Doyle Clayton client Allison Bailey granted permission by the Court of Appeal

The Court of Appeal has granted permission to hear the appeal brought by Allison Bailey in her claim against Stonewall.

The claim centres on section 111 Equality Act 2010. This legislates against organisations instructing, causing or inducing acts of discrimination.

Ms Bailey alleges that Stonewall breached section111 when in 2019 its employee wrote to Garden Court Chambers, the barristers’ chambers of which she was then a member. In that email, the Stonewall employee wrote that “for Garden Court Chambers to continue associating with [Ms Bailey] puts us in a difficult position with yourselves” and that Stonewall trusted Garden Court “would do what is right and stand in solidarity with trans people.” Ms Bailey argued that this was an attempt by Stonewall to induce, cause or induce acts of discrimination against her by Garden Court, on the basis of her gender-critical belief.

Following a high profile trial which lasted several weeks, in 2022 Ms Bailey succeeded in her discrimination claim against Garden Court, who were ordered to pay damages and aggravated damages to her as a result. Garden Court were also subsequently ordered to pay costs to her.

Ms Bailey was not however successful at the Employment Tribunal in her claim against Stonewall under section 111. On Ms Bailey’s instruction, Doyle Clayton appealed that decision to the Employment Appeal Tribunal, which upheld the original decision of the Employment Tribunal. At Ms Bailey’s further instruction, permission was then sought from the Court of Appeal to appeal the EAT decision. That permission has now been granted by the Court of Appeal, and a hearing will follow to determine whether the EAT decision was correctly reached.

In granting permission, Rt Hon Lord Justice Singh found that the grounds of appeal lodged on Ms Bailey’s behalf:

“have a real prospect of success but, in any event, raise issues of some general importance which should be considered by this Court. In particular, an issue arises as to the correct interpretation of section 111 of the Equality Act 2010 which does not seem to be the subject of previous authority. There is therefore a compelling reason to grant permission to appeal.”

Permission is not readily granted by the Court of Appeal, and is only granted where there is a real prospect of success, or there is some other compelling reason for the case to be heard. Ms Bailey’s appeal has therefore succeeded under both headings. The permission test contrasts with the more permissive test in the Employment Appeal Tribunal where there must only be an arguable error of law in the decision under appeal.

A comment from Doyle Clayton

Ms Bailey’s solicitor Peter Daly, a partner at Doyle Clayton, said:

“We are pleased that permission has been granted in terms which satisfy both of the alternative tests for permission.

“There is currently a lack of caselaw about section 111 Equality Act 2010, a provision which has potentially significant implications, and we look forward to driving the law forward in this area.

“Our case has always been that the email sent by Stonewall satisfied the requirements of section 111 and was therefore unlawful. We look forward to making that case before the Court of Appeal and are optimistic as to the result.”

A date for the appeal hearing is awaited, but the appeal is not expected to be heard in the first half of 2025. Doyle Clayton continues to instruct Ben Cooper KC, who has represented Ms Bailey since her original Tribunal claim, as Ms Bailey’s barrister.

Further information:

Original judgement

The Employment Appeal Tribunal decision

Commentary on the EAT decision