Anonymized Summary of Legal Opinion

Factual and Procedural Background

The Plaintiff is a barrister who was a tenant at Company B. She brought discrimination proceedings in the Employment Tribunal ("ET") against Company B (including the service company that owns the premises and Company B's heads of chambers). The ET found in favour of the Plaintiff against Company B and awarded damages; Company B did not appeal.

The Plaintiff also sued Company A for discrimination arising out of the same events. The ET (a panel including Judge Goodman) dismissed the claim against Company A in a reserved judgment. The Plaintiff appealed to the Employment Appeal Tribunal (Judge Bourne), which dismissed the first appeal. Permission was granted by Judge Singh for a second appeal by the Plaintiff, raising the construction and meaning of section 111(2) and (3) of the Equality Act 2010 in the context of allegations that Company A caused, induced, or attempted to cause or induce Company B to discriminate against the Plaintiff.

Legal Issues Presented

1. Whether the ET was wrong to dismiss the Plaintiff's claim that Company A "caused" Company B to commit basic contraventions under section 111(2) of the Equality Act 2010 (i.e. the proper test for causation and its application).
2. Whether the ET was wrong to dismiss the Plaintiff's claim that Company A "induced" or attempted to induce Company B to commit basic contraventions under section 111(3) of the Equality Act 2010 (i.e. the proper test for inducement and its application).
3. Whether the Employment Appeal Tribunal applied an incorrect legal test on causation or otherwise erred in approach (including whether remittal was required to resolve legal issues after the EAT's formulation).

Arguments of the Parties

Plaintiff's Arguments (presented by Attorney Cooper)

• The proper test under section 111(2) requires (a) that person A acted because of the protected characteristic (or was significantly influenced by it) and (b) that, but for person A's actions, the direct discrimination would not have occurred (a "but for" test).
• Even if Company B also played a role, liability should follow where Company B's discriminatory opposition was in part prompted by Company B's association with Company A and its position.
• The ET and EAT applied the wrong tests on causation and inducement, or focused improperly on the subjective intention of Company A's representative, and failed to apply the correct legal approach (including by allowing novus actus interveniens to defeat liability where the statutory scheme envisages responsibility for causing another's basic contravention).
• The ET and EAT acted perversely in their findings on fact and law and the EAT should have remitted the matter to the ET under established appellate principles.
• On inducement (section 111(3)), inducement should be established where A intended to persuade B to take action of the relevant kind and B was in fact persuaded, even if the precise form of discrimination differed from what A intended; the facts met that test or at least established attempted inducement.

Defendant's Arguments (presented by Attorney Omambala)

• The ET's findings of fact—that Company A's complaint was "no more than a protest" and that Company A neither instructed nor sought specific action by Company B—were open to the ET on the evidence and cannot be impugned.
• The correct legal approach requires (i) 'but for' causation as a threshold, (ii) the acts complained of to be the effective or direct cause of the discrimination, and (iii) an evaluative assessment (in line with Kuwait Airways and related authorities) as to whether it is fair and just to impose liability; on the ET's findings these elements were not satisfied.
• Company A's complaint did not cause or induce the procedural failings in Company B's investigation and those failings broke the chain of causation; there was therefore no liability under sections 111(2) or (3).
• There was no need to remit the matter: even if the EAT applied a different articulation of the second-stage test, the ET's findings meant there was only one legitimate outcome.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded by identifying (a) the factual findings of the ET about what occurred, and (b) the applicable legal framework for sections 111(2) and (3) of the Equality Act 2010, drawing on the two-stage approach to causation established in Kuwait Airways and related authority.

Key factual findings relied upon were:

• The ET had found the Plaintiff's gender-critical belief to be protected.
• Company B conducted an investigation into certain of the Plaintiff's public posts; the outcome of that investigation (Detriment 4) was held to be discriminatory and to have caused detriment to the Plaintiff.
• The email from Company A's representative (Attorney Medcalf)—the "Company A complaint"—was sent to complain about the Plaintiff's posts and to urge Company B to consider the matter. The ET concluded that the Company A complaint was, on proper reading, "no more than a protest" and an appeal to a perceived ally; Company A and Attorney Medcalf were not seeking specific action by Company B and were not looking for remedial measures to be taken against the Plaintiff.
• The ET found that Company A did not collude with Company B and that Company A did not direct Company B's investigation; although the Company A complaint was the occasion of Company B's investigator considering additional tweets, the ET found that Company B's procedural failings in the reopened investigation were attributable to Company B alone and were the effective cause of Detriment 4.

Legal analysis applied these facts to the law as follows:

1. The court accepted that 'but for' causation is a necessary threshold for section 111(2). However, following Kuwait Airways, 'but for' causation alone is insufficient; a second evaluative stage asks whether it is fair, reasonable or just to hold the alleged cause liable, applying legal "filters" such as scope of duty, remoteness, and novus actus interveniens.
2. The Plaintiff argued that section 111(2) should import as a separate threshold the mental element required for the underlying discrimination (i.e. that Company A was "significantly influenced" by the protected characteristic). The court held instead that such mental influence is a relevant factor to be considered at the second-stage evaluative inquiry rather than a separate, mandatory threshold within section 111(2).
3. Applying the factual findings, the ET's conclusion that Company A's complaint was merely a protest meant that Company A's causal potency was limited; Company B's subsequent investigatory failures and the way Company B handled the investigation operated as the effective cause of the discrimination (novus actus interveniens). Accordingly, the ET was entitled to find that Company A did not cause or induce the basic contravention under section 111(2) or (3).
4. On inducement (section 111(3)), the Plaintiff's case required evidence that Company A intended to persuade Company B to take action of the relevant kind and that Company B was persuaded to do so. The ET found no such intention or persuasion; the complaint was not aimed at achieving specific disciplinary or exclusionary action by Company B. Therefore inducement and attempted inducement failed on the facts.
5. The EAT's analysis (Judge Bourne) had applied the Kuwait Airways two-stage approach and found that the ET's factual conclusions were open to it and that, on those findings, Company A was not liable. The court found no basis to overturn those conclusions or to remit the matter to the ET because the outcome under the proper legal test was inevitable on the ET's factual findings.

Holding and Implications

HOLDING: The appeal is DISMISSED. The court upheld the ET's and EAT's decisions that Company A did not cause or induce, nor attempt to cause or induce, Company B to discriminate against the Plaintiff under sections 111(2) and (3) of the Equality Act 2010.

Implications

• Direct effect: The Plaintiff's second appeal against Company A fails; the finding that Company B committed basic contraventions and the compensatory award against Company B remain.
• Legal consequence: The court applied the Kuwait Airways two-stage framework to section 111(2): (i) 'but for' causation is a threshold requirement; (ii) a subsequent evaluative judgment (including consideration of novus actus interveniens and related legal filters) determines whether it is fair and just to impose liability on the alleged cause. Mental influence relevant to the basic contravention is a factor for the evaluative stage rather than a separate statutory threshold in section 111(2).
• No broader novel precedent was created: the decision upheld established principles (but for causation as threshold; evaluative second-stage; novus actus interveniens as a limiting filter) and applied them to the specific facts, concluding on the ET's findings that Company A's complaint was only an occasion for Company B's report and not an effective cause of the discriminatory outcome.

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