The Court of Appeal discussed the test for whether a person “caused” discrimination by another, so as to be liable under s.111(2) Equality Act 2010 (EqA). The court said that once “but for” causation is established, the tribunal has to decide whether it is fair or just or reasonable to find the person liable, with a focus on various legal labels such as (in this case) whether there was a new intervening cause. “Inducing” under s.111(3) presented a higher hurdle than “causing”.
[2025] EWCA Civ 1662, Court of Appeal. Full Court of Appeal decision www.bailii.org/ew/cases/EWCA/Civ/2025/1662.html. Also EAT decision.
Summary
The claimant was a barrister. Stonewall and others complained to her chambers (GCC) about “gender-criticial” tweets by her. Her view that whether someone is a woman is based on biological sex, and not on whether one identifies as such, were a protected belief within the EqA.
An investigation by GCC found that two of the claimant’s tweets were likely to breach Bar Standards Board core duties.
The employment tribunal (ET) held that this outcome of the investigation amounted to direct discrimination against her by GCC because of her protected beliefs, and also victimisation by GCC, in breach of the EqA. That was not appealed.
The claimant argued that Stonewall too was liable, under s.111 EqA, in that through its complaint to GCC, it caused or induced the discrimination and victimisation by GCC, or attempted to do so (Instructing or causing discrimination, or helping it).
The Court of Appeal upheld the ET’s decision rejecting the s.111 claim against Stonewall. As to factual background, the ET had found that the Stonewall complaint was not motivated by any desire for action to be taken by GCC against the claimant, and was not relevant to the discriminatory outcome of the investigation by GCC.
On whether Stonewall “caused” the discrimination within s.111(2), the Court of Appeal held that the ET was – on the facts found by it – entitled to decide that GCC’s actions and omissions in the course of its investigation (below My comments>Causal link) broke the chain of causation between Stonewall’s complaint and the discrimination suffered by the claimant. Similarly Stonewall had not attempted to cause the discrimination.
Also Stonewall had not “induced” the discrimination within s.111(3). It was difficult to see how the claim for inducement could succeed where the claim for causing had failed. Causing discrimination presented a lower hurdle than inducing – which involves, at the very least, some element of deliberate conduct.
Facts
The claimant was a barrister at Garden Court Chambers (GCC). GCC was a member of Stonewall’s Diversity Champions Scheme. Also GCC’s premises were used for “round table” meetings of trans organisations.
The claimant believed that a woman is defined by biological sex, not by whether they self-identify as such. This was a protected belief within s.10 EqA (Forstater v CGD Europe (EHRC website)). Tweets by the claimant on trans rights issues led to tweets and complaints about her to GCC, including one from Stonewall.
Stonewall complained to GCC about 11 of her tweets. It said that for GCC to continue associating with a barrister who actively campaigned for a reduction in trans rights, and publicly targeted Stonewall staff with transphobic abuse, put Stonewall in a difficult position with GCC. Safety of Stonewall’s staff and community would always be its first priority. It trusted that GCC would “do what is right and stand in solidarity with trans people” (§21).
An investigation by GCC found that two of the claimant’s tweets were likely to breach Bar Standards Board (BSB) core duties. That was not what the Bar Council Ethics Committee had advised GCC (§22-24).
Employment tribunal (ET) decision
The ET held that GCC was liable for discriminating against and victimising the claimant (see next paragraph). However, the ET rejected her claim against Stonewall, that Stonewall had instructed, caused or induced discrimination and victimisation by GCC contrary to s.111 EqA (Instructing or causing discrimination, or helping it). The appeal to the Court of Appeal related only to her s.111 claim against Stonewall.
So far as relevant to the s.111 claim, the ET held that the outcome of GCC’s investigation was direct discrimination and also victimisation by GCC. The outcome was because of – in the sense of significantly influenced by – the claimant’s protected beliefs, and so was direct discrimination. The outcome was also materially influenced by the two tweets, which the ET had found to be protected acts within s.27 EqA (victimisation).
However, the ET held that Stonewall was not liable under s.111 EqA as it had not instructed, caused or induced the discrimination and victimisation, nor had it attempted to do so.
As to “causing”, it was true that in a “but for” sense, without Stonewall’s complaint GCC’s investigation would have been limited to an original batch of tweets (which GCC considered acceptable), and not the two on which GCC found against the claimant. However, Stonewall’s complaint was only the “occasion for” the outcome of GCC’s investigation.
As to whether Stonewall’s complaint was an attempt to cause discrimination etc, the ET said it was “no more than protest, with an appeal to a perceived ally in a ‘them and us’ debate”.
Court of Appeal decision
The Court of Appeal held that the ET was entitled to decide that Stonewall was not liable under s.111.
Regarding the facts on which this was based, the Court of Appeal said the ET had found that the Stonewall complaint was not motivated by any desire for action to be taken by GCC against the claimant, and was not relevant to the discriminatory outcome of the investigation by GCC (§47).
Court of Appeal: “Causing” within s.111(2)
“Causing”: Generally
S.111(2) EqA says that a person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention (Instructing or causing discrimination, or helping it). Here Stonewall would be A, GCC would be B, and the claimant would be C. So did Stonewall cause GCC to reach the discriminatory outcome of its investigation?
A key issue was the meaning of “cause” here. The Court of Appeal essentially applied the twofold test set out in a tort case, Kuwait Airways (§61 and §79), also citing a similar passage in Hughes-Holland (§66). The court said there (normally) needs to be “but for” causation (ie the discrimination would not have happened but for A’s actions). If this is established, the question is whether, having regard to the statutory context and all the facts, it is fair or just or reasonable (the epithets are interchangeable) to find the defendant liable. At this second stage, the evaluation is not open-ended, but 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. Quoting from the Kuwait Airways case:
The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause, or because the loss was the product of an intervening cause. The defendant’s responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this.
Kuwait Airways Corp v Iraqi Airways Co (Nos 5 and 6) [2002] UKHL 19 at §70, cited by the Court of Appeal in §61 of Bailey v Stonewall.
Accordingly one of the factors is intervening cause (novus actus interveniens), which the Court of Appeal saw the ET as having applied in this case (§71, §81, and see below).
The Court of Appeal also said that foreseeability of damage – whether of the precise damage sustained or damage of that sort – was plainly a relevant factor to take into account in the evaluation, but was not a precondition for liability (§78). The Court of Appeal cited a race discrimination case, Essa v Laing [2004] EWCA Civ 2, where the court saw torts such as negligence and nuisance (for which foreseeability of the harm is required) as different from the direct discrimination by racial abuse in the face of the victim in Essa, which was more akin to the torts of assault and battery (§§63-64).
The Court of Appeal also said that person A (the person argued to be “causing”) need not be motivated by the protected characteristic (belief, in this case) in order to be liable under s.111(2). Unlike direct discrimination, s.111(2) does not say that A’s actions must be “because of” the protected characteristic. However, A’s “intention, motivation or reason for acting (including whether they are influenced by another’s protected characteristic(s) or act(s)) is a matter to be taken into account at the second stage of the analysis, as part of the evaluation of whether that person should be liable” (emphasis by me). The court accepted that it was “difficult to envisage liability being established without some mental element connecting [A’s] acts with the claimant’s protected characteristic or act”. (§75)
The Court of Appeal also referred to Bullimore as a discrimination case (not on s.111) where the claimant suffered loss as a result of the combination of two wrongful acts: one employer giving a damaging reference for a prescribed reason, and another withdrawing its job offer following receipt of that reference. It was easy to see why, in that case, the court thought both defendants should be held responsible – the actions of both materially contributed to the detriment, and both acts of discrimination were effective causes of the detriment suffered. (§65, §83)
An illustration of where strict “but for” causation is not required seems to be the example in §74 of the quote at §61 – where each of two persons independently searching for the source of a gas leak with the aid of lighted candles could be liable for damage caused by the resulting explosion.
“Causing”: Application to this case
The ET in the present case had held that the discriminatory outcome of GCC’s investigation would not have come about “but for” Stonewall’s complaint to GCC, but that this complaint was “the occasion of the report, no more”. The Court of Appeal said the ET meant that the dominant and effective cause of the discriminatory outcome was GCC’s investigation, not anything done by Stonewall. So Stonewall was not liable. This fitted with the ET’s findings that Stonewall did not want action to be taken against the claimant, and had nothing to do with GCC’s investigation or the outcome of it (§70-§71).
There were a variety of legal routes to this conclusion, said the Court of Appeal (eg remoteness of damage), but far and away the most obvious was novus actus interveniens (new intervening cause) – ie that GCC’s actions and omissions in the course of the investigation broke the chain of causation (§71, §81).
The Court of Appeal confirmed that novus actus interveniens can apply here. Just because s.111(2) EqA envisages a situation where A is liable for causing B’s basic contravention towards C, it does not follow that B can never be held to bear sole responsibility for that basic contravention. It depends on the facts. The Court of Appeal held it was open to the ET to conclude that the acts of GCC broke the chain of causation between Stonewall’s complaint and the discrimination suffered by the claimant. (§80)
The ET had identified the various actions of GCC which led to the relevant detriment, and found that those were actions attributable to GCC alone. It characterised the Stonewall complaint as the occasion for those failings, no more. This was a coherent conclusion by the ET that the causal potency or efficacy of Stonewall’s actions was eclipsed by GCC’s actions. The Court of Appeal had interpreted this as a finding of novus actus interveniens. (§81).
Also the ET was entitled to find that Stonewall had not attempted to cause a basic contravention (s.111(8) read with s.111(2) EqA), given that – on the facts found by the tribunal – Stonewall’s complaint was merely a protest, no more.
Court of Appeal: “Inducing” within s.111(3)
It was common ground that inducement means persuading or prevailing upon or bringing about: see CRE v The Imperial Society of Teachers of Dancing [1983] ICR 473. (§85)
The Court of Appeal again upheld the ET decision that Stonewall had not “induced” discrimination by GCC. The claimant’s argument that Stonewall acted with the intention that action should be taken against her did not get off the ground, in the light of the ET’s findings of fact – that Stonewall was not looking for any specific action by GCC against the claimant. (§88)
Further and in any event, it was difficult to see how the claimant could succeed in her appeal on inducement where her case under s.111(2) (causing) had failed. The Court of Appeal said, “Causing discrimination presents a lower hurdle than inducing which involves, at the very least, some element of deliberate conduct.” (§89)
The claimant’s argument that Stonewall had attempted to induce failed for similar reasons. The basic elements of inducement, whether as an attempt or the completed act, were not established on the facts. (§90)
My comments
Causal link
The fact that B discriminated does not as such break the link between A’s actions and the discrimination. However, the Court of Appeal said that just because s.111(2) envisages a situation where A is liable for causing B’s discrimination towards C, it does not follow that B can never be held to bear sole responsibility for that discrimination (§80). So novus actus interveniens (new intervening act), like other labels – or concepts or filters – by which liability may be limited, is available in the tribunal’s evaluation of whether it is fair to find A liable.
The employment tribunal’s (ET’s) reasoning on this issue was very short. However, from the Court of Appeal judgment, relevant factors in this case seem to have included the following:
- Stonewall’s intention in making its complaint (§75): the Court of Appeal said the ET (which hears the evidence and is responsible for determining the facts) had found that Stonewall’s complaint was not motivated by any desire for action to be taken by GCC against the claimant, and was not relevant to the discriminatory outcome of the investigation by GCC (§47)
- The ET had identified three “problems” with the way GCC handled its investigation (§26):
- (1) the fact that CM from the Bar Council Ethics Committee, who was asked for advice by GCC, was never sent the claimant’s response setting out her explanation of the two tweets
- (2) SH, the co-head of GCC (who had already demonstrated opposition to the claimant’s views), suggesting that the statement in the investigator’s draft report that there was a “risk of” breach of professional obligations be changed to saying that the two tweets were “likely” to have breached professional obligations (§24)
- (3) the disapproval by the investigator and other senior members of GCC of the claimant’s beliefs, which led them to conclude that she had, or was likely to have, breached her professional duties.
The Court of Appeal said:
81. … The ET identified the various actions of GCC which led to [the relevant detriment] and found that those were actions attributable to GCC alone. It characterised the Stonewall complaint as the occasion for those failings, no more. This was a coherent conclusion that the causal potency or efficacy of Stonewall’s actions was eclipsed by GCC’s actions. I have interpreted that as a finding of novus actus interveniens. The ET conducted the exercise required of it in a lawful manner.
See further Instructing or causing discrimination, or helping it>”Instruct”, “cause”, and “induce”. Also that link outlines some of what the EAT in this case said about “induce” and “instruct”.
Required relationship within s.111(7)
Under s.111(7) a precondition for s.111 to apply is that the person inducing etc (A) must be in a relationship with the person being induced (B) in which discrimination etc is prohibited. It was undisputed in this case that Stonewall and GCC had the requisite relationship, because Stonewall was a service provider to GCC: Instructing or causing discrimination, or helping it>S.111(7): relationship between inducer and inducee.
How was claimant within EqA employment provisions?
Barristers are not generally employed by their chambers.
However, a barristers chambers can be a trade organisation within s.57 EqA, in Part 5 (Work). See Employees, workers and beyond>Barristers, and para 34 of the Bailey ET decision (pdf, gov.uk).
Link on my website
External link
- The butterfly effect curtailed: causing discrimination in Bailey v Stonewall (linkedIn.com), Cloisters Chambers, Feb 2026.
