This article was written by Patrick McBride.
On 18 December 2025, judgment was handed down in Bailey v Stonewall Equality Ltd [2025] EWCA Civ 1662, the first case in which the Court of Appeal has considered the prohibition on instructing, causing or inducing discrimination under s111 of the Equality Act 2010 (“the Act”).
Ben Cooper KC appeared for Ms Bailey, instructed by Doyle Clayton Solicitors. Ijeoma Omambala KC appeared for Stonewall, instructed by CMS Cameron McKenna Nabarro Olswang LLP.
Procedural history
Allison Bailey, a barrister, had brought a claim against her former chambers, Garden Court Chambers (“GCC”) in the Employment Tribunal (“ET”). The ET found that GCC had discriminated against Ms Bailey because of her protected gender critical beliefs. There was no appeal against that finding.
Ms Bailey had also brought a claim against Stonewall for instructing, causing or inducing GCC to discriminate against her, in contravention of s111 of the Act. The ET found that Stonewall had not done so. The Employment Appeal Tribunal, in turn, held that the ET was entitled to find as it did. Ms Bailey appealed to the Court of Appeal.
Facts
References are to paragraphs in the Court of Appeal’s judgment.
Stonewall provided services to GCC and GCC was a member of Stonewall’s Diversity Champions Scheme, which was designed to promote inclusion for LGBT people in workplaces (§14).
In 2019, Ms Bailey posted on Twitter (as it then was) a number of comments reflecting her gender critical beliefs and her opposition to Stonewall’s position on trans issues (§16). In response to complaints about those comments, GCC announced that it had commenced an investigation (§18).
A draft report on that investigation concluded that Ms Bailey’s tweets had been neither transphobic nor in breach of professional guidance (§19). GCC’s internal investigator was then provided with an email written by Kirrin Medcalf, head of trans inclusion at Stonewall, to GCC (“the Stonewall email”). The email complained about Ms Bailey, highlighting her comments on social media, and included the following passage (§21):
…for Garden Court Chambers to continue associating with a barrister who is actively campaigning for a reduction in trans rights and equality, while also specifically targeting members of our staff with transphobic abuse on a public platform, puts [Stonewall] in a difficult position with yourselves: the safety of our staff and community will always be Stonewalls first priority.
I trust that you will do what is right and stand in solidarity with trans people.
The investigator was also provided with a number of tweets of Ms Bailey’s that were mentioned in the Stonewall email and which had not previously been investigated by GCC (§22). The investigation was reopened. Its final report concluded that Ms Bailey had likely breached her professional obligations in relation to two of the newly considered tweets (§26). GCC subsequently asked Ms Bailey to take down those tweets; she refused to do so and no further action was taken (§24).
The statute
Section 111 of the Act provides, so far as is material:
Instructing, causing or inducing contraventions
[…]
Relevant findings of the ET
Importantly, the ET found that the Stonewall email was “no more than protest” (§377 of the ET judgment, quoted at §37). Mr Medcalf did not intend anything specific to happen to Ms Bailey as a result of the email (§38).
The ET also held that the outcome of GCC’s investigation was discriminatory, constituting a basic contravention for the purposes of s111 (§26). Stonewall’s email was the “occasion for” that discrimination, in that but for the email the investigation would not have considered the two tweets it (discriminatorily) concluded were likely to have breached professional standards (§38). However, Stonewall had not caused or induced that discrimination within the meaning of s111 of the Act (§39).
The Court of Appeal’s decision
Whipple LJ gave the judgment of the Court, with which Bean And Newey LJJ agreed.
Causing (s111(2))
In terms of s111(2), Stonewall was “A”, GCC was “B” and Ms Bailey was “C”.
The correct approach to determining liability comprised two stages, as indicated in Kuwait Airways Corp v Iraqi Airways Co (Nos 5 and 6) [2002] UKHL 19, [2002] 2 AC 883. First, ‘but for’ causation is to be established; second, “the question becomes one of evaluative judgement as to whether the defendant should be liable” (§76).
In relation to the first stage, Whipple LJ accepted that ‘but for’ causation was a threshold requirement (§72). However, she also emphasised Lord Nicholls’ dictum at §73 of Kuwait Airways that the ‘but for’ test does not “provide infallible threshold guidance on causal connection for every tort in every circumstance”. In particular, it may be over-exclusionary, especially where more than one wrongdoer is involved (§61).
The second stage involves the evaluation of whether it would be fair, just or reasonable to hold A liable. However, “that evaluation is not open-ended, rather it requires focus on the various legal labels (or concepts or filters – those terms are used interchangeably in the case law) by which liability may be limited” (§79). Those labels include novus actus interveniens, which can apply with regard to s111(2) (§80).
Factors to take into account at the second stage include:
In this case, the Court interpreted the ET as having legitimately relied on novus actus interveniens to decide that Stonewall ought not to be held liable (§81). Given its finding that the Stonewall email was no more than a protest, the ET was also entitled to find that Stonewall had not attempted to cause a basic contravention under s111(8) (§84).
Inducing (s111(3))
The Court held that inducing “involves, at the very least, some element of deliberate conduct” and as such presents a higher hurdle than causing (§89). It was therefore difficult to see how Ms Bailey could succeed on this ground when her case under s111(2) had failed. In any event, the s111(3) case was untenable in light of the ET’s factual findings (§89).
Comment
This is the first Court of Appeal decision on s111. It provides useful guidance on the operation of a provision that may appear particularly relevant in the context of polarised public debate and efforts by some partisans to ‘deplatform’ or otherwise cause detriment to their opponents. The reach of the provision in that context is limited by the requirement under s111(7) concerning the relationship between A and B. By contrast, the general reach of the provision is amplified by the inclusion of ‘attempts’ under s111(8) and by its applicability to discrimination relating to all protected characteristics.
The Court’s reasoning is also likely to be relevant to questions of causation in other statutory torts, and to the interpretation of ‘inducement’ more widely.
Finally, the case hints at questions that may arise in future litigation. For example, it is noted at §41 that the Stonewall email was prompted by beliefs that are themselves protected under the Act. It is easy to envisage circumstances where arguments might be made as to the compatibility of imposing liability under s111 with Article 9 or 10 ECHR.
The judgment can be read here.
