The Claimant's claim succeeded against the second respondent (Garden Court Chambers - GCC) and the third respondents, who have played no part in this appeal. In particular the ET found that they had directly discriminated against her because of the protected characteristic of belief, contrary to section 47 (read with sections 4, 10 and 13) of the Equality Act 2010. Her claim against the First Respondent, Stonewall, failed. The Claimant appealed, claiming that Stonewall, through the acts of an employee, caused or induced one of GCC’s discriminatory acts against her contrary to section 111 of the 2010 Act. She contended that the facts as found by the ET were consistent only with a ruling that Stonewall did cause (ground 1) or induce (ground 2) the discrimination.

The EAT dismissed the appeal. A claim for causing a “basic contravention” contrary to section 111(2) will not succeed unless (in the terminology of the section) person A actually caused the basic contravention. That means not merely that person A caused person B to commit a particular act or omission inflicting a detriment on person C, but that person B was caused by person A to commit the act or omission because of a protected characteristic of person C. Further, by analogy with the approach to loss in Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 WLR 1353 HL, a claimant must show first that person A’s conduct causally contributed to person B’s commission of the basic contravention on a “but for” basis and, second, that the causal connection is such that, having regard to the statutory context and to all the facts of each case, making person A liable would be “fair or reasonable or just”, those adjectives being interchangeable. Whilst a claim is more likely to succeed if what person A did was significantly influenced by person C’s protected characteristic, there is no fixed mental element for an infringement of section 111(2). Foreseeability of the outcome will often be relevant in the application of the test, but liability does not depend on a test of reasonable foreseeability.

The word “induce” in section 111(3) is broadly synonymous with “persuade”. In one case it could consist of pure verbal persuasion, and in another it could involve an element of carrot or stick. Person A must intentionally induce person B to carry out an act or omission which contains all the elements of the statutory tort that is a “basic contravention”, including any mental element of the basic contravention.

In this case the alleged inducement or causative act was the making of a complaint against the Claimant and the basic contravention was the determining of the complaint in a discriminatory way. The Employment Tribunal found that the complaint was motivated by the Claimant’s protected characteristic of belief. But it was made as a protest and “without any specific aim in mind except perhaps a public denial of association with her views”. The Employment Tribunal found that it contained no element of threat. Those facts did not compel the conclusion that it was likely that, when determining the complaint, the Second and Third Respondents would be significantly influenced by the Claimant’s protected belief. If, contrary to the EAT’s judgment, liability depended on reasonable foreseeability, then that test was therefore not satisfied. On the Employment Tribunal’s findings of fact, it was not bound to conclude that it was fair or reasonable or just to find the First Respondent liable. Although the complaint was a “but for” cause of the eventual outcome, responsibility for determining the complaint in a discriminatory way lay only with the Second and Third Respondents.