“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
“(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.” (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.”
“Instructing, causing or inducing contraventions (1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3,4,5,6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention). (2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention. (3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention. (4) For the purposes of subsection (3), inducement may be direct or indirect. (5) Proceedings for a contravention of this section may be brought – (a) by B, if B is subjected to a detriment as a result of A’s conduct; (b) by C, if C is subjected to a detriment as a result of A’s conduct; (c) by the Commission. (6) For the purposes of subsection (5), it does not matter whether – (a) the basic contravention occurs; (b) any other proceedings are, or may be, brought in relation to A’s conduct. (7) This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B. (8) A reference in this section to causing or inducing a person to do something includes a reference to attempting to cause or induce a person to do it. (9) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating – (a) in a case within subsection (5)(a), to the Part of this Act which, because of the relationship between A and B, A is in a position to contravene in relation to B; (b) in a case within subsection (5)(b), to the Part of this Act which, because of the relationship between B and C, B is in a position to contravene in relation to C.” (a) by B, if B is subjected to a detriment as a result of A’s conduct; (b) by C, if C is subjected to a detriment as a result of A’s conduct; (c) by the Commission. (a) the basic contravention occurs; (b) any other proceedings are, or may be, brought in relation to A’s conduct. (a) in a case within subsection (5)(a), to the Part of this Act which, because of the relationship between A and B, A is in a position to contravene in relation to B; (b) in a case within subsection (5)(b), to the Part of this Act which, because of the relationship between B and C, B is in a position to contravene in relation to C.”
“Garden Court barristers have always been allies to trans people and to Stonewall, which is something we are very proud and grateful for. However, 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 us 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. Thank you in advance for your time and consideration on this issue.”
“360. Of the mental element required, where the basic contraventions themselves require a mental element (as in direct discrimination and victimisation) then the tribunal must find that A’s reason for its instruction, inducement, causing, or attempts to induce or cause conduct that would amount to a basic contravention were significantly influenced by the claimant’s protected characteristic (here, belief), even if that was not the motive, or was not the conscious reason. 361. Any conduct amounting to instructing, causing or inducing, or attempting the latter two, must result in C being subjected to detriment, even if no basic contravention occurred – section 111(5). …”
“364. The conduct on which the claimant relies is set out in paragraph 15 of the list of issues. The first five are matters arising in the conduct of the Diversity Champion scheme, already discussed. The next group are the actions of Shaan Knan and Alex Drummond on 25 October (6-8,10) asking for messages of support to be sent to Garden Court, and sending their own messages to Garden Court (13), and Shaan Knan’s messages to Michelle Brewer on 24 October and 6 November (11,12). Stonewall denies liability for any action of Shaan Knan and Alex Drummond. Finally the claimant relies on the Kirrin Medcalf’s response to Shaan Knan’s message on the wall (9), and his complaint to Garden Court on 31 October (14).”
“367. We next address Kirrin Medcalf’s complaint on behalf of Stonewall - (9) and (14). As Head of Trans Inclusion he objected to the claimant on a number of grounds: (a) transgendering [sic] in various of the claimant’s tweets, including Morgan Page, a member of staff (b) attacks on trans people’s rights to access to women’s prisons and hospital wards (c) aligning Stonewall with extremism, intimidation and inflaming the debate (d) chairing meetings of Women’s Place, a ‘hate group’. 368. It is obscure what he wanted to achieve or Garden Court to do. The claimant sees the statement that continued association with her put them in a difficult position as a threat that she should be expelled if Stonewall was to continue its relationship with Garden Court. This is certainly one reading. Kirrin Medcalf said it was about the safety of staff if they were to continue working with Garden Court. This is not clear from his email, but is consistent with the protest about “targeting our staff with transphobic abuse” on a public platform, and to “the safety of our staff and community” being their priority. Kirrin Medcalf explained that his staff safety as his purpose in writing the email in a little more detail. He is himself trans. Transwomen are apprehensive of being challenged in a hostile way by natal women if they use female toilets. They are often objects of violence. He did not say whether the violence came from women or men. He did attend a further meeting at Garden Court a month later, on prison policy, and decided that to mitigate the risk of challenge he would not arrive early, would attend with a cis-male colleague, and would not wear anything that associated him with Stonewall. But if mitigation of risk was his purpose in writing the complaint email, we considered it will have been wholly obscure to the recipients. Other than the final mention of safety, this concern could not be detected. Agreeing that he had not given any detail of his safety concern or what would mitigate any risk, he said in evidence that he had thought they would get back to him about it and they could have a discussion. To our minds however it was implausible that what he wanted was a discussion of arrangements for access to female toilets, or he would have said so. 369. Challenged on why he was not more specific about what he wanted, he said he had “had his advocacy hat on”, which we understand to mean that he was writing to protest about her views (stated to come from a member of Garden Court) and put the case for transgendered people. In other words, he wrote without any specific aim in mind except perhaps a public denial of association with her views. 370. He denied it was a response to the Sunday Times article on 27 October, saying he did not read the paper, and in any case that kind of abuse of Stonewall was a normal media perception. A clipping of the article was however shown in one of the tweets he complained about, and was considered relevant by Maya Sikand. 371. Asked about the delay between drafting the email on 28 October and sending it on the 31 October, he agreed that it was inconceivable that he would send a complaint in the name of Stonewall after only 5 weeks in the job without some input from a supervisor, but had no recollection of specific supervision. There is a supervision note of 30 October with Laura Russell, which mentions an email, but not the subject matter. 372. It is less likely he had in mind any formal action by chambers when he was too late for the meeting date advertised by Shaan Knan, though it is a possibility. The lack of any follow up to this complaint - it was not mentioned in the meeting with Garden Court about the scheme early in 2020 for example, even though they had had no response at all from Garden Court in two months – indicates that Kirrin Medcalf and Stonewall had not in fact been looking for any action. It was just a protest. 373. What is not present in the complaint is any reference to Garden Court being a Diversity Champion; he mentions only work by Alex Sharpe, and use of the premises for round table meetings, which relate only to individual members’ activity, not any corporate relationship. In this context, Garden Court provided voluntary services to Stonewall, not Stonewall to Garden Court; it was Stonewall that stood to lose. The email contains no instruction. If there [was] some inducement here (fear of losing Stonewall Diversity Champion status, more generally a breach of obligation to Stonewall, and some loss of brand association), it lay in the minds of Garden Court managers and Heads. It did not come from Stonewall. There was not even an attempt at inducement. It was clear from evidence that Kirrin Medcalf was alive to Stonewall’s soft power – of the Diversity Champion scheme, he said organisations liked to be associated with Stonewall “because it made them look good” – but we did not consider that the terms of his letter, which did not mention the scheme, suggested brand damage, or amounted to inducement. … 376. Was it in fact seen by Garden Court as an inducement? Only the tweets which seemed to allege criminal behaviour were taken seriously, and Stonewall had not complained of allegations of criminal behaviour in one of those. Concern about the claimant’s tweets and the BSB guidance had preceded this complaint – it came from Leslie Thomas [one of GCC’s heads of chambers] at the time of the various protests about the claimant’s launch tweet. Although both David de Menezes [head of communications and marketing at GCC] in October (before Kirrin Medcalf’s letter) and Maya Sikand when she read tweet 10, had mentioned Stonewall in the context of the claimant’s tweets, that status was not the basis of the decision to investigate these two tweets out of the many complained of. Nor did it play a part in her finding that these tweets were likely to breach core duties. At most, their reaction to an attack on Stonewall, seen as an ally, was to consider whether there were any grounds for finding the claimant in the wrong, and reaching for BSB [Bar Standards Board] social media guidance as the only candidate. That was Stephanie Harrison’s response to the claimant’s tweet 10, which Stonewall did not complain about. That did not come from Stonewall. Kirin Medcalf did not know about Bar standards or barristers’ duties. 377. As for causing, in the “but for” sense it is true that if Kirrin Medcalf had not written, Maya Sikand’s report would have been limited to the original batch referred, which she would have dismissed without investigation. The email was the occasion of the report, no more. Was the letter an attempt to cause discrimination against the claimant? We concluded that it was no more than protest, with an appeal to a perceived ally in a ‘them and us’ debate.”
“69. How, then, does one identify a plaintiff’s “true loss” in cases of tort? This question has generated a vast amount of legal literature. I take as my starting point the commonly accepted approach that the extent of a defendant’s liability for the plaintiff’s loss calls for a twofold inquiry: whether the wrongful conduct causally contributed to the loss and, if it did, what is the extent of the loss for which the defendant ought to be held liable. The first of these inquiries, widely undertaken as a simple “but for” test, is predominantly a factual inquiry. The application of this test in cases of conversion is the matter now under consideration. I shall return to this in a moment. 70. The second inquiry, although this is not always openly acknowledged by the courts, involves a value judgment (“ought to be held liable”). Written large, the second inquiry concerns the extent of the loss for which the defendant oughtfairly or reasonably or justlyto be held liable (the epithets are interchangeable). To adapt the language of Jane Stapleton in her article “Unpacking ‘Causation” in Relating to Responsibility, ed Cane and Gardner (2001), p 168, the inquiry is whether the plaintiff’s harm or loss should be within the scope of the defendant’s liability, given the reasons why the law has recognised the cause of action in question. 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 responsibilitymay 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. 71. In most cases, how far the responsibility of the defendant ought fairly to extend evokes an immediate intuitive response. This is informed common sense by another name. Usually, there is no difficulty in selecting from the sequence of events leading to the plaintiff’s loss, the happening which should be regarded as the cause of the loss for the purpose of allocation responsibility, In other cases, when the outcome of the second inquiry is not obvious, it is of crucial importance to identify the purpose of the relevant cause of action and the nature and scope of the defendant’s obligation in the particular circumstances. What was the ambit of the defendant’s duty? In respect of what risks or damage does the law seek to afford protection of the particular tort? Recent decisions of this House have highlighted the point. When evaluating the extent of the losses for which a negligent valuer should be responsible the scope of the valuer’s duty must first be identified: see Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd[1997] AC 191 . In Reeves v Comr of Police of the Metropolis[2000] 1 AC 360 the free, deliberate and informed act of a human being, there committing suicide, did not negative responsibility to his dependants when the defendant’s duty was to guard against that very act. 72. The need to have in mind the purpose of the relevant cause of action is not confined to the second, evaluative stage of the twofold inquiry. It may also arise at the earlier stage of the "but for" test, to which I now return. This guideline principle is concerned to identify and exclude losses lacking a causal connection with the wrongful conduct. Expressed in its simplest form, the principle poses the question whether the plaintiff would have suffered the loss without ("but for") the defendant's wrongdoing. If he would not, the wrongful conduct was a cause of the loss. If the loss would have arisen even without the defendant's wrongdoing, normally it does not give rise to legal liability. In Barnett v Chelsea and Kensington Hospital Management Committee[1969] 1 QB 428 the night watchman's death did not pass this test. He would have died from arsenic poisoning even if the hospital casualty department had treated him properly. Of course, even if the plaintiff's loss passes this exclusionary threshold test, it by no means follows that the defendant should be legally responsible for the loss. 73. This threshold "but for" test is based on the presence or absence of one particular type of causal connection: whether the wrongful conduct was a necessary condition of the occurrence of the harm or loss. In the Barnett case the hospital's negligence was not a necessary element in the conditions which led to the watchman's death. He would have died anyway. In very many cases this test operates satisfactorily, but it is not always a reliable guide. Academic writers have drawn attention to its limitations: see, for example, the late Professor Fleming's The Law of Torts, 9th ed (1998), pp 222-230, and Markesinis & Deacon, Tort Law, 4th ed (1999), pp 178-191. Torts cover a wide field and may be committed in an infinite variety of situations. Even the sophisticated variants of the "but for" test cannot be expected to set out a formula whose mechanicalapplication will provide infallible threshold guidance on causal connection for every tort in every circumstance. In particular, the "but for" test can be over-exclusionary. 74. This may occur where more than one wrongdoer is involved. The classic example is where two persons independently search for the source of a gas leak with the aid of lighted candles. According to the simple "but for" test, neither would be liable for damage caused by the resultant explosion. In this type of case, involving multiple wrongdoers, the court may treat wrongful conduct as having sufficient causal connection with the loss for the purpose of attracting responsibility even though the simple "but for" test is not satisfied. In so deciding the court is primarily making a value judgment on responsibility. In making this judgment the court will have regard to the purpose sought to be achieved by the relevant tort, as applied to the particular circumstances. ”
“127. My Lords, it would be an irrational system of tort liability which did not insist upon there being some causal connection between the tortious act and the damage. But causal connections can be of widely differing kinds. Sometimes the act may have been a necessary condition but followed by a voluntary human act or exceptional natural event (novus actus interveniens). Such a causal connection is usually insufficient to found liability in negligence. But in the case of certain kinds of duty, even in negligence, it will be enough. It may be sufficient to show that the act was a necessary condition, even if the subsequent voluntary act of a third party (Stansbie v Trontan[1948] 2 KB 48 ) or the plaintiff himself (Reeves v Comr of Police of the Metropolis[2000] 1 AC 360 ) was also a necessary condition. And the same may be true when liability is strict: see Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd[1999] 2 AC 22 . Sometimes the act cannot be shown to have been even a necessary condition but only to have added substantially to the probability that the damage would be suffered. But in some situations even this limited causal connection will suffice: see Bonnington Castings Ltd v Wardlaw[1956] AC 613 ; McGhee v National Coal Board[1973] 1 WLR 1 . 128. There is therefore no uniform causal requirement for liability in tort. Instead, there are varying causal requirements, depending upon the basis and purpose of liability. One cannot separate questions of liability from questions of causation. They are inextricably connected. One is never simply liable; one is always liable for something and the rules which determine what one is liable for are as much part of the substantive law asthe rules which determine which acts give rise to liability. It is often said that causation is a question of fact. So it is, but so is the question of liability. Liability involves applying the rules which determine whether an act is tortious to the facts of the case. Likewise, the question of causation is decided by applying the rules which lay down the causal requirements for that form of liability to the facts of the case.”
“37. … I see no need to superimpose the requirement or prerequisite of reasonable foreseeability upon the statutory tort in order to achieve the balance of interests which the law of tort requires. It is sufficient if the damage flows directly and naturally from the wrong. While there is force in the submission that, to prevent multiplicity of claims and frivolous claims, a control mechanism beyond that of causation is needed, reliance upon the good sense of employment tribunals in finding the facts and reaching conclusions on them is a sufficient controlmechanism, in my view. As a mechanism for protecting a defendant against damages which, on policy grounds, may appear too remote, a further control by way of a reasonable foreseeability test is neither appropriate nor necessary in present circumstances. 38. In torts such as negligence and nuisance, the need to establish foreseeability of the relevant kind of harm is a “prerequisite” of the recovery of damages: Lord Goff in Cambridge Water case[1994] 2 AC 264 , 300 and 301. In order to do justice between parties in circumstances which may be complex, that requirement has been held to be appropriate and the facts of such cases as The Wagon Mound[1961] AC 388 and the Cambridge Water case demonstrate the need for it. In The Wagon Mound the defendants neither knew or could reasonably have known that furnace oil was capable of being set on fire when spread on water. 39. In present circumstances of direct discrimination by racial abuse in the face of the victim, the same considerations do not apply. The present facts are akin to the torts of assault and battery in that there was deliberate conduct towards and in the presence of the victim, though the abuse was verbal and not physical. The statutory tort in my view affords protection against that conduct and, applying Lord Nicholls’s test, to the extent that the victim is to be compensated for the loss which arises naturally and directly from the wrong. It is possible that, where the discrimination takes other forms, different considerations will apply.”
“48. The question whether, in Lord Nicholls’s phrase, the defendant “ought to be held liable” only if he ought reasonably to have foreseen that the type of injury alleged was reasonably foreseeable seems to me to depend upon a consideration of the 1976 Act and the policy behind it. The court should I think have in mind the purposive approach to the construction of the Act adopted by Waite LJ in Jones v Tower Boot Co Ltd[1997] ICR 254 , 261-263 and by Templeman LJ in Savjani v Inland Revenue Comrs[1981] QB 458 , 466-467. Although those cases were concerned with a different problem, they do not support a suggestion that a restricted approach should be adopted to compensation for unlawful racial discrimination. 49. As Templeman LJ put in a well known phrase, the Act was brought in to remedy a very great evil. In these circumstances, it seems to me that it should be sufficient if the claimant shows that the particular type of injury alleged was caused by the act of discrimination. Both Miss Moor and Miss Monaghan relied upon the fact that the wrong created by the statute is an intentional wrong in the sense that it cannot be committed accidentally. As Pill LJ observed, the act or omission must be deliberate and in that sense intentional.”
“15. The starting point … is that it is trite law that the award of compensation in discrimination cases is governed by the same approach as is followed in the award of damages for common law torts: see Essa v Laing Ltd[2004] IRLR 313 . We have here a case in which the appellant has suffered loss as a result of the combination of two wrongful acts – the [first employer]’s in giving (for a proscribed reason) the damaging reference, and [the second employer]’s in (likewise, for a proscribed reason) withdrawing the offer following receipt of that reference. The torts in question can properly be described as ‘concurrent’ in the sense that they both contributed to the occurrence of the loss, but it is also important to the analysis that they are consecutive, the [first employer]’s act being earlier in time and thus necessarily further up ‘the chain of causation’. … The ultimate question is how far, in the circumstances of the particular case, the responsibility of the tortfeasor ought fairly to extend. … 21. Standing back from the tribunal’s particular reasoning, it seems to us that as a matter of policy and fairness the [first employer] ought plainly to be liable here. When an employer (or ex-employer) gives, for an illegitimate reason, an adverse reference which leads to a prospective future employer deciding not to make, or to withdraw, a job offer to a candidate it is hard to see why that consequence should be regarded as too remote to attract compensation from the original employer: so far from being remote, it seems to us both close and direct. As the case law shows, the giving of damaging references is a not uncommon form of victimisation (or alleged victimisation). It would be most unsatisfactory if a claimant who lost the opportunity of employment as the result of such a reference were unable to recover substantial damages from the person giving it. A remedy against the prospective employer, ie the recipient of the reference, will by no means always be available. It was only so in the present case because part of the damaging information supplied took the form of information about the earlier proceedings, which constituted a protected act, and [the second employer] were held to have been motivated by that specific information: it would have been otherwise if [the first employer] had given an equally damaging reference but had not directly referred to any protected act.”
“20. “Courts of law”, said Lord Asquith of Bishopstone in Stapley v Gypsum Mines Ltd[1953] AC 663 , 687, “must accept the fact that the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act diverge”
“377. As for causing, in the “but for” sense it is true that if Kirrin Medcalf had not written, Maya Sikand’s report would have been limited to the original batch referred, which she would have dismissed without investigation. The email was the occasion of the report, no more. Was the letter an attempt to cause discrimination against the claimant? We concluded that it was no more than protest, with an appeal to a perceived ally in a ‘them and us’ debate.”
“… Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out. …”