An Employment Judge ruled against an application by Garden Court Barrister’s Chambers and Stonewall to throw out a discrimination case brought by lesbian barrister, Allison Bailey. The 14th February ruling sets the stage for a trial in June with potentially far reaching implications for the Chambers and Stonewall; particularly so in respect of the charity’s “Diversity Champions’” scheme.
The claim arises following a December 2018 email in which Bailey objected to her chamber’s participation in the Diversity Champions’ scheme and the tension between her own “gender critical” views and Stonewall’s embrace of a “gender identity” position. Her case is that members of her own chambers close to Stonewall colluded with the charity in bringing a complaint against her which Garden Court went on to uphold. She further alleges her work allocation declined substantially in the wake of the ensuing tensions, some of which spilled over into social and mainstream media particularly following her involvement in the founding and launch of the LGB Alliance in October 2019, (An organisation with broadly diametrically opposed views to Stonewall on the question of gender identity).
Stonewall and Garden Court sought to have the claims “struck out” at the hearing, an application in law which allows the court to dismiss cases, or parts of cases, before they reach trial where they are shown to have “no real prospect of success”. This mechanism is designed to weed out weak claims that are misconceived in law or not made out on the evidence in a hearing where the Judge considers the papers and arguments from lawyers (rather than hearing from the witnesses which happens at the trial).
Stonewall and Garden Court sought strike outs on a variety of different grounds ranging from insufficiency of evidence to more technical points of law regarding the complex underpinning employment and equality legislation. Ruling against them, Judge Stout found that the evidence disclosed an arguable case on the detriments involving Garden Court and that parties within the chambers were associated and/or communicating with Stonewall at the relevant time. Dealing with Stonewall the Judge found that: “The Stonewall complaint of 31 October 2019 in itself plainly seeks to put pressure on Chambers to take action against the Claimant, indeed to the extent of urging Chambers to remove the Claimant from Chambers, and accompanies that with a threat about the ongoing relationship between Chambers and Stonewall itself if Chambers does not take action”. Stonewall and Garden Court also failed in similar applications for “deposit orders”, a mechanism that permits the court to order a claimant with a generally weak (but not unarguable) case pay a sum if they wish to proceed with it.
It should be emphasised that this was a preliminary hearing, much remains to emerge in terms of evidence and the parties continue to disclose documents to one another, so it’s unwise to form any concrete conclusions about what may or may not happen at trial from it.
The matter is now set for an 8 day hearing in June where the precise relationship between Stonewall and Garden Court will be subject to a forensic examination in a trial where the precise reach of the Diversity Champions’ Scheme and Stonewall’s Trans Advisory Group are likely to feature heavily. Irrespective of the outcome, the ruling in this case is likely to have enormous implications for Stonewall and other charities offering various accreditation schemes to businesses in return for adhering to certain requirements and policies.
Dennis Kavanagh is a legal commentator and barrister (non-practising).