibit him from teaching (Identical rights were relied upon by the claimant in Orwin, discussed above). The Court held that, to the extent the Teachers’ Standards qualified those rights, this was entirely proportionate given the importance of treating children with dignity and respect and safeguarding their wellbeing.

The crux of the matter was that while misgendering a transgender pupil might not be unlawful, this did not mean it was appropriate for a teacher to do so repeatedly and deliberately, both in class and on national television. In doing so he ‘outed’ and caused significant distress to a vulnerable child. Such conduct can plainly amount to professional misconduct, and the Court held the panel was justified in concluding that it did here.

Our team help organisations comply with their obligations (including as employers) under the Equality Act. If you would like to discuss any of the issues raised in this update, please do get in touch.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.