Causation, Novus Actus and Third‑Party Campaigners: Clarifying Section 111 Equality Act Liability in Bailey v Stonewall Equality Ltd

Causation, Novus Actus and Third‑Party Campaigners: Clarifying Section 111 Equality Act Liability in Bailey v Stonewall Equality Ltd [2025] EWCA Civ 1662

1. Introduction

The Court of Appeal’s decision in Bailey v Stonewall Equality Ltd & Ors [2025] EWCA Civ 1662 is a significant authority on the scope of third‑party liability for discrimination under section 111 of the Equality Act 2010 (“EA 2010”). It arises out of a bitterly contested dispute at the intersection of “gender‑critical” beliefs and trans rights advocacy, but its lasting importance lies in the Court’s structured approach to:

  • What it means to “cause” or “induce” a basic contravention under section 111(2)–(3) EA 2010;
  • How common law concepts of causation, novus actus interveniens and “scope of liability” apply to this statutory tort; and
  • The limits of liability for NGOs, campaign groups and other third parties who lobby or complain to employers.

Ms Allison Bailey, a barrister and tenant at Garden Court Chambers (“GCC”), succeeded in the Employment Tribunal (“ET”) in establishing that GCC directly discriminated against and victimised her because of her protected gender‑critical beliefs and protected acts. She recovered damages against GCC; there was no appeal from that finding.

Her separate claim against Stonewall Equality Ltd (“Stonewall”) failed before the ET and the Employment Appeal Tribunal (“EAT”), and she pursued a second appeal to the Court of Appeal. The central issue was whether Stonewall, through a complaint email sent by its Head of Trans Inclusion, “caused” or “induced” GCC’s discriminatory conduct within the meaning of section 111(2)–(3) EA 2010.

The Court of Appeal unanimously dismissed Ms Bailey’s appeal, endorsing a structured causal analysis which incorporates:

  • a threshold “but for” test; and
  • a second, evaluative stage (drawn from Kuwait Airways v Iraqi Airways) engaging concepts such as novus actus interveniens and effective cause.

The judgment carefully distils how the statutory tort under section 111 interacts with the Equality Act’s core provisions on direct discrimination and victimisation, and confirms that ordinary protest or advocacy by third parties will not readily be treated as “causing” or “inducing” unlawful discrimination by others.

2. Background and Key Facts

2.1 The parties and their positions

  • Ms Bailey – a criminal barrister and lesbian; she holds “gender‑critical” beliefs, including that “a woman is defined by her sex” and not by self‑identified gender. The ET, applying Forstater v CGD Europe, held her beliefs were protected as “philosophical belief” under sections 4 and 10 EA 2010. That was not challenged.
  • Garden Court Chambers (GCC) – Ms Bailey’s chambers; they were signed up to Stonewall’s “Diversity Champions” scheme from November 2018. GCC prided itself on its alignment with LGBT inclusion and Stonewall’s agenda.
  • Stonewall Equality Ltd – a charity promoting the rights of lesbian, gay, bisexual and trans (“LGBT”) people. From 2015 it placed particular emphasis on trans rights and gender recognition reform, including support for self‑identification under the Gender Recognition Act 2004. It ran the “Diversity Champions” workplace inclusion programme and operated a Stonewall Trans Advisory Group (“STAG”).

2.2 The underlying conflict

Ms Bailey opposed aspects of Stonewall’s trans policy, especially self‑ID and its implications for single‑sex spaces and lesbian identity. She publicly criticised what she described as “trans‑extremism” and the “Stonewall trans self‑ID agenda”, including via:

  • an internal GCC email objecting to the Diversity Champions scheme; and
  • a series of tweets and media comments from 2019 onwards, including tweets about Stonewall staff and a Sunday Times article she publicised complaining of “intimidation, fear and coercion” driving Stonewall’s agenda.

Her stance reflected wider tensions between some gender‑critical feminists/lesbians and trans‑inclusive policies. That socio‑political context was the backdrop to complaints about her conduct.

2.3 Events leading to GCC’s discrimination

  1. Complaints and GCC’s “response tweet” (Detriment 2)
    After GCC hosted a meeting of the Trans Organisational Network (“TON”) on 23 October 2019 (attended by Stonewall’s Head of Trans Inclusion, Kirrin Medcalf), participants were encouraged to complain to GCC about Ms Bailey’s tweets. STAG and its Facebook page also called on people to contact GCC.

    GCC received several complaints and on 24 October 2019:
    • informed Ms Bailey there would be an investigation; and
    • tweeted publicly (“the response tweet”) that it was investigating her comments, which did not represent GCC’s views.
    The ET found that this “picked sides” against Ms Bailey because of her protected beliefs. This was held to be direct discrimination (Detriment 2) and a “basic contravention” under s.111(1).
  2. The Stonewall complaint email (31 October 2019)
    On 28 October 2019, Mr Medcalf posted “done” on STAG’s wall, referring to an email he sent to GCC on 31 October 2019 – the “Stonewall complaint”. In it, he:
    • identified 11 of Ms Bailey’s tweets from September–October 2019;
    • described them as “transphobic” and “targeting” Stonewall staff, including Morgan Page;
    • criticised her chairing of Woman’s Place events (which he described as linked to a “hate group”); and
    • said her actions, linked to GCC, threatened Stonewall’s relationship with GCC and the safety of Stonewall’s “staff and community”.
    The email concluded:
    “I trust that you will do what is right and stand in solidarity with trans people.”
  3. GCC’s renewed investigation and Detriment 4
    On 4 November 2019, the Stonewall complaint and additional tweets were passed to GCC member and investigator, Maya Sikand. She asked Ms Bailey to comment on two specific tweets:
    • a tweet about Stonewall employee Morgan Page (22 September 2019); and
    • Ms Bailey’s tweet about the Sunday Times article (27 October 2019).
    Ms Bailey responded on 21 November, but GCC did not pass her response to the Bar Council ethics adviser, Catherine McGahey KC, from whom it sought guidance.

    Ms McGahey advised that, if Ms Bailey could not substantiate her assertions, she might risk a finding of misconduct, but what she had written was probably just over the borderline of acceptable given her sincerely held views.

    Ms Sikand’s draft report mirrored this cautious “risk of breach” language. However:
    • after input from GCC Head of Chambers Stephanie Harrison KC (a vocal opponent of Ms Bailey’s views), the language was escalated to say the tweets were “likely” to have breached professional obligations; and
    • Ms Bailey was asked to take down the two tweets. She refused; no further disciplinary action followed.
    The ET held that:
    • the failure to send Ms Bailey’s response to Ms McGahey;
    • Ms Harrison’s improper interference; and
    • the disapproval of Ms Bailey’s beliefs by senior GCC members, influencing the adverse conclusion
    together constituted a further act of direct discrimination and victimisation – Detriment 4 – and thus a second “basic contravention” for s.111(1) purposes.

2.4 The case against Stonewall

Ms Bailey’s pleaded case against Stonewall (post‑amendment) alleged that Stonewall:

  • “colluded” with GCC in submitting the complaint;
  • “invited” or “dictated” the direction of GCC’s treatment of her; and
  • by its complaint, had “instructed, caused or induced” GCC’s unlawful conduct, contrary to section 111 EA 2010.

She alleged that:

  • the Stonewall complaint was itself a detriment (Detriment 3), and
  • GCC’s upholding of the complaint was another detriment to her (Detriment 4).

The ET found:

  • no factual basis for “collusion” or for Stonewall directing the complaints process – describing that suggestion as “a conspiracy theory”; and
  • that the Stonewall complaint was not itself a detriment and had not caused or induced GCC’s discriminatory outcome.

3. Summary of the Judgment

3.1 Issues on appeal

The Court of Appeal framed the central question as:

Whether the ET was wrong to dismiss Ms Bailey’s claim against Stonewall for causing or inducing (or attempting to cause or induce) GCC’s discrimination, and therefore whether the EAT was wrong to uphold that dismissal.

This required the Court to construe and apply section 111(2)–(3) EA 2010:

  • s.111(2): A must not cause B to commit a “basic contravention” (here, GCC’s discrimination under Part 5).
  • s.111(3): A must not induce B to commit a basic contravention (including attempts: s.111(8)).

3.2 The ET’s key finding on Stonewall: “the email was the occasion of the report, no more”

The ET accepted that:

  • “but for” the Stonewall complaint, Ms Sikand’s report would likely have been confined to the earlier batch of tweets and dismissed without further investigation; and
  • the Stonewall email therefore triggered (“was the occasion of”) the renewed scrutiny leading to Detriment 4.

However, the ET found:

  • the complaint was “no more than protest, with an appeal to a perceived ally in a ‘them and us’ debate”;
  • Stonewall was not seeking any particular disciplinary outcome for Ms Bailey; and
  • the discriminatory handling of the investigation (and thus Detriment 4) was the product of GCC’s own actions and decisions, not Stonewall’s influence.

On this basis, the ET held that Stonewall neither:

  • caused nor attempted to cause GCC’s discrimination under s.111(2); nor
  • induced nor attempted to induce it under s.111(3).

3.3 The EAT’s approach

The EAT (Bourne J) upheld the ET, giving guidance on:

  • the broad, purposive nature of s.111 and the concept of “causing” and “inducing”;
  • the relevance of the two‑stage causation approach from Kuwait Airways; and
  • the role of foreseeability as a factor (but not a hard requirement) in deciding whether liability ought fairly and justly to extend to a third party.

3.4 The Court of Appeal’s holdings

The Court of Appeal (with Newey and Bean LJJ agreeing) dismissed the appeal on all grounds, holding in essence that:

  1. Section 111(2): “Causing” a basic contravention
    • There is a threshold requirement of “but for” causation, as in other torts – i.e. would the basic contravention have occurred without A’s conduct?
    • However, “but for” causation is not sufficient on its own. The court must go on to a second, evaluative stage (following Kuwait Airways and Hughes-Holland), asking whether, in light of the statutory purpose, it is fair, just and reasonable to hold A liable.
    • At this second stage, the court draws on familiar legal “labels” or “filters” such as:
      • novus actus interveniens (a new intervening act breaking the chain of causation);
      • effective or substantial cause vs a mere occasion or background circumstance; and
      • scope of duty, remoteness and (as a factor, not test) foreseeability.
    • On the ET’s findings, GCC’s discriminatory investigation constituted a novus actus interveniens which broke any chain from Stonewall’s complaint; the complaint was merely the occasion, not an effective cause, of Detriment 4.
  2. No fixed “mental element” imported into s.111(2)
    • Sections 13 and 27 EA 2010 require that the immediate discriminator acts “because of” a protected characteristic or protected act (“significant influence”: Nagarajan).
    • However, section 111(2) does not itself contain “because of” wording. The Court declined to read such a requirement in as a fixed element of liability.
    • Instead, any discriminatory motivation or link to protected characteristics is a relevant factor considered at the evaluative second stage when deciding whether to fix A with liability, but is not a strict statutory ingredient.
  3. Section 111(3): “Inducing” a basic contravention
    • “Induce” means “persuade”, “prevail upon” or “bring about” (following CRE v Imperial Society of Teachers of Dancing).
    • Inducement ordinarily requires some degree of deliberate attempt to bring about conduct by B.
    • On the ET’s findings, Mr Medcalf and Stonewall:
      • were not seeking any specific action against Ms Bailey; and
      • were simply protesting and appealing to a perceived ally.
    • Accordingly, neither inducement nor attempted inducement was made out under s.111(3) and (8).
    • The Court commented that, conceptually, causing presents a lower hurdle than inducing; if causing fails on these facts, inducement is unlikely to succeed.
  4. Foreseeability and scope of liability
    • Reasonable foreseeability of the specific discriminatory outcome is not a rigid prerequisite for liability under s.111; the Court agreed with the EAT that the statutory tort does not import the classic Wagon Mound/Cambridge Water foreseeability test.
    • However, foreseeability can be a relevant consideration in the evaluative stage when deciding whether A ought fairly to be held liable.
  5. Grounds of appeal
    • The Court rejected challenges to the ET’s factual findings: the ET’s characterisation of the Stonewall complaint as “no more than a protest” and “the occasion of the report, no more” was open to it and not perverse.
    • The Court rejected the suggested “two‑criteria” test for s.111(2) (mental element + but‑for causation) as too rigid and inconsistent with the Kuwait Airways framework.
    • Complaints about the EAT’s references to GCC’s human rights reputation and to Mr Medcalf’s own protected beliefs were immaterial; they did not undermine the legality of the ET’s approach.
    • There was no basis to remit the case to the ET; applying the correct test, only one outcome was possible on the ET’s factual findings.

4. Detailed Analysis

4.1 Statutory framework

4.1.1 Core concepts under Equality Act 2010

  • Protected characteristics (ss.4, 10) – include “religion or belief”; “belief” includes “any religious or philosophical belief”. Gender‑critical beliefs qualify as such.
  • Direct discrimination (s.13) – A discriminates against B if, “because of” a protected characteristic, A treats B less favourably than others.
  • Victimisation (s.27) – A victimises B if A subjects B to detriment because:
    • B has done a “protected act” (e.g. bringing discrimination proceedings, making allegations of discrimination, or supporting others), or
    • A believes B has done or may do a protected act.
  • Barristers (s.47(5)) – a barrister must not victimise a tenant by, among other things, subjecting them to “any other detriment”.

4.1.2 Section 111 – instructing, causing or inducing contraventions

Section 111 EA 2010 is the critical provision:

  • s.111(1): forbids A from instructing B to commit a “basic contravention” (an unlawful act under Parts 3, 4, 5, 6, 7 or certain specific sections).
  • s.111(2): forbids A from causing B to commit a basic contravention in relation to C.
  • s.111(3): forbids A from inducing B to commit a basic contravention in relation to C.
  • s.111(4): inducement may be direct or indirect.
  • s.111(5): proceedings can be brought by B (if B suffers a detriment), by C (if C suffers a detriment), or by the EHRC.
  • s.111(6): liability under s.111 does not depend on whether the “basic contravention” actually occurs or whether other proceedings are brought.
  • s.111(7): s.111 applies only where the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B (e.g. service provider/client; employer/employee; chambers/service provider). It was common ground that this applied as between Stonewall and GCC.
  • s.111(8): references to causing/inducing include attempts to do so.
  • s.111(9): for enforcement purposes, a contravention is treated as relating to whichever Part of the Act B could have contravened in relation to C.

Here:

  • A = Stonewall;
  • B = GCC; and
  • C = Ms Bailey.

The “basic contraventions” were GCC’s direct discrimination and victimisation (Detriments 2 and 4) contrary to Part 5 and s.47 EA 2010.

4.2 The precedents and how they shaped the Court’s approach

4.2.1 Nagarajan v London Regional Transport [1999] ICR 877

Nagarajan is the leading House of Lords authority on the mental element in discrimination cases. Lord Nicholls emphasised that:

  • discrimination will exist where race (or by analogy, a protected characteristic or protected act) had a “significant influence” on the outcome; and
  • it need not be the sole or even the main reason, nor must it be conscious or overtly motive‑based.

The Court of Appeal deployed this in two ways:

  • It accepted (and Stonewall did not contest) that GCC’s adverse treatment of Ms Bailey amounted to direct discrimination and victimisation because her gender‑critical beliefs and protected acts had a significant influence on GCC’s decisions – satisfying ss.13 and 27.
  • But crucially, it refused to import the same mental element as a strict requirement into section 111(2). Section 111(2) lacks “because of” wording. Rather, any discriminatory mindset or link to protected acts becomes a factor to be considered at the second, evaluative stage of causation, not a freestanding statutory ingredient.

4.2.2 Kuwait Airways Corp v Iraqi Airways Co (Nos 5 & 6) [2002] 2 AC 883

Kuwait Airways is the key modern authority on causation and scope of liability in tort. Lord Nicholls articulated a two‑stage inquiry (paras 69–72):

  1. Factual / “but for” causation – Did the wrongful act causally contribute to the loss, usually tested as: would the loss have occurred but for the defendant’s act?
  2. Evaluative stage – Of the losses that are factually caused, what is the extent of the loss for which the defendant ought fairly, reasonably or justly to be held liable? This stage takes into account:
    • the nature and scope of the particular liability;
    • the purpose of the cause of action;
    • remoteness, novus actus interveniens, and the relative causal potency of different events; and
    • “informed common sense” or judicial instinct about responsibility.

Lord Hoffmann stressed that there is no single, uniform causal requirement in tort; causal rules vary with the underlying duty and policy of the cause of action (paras 127–128).

The Court of Appeal treated section 111(2) as a statutory tort whose causation rules follow this two‑stage framework:

  • Stage 1: Threshold “but for” causation – satisfied here (without the Stonewall complaint, Ms Sikand’s report would likely have looked very different).
  • Stage 2: Evaluative judgment – did Stonewall’s conduct have sufficient causal potency to justify treating it as a legal cause of GCC’s discrimination? The Court held that the ET had lawfully treated GCC’s discriminatory investigation as a novus actus interveniens which broke the chain of causation.

4.2.3 Essa v Laing Ltd [2004] ICR 746

Essa concerned compensation for racial harassment under the Race Relations Act 1976. The Court of Appeal rejected the idea that reasonable foreseeability of the precise harm was a prerequisite for liability; instead, victims should be compensated for loss that flows “directly and naturally” from the wrong, given the intentional nature of discrimination.

This informed the Court’s approach in Bailey:

  • it confirmed that discrimination statutes are remedial and purposive, designed to combat a “very great evil” (Savjani);
  • it supported the rejection of a narrow foreseeability test as a formal criterion under s.111(2); but
  • it allowed foreseeability to play a role as a factor when determining whether it is fair or just to attribute responsibility at the evaluative stage.

4.2.4 Bullimore v Pothecary Witham Weld [2011] IRLR 18

In Bullimore, the claimant’s former employer (First Employer) gave a reference that complained about her prior tribunal proceedings; the prospective employer (Second Employer) withdrew her job offer for that reason. The EAT (Underhill J) held both were liable:

  • the adverse reference and the withdrawal of the offer were concurrent wrongful acts contributing to the same loss;
  • it would be “plainly” fair as a matter of policy to hold the First Employer liable for the loss of the new job.

The Court of Appeal in Bailey distinguished Bullimore:

  • there, the referrer’s discrimination was a substantial and continuing cause of the loss;
  • here, the ET had found that Stonewall’s complaint did not influence GCC’s discriminatory mental processes or the key missteps in the investigation; it was simply the occasion for GCC’s independent discrimination.

Thus, Bullimore demonstrates circumstances where two actors can be joint or concurrent causes of discrimination. Bailey illustrates the converse scenario: where the immediate discriminator’s actions are so distinct and self‑standing that they sever any causal link to an earlier complaint.

4.2.5 Hughes-Holland v BPE Solicitors [2018] AC 599

Lord Sumption’s judgment in Hughes-Holland reinforces that “but for” causation is generally necessary but not sufficient. Courts must distinguish between:

  • a mere “precondition or occasion” of loss; and
  • an act that creates liability to make good that loss.

The Court of Appeal explicitly linked this reasoning to the ET’s description of the Stonewall complaint as “the occasion of the report, no more” and treated that as a lawful articulation of the distinction between factual “trigger” and legal cause.

4.3 The Court’s legal reasoning on section 111(2) – “causing” a contravention

4.3.1 Step 1 – “But for” causation as threshold

The Court accepted that the ET correctly recognised that, in the “but for” sense, if Mr Medcalf had not sent the complaint:

  • Ms Sikand would probably not have revisited the investigation in the same way; and
  • Detriment 4 might not have occurred in the same form.

This satisfied the first-stage threshold. However, “but for” causation did not automatically entail liability.

4.3.2 Step 2 – Evaluative stage: was Stonewall an effective cause, or merely an occasion?

At the second stage, the Court asked whether, in light of the purpose of s.111 and all the facts, Stonewall’s conduct should be treated as a legal cause of GCC’s discrimination. Key points:

  • The ET’s factual findings were determinative: Stonewall’s complaint:
    • was a protest, “with an appeal to a perceived ally in a ‘them and us’ debate”;
    • did not articulate a specific desired outcome (e.g. expulsion, suspension, disciplinary finding);
    • made no reference to GCC’s Diversity Champion status or any broader corporate leverage; and
    • was not followed up, even when GCC did not respond for two months.
  • GCC’s discriminatory treatment (Detriment 4) stemmed from:
    • its failure to share Ms Bailey’s response with ethics counsel;
    • improper interference and escalation of findings by GCC’s Head of Chambers; and
    • the disapproval of Ms Bailey’s protected beliefs by senior GCC members.
    These actions, found by the ET to be “because of” Ms Bailey’s beliefs and protected acts, were solely GCC’s doing.
  • Stonewall neither:
    • advised or influenced GCC’s handling of the investigation; nor
    • played any part in the disapproval or mischaracterisation of Ms Bailey’s beliefs.

On this basis, the Court held it was legitimately open to the ET to treat:

  • the Stonewall complaint as the occasion or factual backdrop; and
  • GCC’s flawed investigation as a novus actus interveniens – a new, independent act that broke the chain of causation between Stonewall and Detriment 4.

Thus, even though “but for” causation was present, Stonewall was not a legal cause of the discrimination for the purposes of s.111(2).

4.3.3 Mental element and section 111(2)

The appellant argued that two criteria must be satisfied for s.111(2) liability:

  1. Person A acts because of the protected characteristic or act (i.e. with a discriminatory motive or mindset); and
  2. “But for” A’s actions, the discrimination by B would not have occurred.

The Court rejected this as too rigid:

  • Section 111(2) lacks any “because of” wording; importing that language from ss.13/27 would rewrite the statute.
  • The better analysis is:
    • a threshold of but for causation; and
    • then, an evaluative stage where factors such as A’s motivation, knowledge of C’s protected characteristics and the link to the ensuing discrimination are relevant, but not fixed prerequisites.
  • In practice, it is hard to imagine liability being imposed where there is no mental connection at all, but Parliament has left this as part of the ET’s evaluative task, not as a strict element.

4.3.4 Rejection of “direct cause” as a formal criterion

Stonewall had argued for a requirement that A’s act be the “direct cause” of the discrimination. The Court declined to convert “directness” into a rigid criterion:

  • while case law refers to “direct and natural” consequences (e.g. Essa), this is typically in contrast to foreseeability rather than as a self‑standing test;
  • causal connections can be of “widely differing kinds” (Kuwait Airways, Lord Hoffmann); imposing a direct/indirect dichotomy risks unhelpful hair‑splitting; and
  • the Kuwait Airways second stage already allows the court to consider whether liability is fair, just and reasonable, including whether a defendant’s role was too remote or insubstantial.

4.3.5 Novus actus interveniens and section 111

The appellant argued that novus actus interveniens has no place under s.111 because:

  • the statutory scheme envisages A being liable for causing B’s basic contravention; and
  • therefore B’s own discriminatory act cannot break the chain of causation.

The Court rejected that, holding:

  • Section 111(2) does not exclude classical causation doctrines. Concepts such as novus actus interveniens are among the “labels” courts may use at the evaluative stage to limit liability.
  • The statutory language merely permits cases where A is liable for causing B’s contravention; it does not mandate that B’s contravention must always be attributable to A.
  • Whether B’s act is a novus actus depends on the facts. In some cases (like Bullimore), both A and B may be effective causes; in others (like Bailey), B’s autonomous discrimination may sever A’s responsibility.

4.4 Inducement under section 111(3)

4.4.1 The concept of inducement

The meaning of “induce” in discrimination law has long been taken from CRE v Imperial Society of Teachers of Dancing:

  • to “induce” is to persuade, prevail upon, or bring about the contravention;
  • inducement includes both direct and indirect pressure (s.111(4)); and
  • s.111(8) extends this to attempted inducement.

Inducement thus contains an element of purposeful conduct by A aimed at influencing B’s conduct.

4.4.2 Application to Stonewall’s complaint

Ms Bailey’s ground of appeal on inducement contended that:

  • Stonewall, significantly influenced by opposition to Ms Bailey’s beliefs, intended to persuade GCC to take some action detrimental to her;
  • GCC did, in fact, take detrimental action (Detriment 4), even if the specific form of discrimination was not precisely what Stonewall foresaw; and
  • this sufficed for inducement or at least attempted inducement.

The ET, however, found (and the Court of Appeal accepted) that:

  • Mr Medcalf:
    • was not seeking a particular sanction or disciplinary outcome;
    • largely had his “advocacy hat on” – i.e. was protesting and setting out Stonewall’s stance; and
    • expected, if anything, a dialogue about staff safety and relationships, which he did not clearly articulate in the email.
  • The ambiguous phrase about continued association putting GCC in a “difficult position” could be read as a threat to the relationship, but the ET did not accept that interpretation after hearing evidence.
  • There was no evidence that GCC treated the complaint as an attempt at leverage via the Diversity Champions scheme; the scheme was not mentioned in the email and was not a basis for GCC’s subsequent steps.

On those findings, Stonewall lacked the intentional, persuasive element necessary for inducement. The Court concluded:

  • Elements of inducement – wanting GCC to act in a particular way and persuading it to do so – were not established on the facts.
  • Given that the lower‑threshold “causing” route under s.111(2) had failed, it would be conceptually difficult to uphold a higher‑threshold inducement claim on the same factual matrix.
  • Alleged attempted inducement failed for the same reasons: there was no finding that Stonewall was attempting to bring about discriminatory treatment.

4.5 The EAT’s additional observations and the Court’s response

Two aspects of the EAT’s reasoning were challenged but held to be immaterial:

  1. Likelihood of GCC discriminating
    The EAT had observed that it was “not particularly likely” that GCC, as a prominent human rights set, would respond to Stonewall’s complaint by discriminating. While not argued at length below, this went to the issue of foreseeability. The Court of Appeal held:
    • the EAT was entitled to explore foreseeability as a factor, though not a strict test;
    • in any event, these comments did not drive the outcome and did not undermine the ET’s reasoning.
  2. Protection of Mr Medcalf’s beliefs
    The EAT also noted that Mr Medcalf’s own pro‑trans rights beliefs were protected under the EA 2010. The Court of Appeal agreed that:
    • this was a fair observation given the ET’s findings and the Forstater line of authority; and
    • it simply underlines that both gender‑critical and trans‑inclusive beliefs can be protected, without affecting the analysis of liability under s.111.

The Court further rejected the argument that the matter should be remitted to the ET under Jafri v Lincoln College. Since the ET had made clear factual findings and the only lawful conclusion under the correct legal test was that Stonewall was not liable, remittal would serve no purpose.

5. Complex Concepts Simplified

5.1 “Basic contravention” under section 111

A “basic contravention” is simply an underlying discriminatory or victimising act that breaches a substantive part of the Equality Act – here, GCC’s:

  • direct discrimination under s.13 (Detriments 2 and 4); and
  • victimisation under s.27 read with s.47(5) (Detriment 4).

Section 111 is a secondary provision. It does not create new kinds of discrimination, but makes it unlawful for a third party (A) to:

  • instruct,
  • cause, or
  • induce/attempt to induce

another person (B) to commit one of these underlying wrongs against C.

5.2 “But for” causation

This is the most basic causation test: would the harm have occurred but for the defendant’s act?

  • If the answer is no – the harm would not have occurred – the act is a factual cause.
  • If the answer is yes – the harm would have occurred anyway – the act is not a cause.

However, as the Court emphasised, in discrimination and other torts this is only a starting point. Passing the “but for” test does not automatically lead to liability.

5.3 Novus actus interveniens

Literally “a new intervening act”, this concept allows the court to say:

  • although an earlier act was a factual condition of the loss,
  • a later independent act (often by a third party) is so significant and self‑standing that it “breaks the chain” of causation.

In Bailey, the Court treated GCC’s autonomous and discriminatory management of its investigation – including withholding Ms Bailey’s response, the Head of Chambers’ interference, and the negative treatment of her beliefs – as a novus actus that:

  • took over as the effective cause of the detriment; and
  • displaced Stonewall’s earlier complaint from the chain of legal causation.

5.4 “Scope of liability” and “legal labels”

Courts use several overlapping concepts to limit how far liability extends, even where “but for” causation is satisfied:

  • Remoteness – was the loss too remote from the wrongdoing?
  • Novus actus interveniens – did a new act break the chain?
  • Failure to mitigate – could the claimant reasonably have avoided some of the loss?
  • Scope of duty – what risks was the duty meant to protect against (e.g. Hughes-Holland)?
  • Foreseeability – not always a strict test, but often a guide to fairness.

These are the “labels” or “filters” referred to by Lord Nicholls and Lord Sumption. In Bailey, the controlling concept was novus actus interveniens.

5.5 Inducement vs causing under s.111

Although related, there is an important distinction:

  • Causing is broader – it focuses on whether A’s conduct is a factual and legal cause of B’s discrimination, regardless of whether A set out to persuade B.
  • Inducing implies some level of deliberate persuasion – A seeks to get B to act in a way that contravenes the Equality Act.

This is why the Court said that if a claimant cannot establish “causing” on a given set of facts, it will be difficult to succeed on inducement, which conceptually requires more.

6. Impact and Significance

6.1 Clarifying third‑party liability for discriminatory acts

The judgment provides important guidance on when, and how easily, a third party can be held liable under section 111 for another’s discrimination:

  • It confirms that section 111(2) is not a strict or near‑automatic route to liability whenever a third party’s complaint or lobbying prompts an employer or professional body to act.
  • ETs must conduct a two‑stage causation analysis:
    1. Is the “but for” threshold met?
    2. If yes, is it fair, just and reasonable – considering all the legal filters – to treat the third party as a legal cause of the discrimination?
  • Ordinary protest, advocacy or complaint, even when robustly expressed and motivated by strong beliefs about equality or rights, will not readily cross the line into “causing” or “inducing” discrimination absent some further element of:
    • direction or pressure as to outcomes; or
    • actual influence over how the investigation or decision‑making is carried out.

6.2 Reassurance and limits for campaigners, NGOs and trade unions

For charities, campaigners, trade unions and lobby groups that engage with employers or service providers, this decision offers a degree of reassurance:

  • They can raise concerns, criticise conduct, and call for change without automatically incurring liability for any subsequent mishandling or discriminatory response by the organisation addressed.
  • Liability under s.111(2)–(3) will arise only where their intervention is:
    • a significant legal cause of the discrimination; or
    • amounts to persuading or directing the discriminator to act unlawfully.

However, the decision does not give third parties complete immunity:

  • If a campaign group explicitly or implicitly pressures an organisation to take discriminatory action – e.g. “you must sack this employee because she is gender‑critical” – and that pressure plays a substantial role in the outcome, liability under s.111 remains possible.
  • If the third party is closely involved in shaping the investigative process or outcome, or effectively co‑opts the employer’s decision‑making, its role may move from “occasion” to “cause”.

6.3 Practical lessons for employers and professional bodies

The case also carries strong messages for employers, chambers, and other bodies handling complaints instigated by external organisations:

  • The primary responsibility for avoiding discrimination rests with the immediate decision‑maker (here, GCC), regardless of third‑party pressure or complaint.
  • Locking into an external organisation’s agenda or jargon (e.g. labelling views “transphobic” without careful analysis) can lead to discriminatory outcomes if it results in:
    • unfair investigative processes;
    • failure to consider the employee’s explanations; or
    • disciplinary findings driven by disapproval of protected beliefs.
  • Even where a complaint is made in good faith by a respected NGO, employers must:
    • retain independence of judgment;
    • follow fair procedures; and
    • avoid discriminating because of protected beliefs or acts.

6.4 Equality of protection for conflicting beliefs

Bailey sits within the broader line of cases recognising:

  • gender‑critical beliefs (as in Forstater and the ET’s findings here) as protected philosophical beliefs; and
  • pro‑trans rights beliefs as likewise capable of protection.

The judgment underscores that:

  • both sides of this contested discourse can rely on the Equality Act’s protection for belief;
  • the law does not privilege one set of beliefs over the other; and
  • what matters, for liability purposes, is whether adverse treatment is because of someone’s protected belief or act (for the immediate discriminator), and whether a third party can properly be said to have caused or induced that treatment under s.111.

6.5 Future litigation under section 111

This decision is likely to be a reference point for future s.111 claims involving:

  • employers who act after pressure from commercial clients or regulators;
  • universities or professional bodies responding to activist campaigns;
  • social media‑driven complaints and “pile‑ons” leading to disciplinary action; and
  • union or NGO interventions in workplace disputes.

Key practical points for litigants:

  • Claimants will need detailed evidential linkage between the third party’s conduct and the discriminator’s decision‑making.
  • ETs will be expected to:
    • identify whether “but for” causation is established; and
    • then explicitly or implicitly undertake the evaluative exercise, considering issues such as effective cause, intervening acts, and fairness.
  • Simply showing that a complaint “triggered” an investigation will not suffice where the discrimination lies in how the employer later conducts that investigation.

7. Conclusion

Bailey v Stonewall Equality Ltd is a leading authority on section 111 EA 2010. It confirms a two‑stage approach to “causing” a basic contravention:

  1. a threshold “but for” test of factual causation; and
  2. a second stage evaluative judgment – informed by the purpose of the Equality Act and common law concepts like novus actus interveniens, remoteness and scope of liability – as to whether the third party’s conduct should be treated as a legal cause of the discrimination.

The Court:

  • rejected attempts to hard‑wire a “because of” mental element into s.111(2), whilst acknowledging that motivation and knowledge remain relevant factors;
  • emphasised that ordinary protest and advocacy by NGOs or campaigners will not, without more, be held to “cause” or “induce” discrimination by employers; and
  • upheld the ET’s application of novus actus interveniens, treating GCC’s discriminatory investigation as breaking the chain from Stonewall’s complaint.

At the same time, the judgment is a stark reminder that:

  • employers and professional bodies remain primarily responsible for ensuring their own processes are non‑discriminatory; and
  • discrimination because of protected beliefs – including gender‑critical and trans‑inclusive beliefs – will be unlawful regardless of the political or cultural pressures in play.

The case thus both clarifies the limits of third‑party liability under section 111 and reinforces the centrality of fair, independent decision‑making by employers and professional organisations within the Equality Act’s framework.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Civil Division)

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