Discrimination & Victimisation Finding Regarding Gender Critical Views

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Discrimination & Victimisation Finding Against Garden Court Chambers Regarding Allison Bailey’s Gender Critical Views

Key Contact: Claire Knowles

Author: Saskia Musacchio

Against a backdrop of rising gender politics in the media, the Claimant, a barrister and activist, brought proceedings primarily against her chambers, Garden Court Chambers Ltd (Garden Court) and each of its 120 individual barristers (Tenants) for directly and indirectly discriminating against her and victimising her for holding a ‘gender critical belief’. The belief to which the Claimant subscribes is that a woman is defined by her biological sex and not by her gender, which is believed to be a socio-cultural construction. This is a protected belief in accordance with the Equality Act 2010 (EA).

The Law

Although barristers are self-employed persons, the EA affords them protections against discrimination and victimisation which leads to them being denied opportunities, being pressured to leave chambers, or otherwise suffering a detriment.

The Facts

In November 2018, Garden Court announced they had signed up to Stonewall’s Diversity Champions scheme. Stonewall is a charity with a mission in particular to advance the rights of transgender people. The Claimant identifies as a lesbian and a feminist and has been involved in setting up an Alliance to resist transwomen self-identifying as women. Upon receiving this announcement, the Claimant complained to Garden Court. Specifically, her concerns were informed by her gender critical belief; she raised worries that Stonewall had been complicit in encouraging a campaign of intimidation against anyone who opposes its trans self-ID ideology, specifically lesbians and feminists. The Claimant argued that due to making this complaint, she was given less work, which caused her to receive less income.

The Claimant was very active on Twitter but expressly included the following sentence on her page “own views not that of @Gardencourt law”.  The Claimant tweeted a number of tweets pertaining to her gender critical beliefs. Following this, Garden Court received complaints from the public, including Stonewall, who had seen the various tweets. As a response, Garden Court published a statement that the Claimant was under investigation. Garden Court’s investigation revealed two of the Claimant’s tweets were likely to offend the Bar Standards Board (BSB) Code. The Claimant contended that (i) it was detrimental to allege that the complaints needed investigation; and (ii) she was not in breach of the BSB Code and so Garden Court’s conclusion was incorrect. She argued Garden Court’s statement “made public entirely private human resources declarations and put her professional standing in jeopardy as well as her safety”. In further investigating the issue, Garden Court sought advice from the Bar Council Ethics Committee but did not provide the Claimant’s response for them to consider. Garden Court upheld their original conclusion that two of the Claimant’s tweets were likely to offend the BSB Code, and ordered the Claimant to remove them. Garden Court also upheld Stonewall’s complaint.

The Claimant alleged she had faced detrimental treatment from Garden Centre for finding that her two tweets were likely to offend the BSB Code, as well as deciding to uphold Stonewall’s complaint.

The Findings

Although the Tribunal dismissed the Claimant’s main claim of victimisation resulting in a loss of earnings, the Tribunal found that Garden Court discriminated against the Claimant because of her gender critical belief when it published a statement that the Claimant was under investigation and upheld Stonewall’s investigation against her. 

The Tribunal also concluded that the Claimant was victimised due to her ‘gender critical belief and her belief about Stonewall’s promotion of gender self-identity encouraging and being complicit in hostility to gender critical feminists’.  The Tribunal found that this considerably affected the finding that her tweets were “likely” to breach the BSB Code.  Resultantly, Garden Court and its tenants were ordered to pay £22,000 compensation for injury to feelings, plus interest of £4,693.33.

With the meteoric rise of gender politics and social media sites like Twitter enabling employees to exercise their freedom of speech on controversial topics, this case shows how difficult it can be for employers to navigate. Although this case is very specific in its facts, it serves as a reminder to employers not to treat an employee less favourably because they hold a protected belief. It also highlights that any investigation carried out by the employer must be fair and reasonable, to avoid incurring potential liability under the EA.

If you have any queries or would like any assistance regarding these issues, please feel free to contact a member of the employment team.

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