Direct Discrimination and “Cancel culture” – an examination of the Equality Act 2010 - by David James, Advocate

Is “cancel culture” a socially acceptable phrasing for what is actually unlawful discrimination? Can a venue effectively be compelled to host an event from an individual it disagrees with? Has freedom of contract between private individuals been undermined by statutory intervention?

I do not purport to have answers to those questions. However, they have been thrust into the national spotlight over the last few weeks thanks to, among others, the decision of The Stand, a comedy venue in Edinburgh, to cancel a panel discussion involving Joanna Cherry K.C. (that decision was later rescinded).

Ms Cherry is a well-known holder of “gender-critical” views. Such views can amount to protected philosophical beliefs for the purposes of s10 of the Equality Act 2010 (Forstater v CGD Europe [2022] I.C.R. 1). Ms Cherry therefore suggested that the cancellation of the show was discriminatory.

Notwithstanding my lack of expertise or knowledge on the broader societal questions, I hope that I am in a position to shed some light on the relevant provisions of the Equality Act. The matter is relatively unusual for those of us observing, since a reasonable amount of legal correspondence has been made public, and so there is an opportunity to comment on the parties’ respective positions without a judicial opinion having been issued.

As such, I hope to explain why the case against The Stand is not as clear cut as some might suggest.

In doing so, I make clear that I do not and cannot express a view on the moral rights or wrongs of the dispute, of Ms Cherry’s views, or of the ongoing, underlying debates about conflicts of rights or freedom of speech. I am wholly unqualified to do so. The lawfulness or otherwise of The Stand’s initial decision to cancel the event is all I concern myself with in this article.

I assume, for the purposes of this article, that Ms Cherry’s views constitute a protected characteristic. I take the relevant facts from the correspondence of the parties that has been publicly released or as they have been reported. I confine myself to discussing direct discrimination, given that this appears to have been the main issue that has been publicly debated (although I think there may be an interesting if perhaps more difficult indirect discrimination argument).

I also apologise in advance for a necessarily high-level overview of matters. There are undoubtedly statutory nuances which I will skip over in the interests of brevity. For instance, I do not discuss issues of the shifting burden of proof, assuming that at any proof both parties will adduce evidence and the matter will be at large for a Sheriff to determine.

Direct Discrimination and the “reason why”

S13(1) of the Equality Act is admirably concise in setting out the definition of direct discrimination:

“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.”

As mentioned, I assume that Ms Cherry possesses a protected characteristic. It is not disputed that the show was initially cancelled.

However, several cases have emphasised that for an individual to succeed in a claim of direct discrimination, there must be something more than an individual, who possesses a protected characteristic, having suffered treatment which they say was unfavourable (e.g. Bahl v Law Society [2004] I.R.L.R. 799). There must be a causative link between the two. The less favourable treatment must be “because of” the protected characteristic.

Those words have been interpreted by the House of Lords as requiring the decision maker to inquire into the reason why the alleged discriminator acted as they did (Nagarajan v London Regional Transport [2000] 1 A.C. 501; R (on the application of E) v Governing Body of JFS [2010] 2 A.C. 728).

That principle is important in a direct discrimination claim. The complaint cannot be that the less favourable treatment would not have arisen “but for” the protected characteristic. The protected characteristic must be a “significant influence” on the decision to act in the manner complained of for a claim to succeed (Gould v St John’s Downshire Hill [2021] I.C.R. 1).

The principle is illustrated by Page v Lord Chancellor [2021] I.C.R. 912. In that case, a Christian magistrate (and so a member of the English and Welsh judiciary), among other issues, publicly stated in interviews that he would refuse to make an adoption order for a same sex couple should one come before him. His basis for this was his interpretation of Christianity. He was subject to disciplinary proceedings, and asserted that those proceedings amounted to direct discrimination.

However, it was held that there was a distinction between the claimant’s faith, and actions which arose in consequence of that faith. As a magistrate, the claimant took an oath to administer justice equally, and he was giving televised interviews without authorisation stating that he would refuse to adhere to that judicial oath. This unauthorised publicity and public repudiation of his oath was the basis for the disciplinary action, rather than the claimant’s faith itself. Whilst he would not have given those interviews but for his being a Christian, that was a different question from whether the disciplinary action was because of his being a Christian. There was no direct discrimination.

This is where I think the issue with Ms Cherry’s case might have arisen. I understand that The Stand’s initial position was that staff refused to work on the evening of the event in question. The Stand was unwilling to compel staff to work that shift, and so cancelled the event as their view was that there would be safety concerns due to understaffing.

I assume for the purposes of this article that this is a genuine reflection of The Stand’s conscious decision-making process. If it is, the event was arguably not cancelled because of Ms Cherry’s views; rather, it was cancelled because of the refusal of staff to work the event, The Stand’s decision not to compel them to work it, and the resultant concern about staffing levels. The cancellation might not have arisen but for Ms Cherry’s views (in that the staff might not have refused to work at an event with a speaker who held different views), but on that version of events, it would arguably not have arisen “because of” her views. Unless at proof there was sufficient evidence to say that Ms Cherry’s views were actually a significant influence on the decision to cancel the event, contrary to The Stand’s publicly asserted position, the cancellation would arguably not amount to direct discrimination.

Vicarious liability

There are two obvious responses Ms Cherry might make. The first is that an employer cannot hide behind the actions of discriminatory staff members. As such, the refusal by staff to work the event would be the refusal of The Stand itself, and so the “reason why” issue is skirted. That might well be broadly true, but it also may not be quite correct in Ms Cherry’s case.

Generally, the Equality Act imposes duties on organisations rather than on individuals. It is unlawful for a service provider, such as a shop or a swimming pool, to discriminate.

However, there is a recognition that organisations function in the real world through individuals. Vicarious liability operates, via s109(1), such that “[a]nything done by a person (A) in the course of A’s employment must be treated as also done by the employer” (emphasis added).

The most obvious example of vicarious liability would be if a Stand employee working the bar refused to serve Ms Cherry a drink because of her beliefs, while serving others around her. That would be an act in the course of employment, and so the employee’s discriminatory act would be treated as done by the employer. It would plainly, and rightly, be direct discrimination.

There has been a multiplicity of judicial decisions on vicarious liability in recent years (e.g. WM Morrison Supermarkets Plc v Various Claimants [2020] A.C. 989; Barclays Bank plc v Various Claimants [2020] A.C. 973; Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15). An outline of the principles arising from those cases goes well beyond the scope of this article. What is apparent from those decisions, though, is that the outer boundaries of the words “in the course of employment” are not always clear.

The question which arises, then, is whether a refusal to work at all, rather than an act while an individual is at work, entails the worker acting “in the course of employment”.

It may be that at least some of The Stand’s staff who refused to work the event are not employees who are required to work a certain number of shifts in a week or can be compelled to work certain shifts; some zero-hours contracts, for example, allow workers to decline to work shifts that they are offered with no consequence, provided they give sufficient notice (the definition of “employment” in the Equality Act covers both employees in the traditional sense and more casual workers). If a worker was only paid for the shifts that they worked, were flexible about the shifts that they worked, and could work a greater or fewer number of shifts per week effectively at will, there is a real question about whether a refusal to work can be an act “in the course of” employment.

This is not a question I can answer here. Much would depend on the specifics of the staff in question, their contracts, and what actually occurred between them and The Stand. I simply raise it to illustrate the potential issue.

Less favourable treatment and the comparative exercise

The second potential response to the “reason why” conundrum arises from Nagarajan and associated cases.

The Stand might, for instance, attempt to argue that its reason for cancelling the event was due to staffing levels, and so was not because of Ms Cherry’s views. It might also argue that, while it did not want to compel its staff to work the event, that did not amount to subjecting Ms Cherry to less favourable treatment (even if a detriment to Ms Cherry was a consequence of their doing so), given that the treatment of staff is not treatment directed at Ms Cherry.

The argument in response for Ms Cherry might proceed as follows. The reader will recall that s13 requires a comparative exercise. The phrase “less favourable treatment” begs the question; less favourable than whom?

The answer to that is found in s23 of the Act. Basically, what is known as a “comparator” must be an individual who is the same in all material respects except for the protected characteristic (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All E.R. 26). Identifying or constructing appropriate comparators is a technical, difficult, and often litigated exercise, and so I will sidestep having to do so here.

However, the value of having a comparator is that it potentially allows an individual to demonstrate that a putative discriminator’s subconscious motivation, or at least a significant part of their motivation, was the protected characteristic. If an appropriate comparator is identified or constructed, and it is established at proof that the organisation would have acted differently towards that comparator, the obvious (and in some cases, only) inference is that the reason for the difference in treatment is the protected characteristic. This recognises that discriminators might not even be consciously aware that they are discriminating because of a protected characteristic, and allows decision makers to look behind and test asserted, non-discriminatory reasons for actions.

By contrast, if the organisation establishes that they would have acted in the same way towards a comparator, the obvious inference is that the reason for treatment is not the protected characteristic. To use a concrete example, the relevant decision makers in Page would have subjected any magistrate who gave television interviews without prior authorisation, and in those interviews avowed not to follow their judicial oath, to disciplinary processes.

An organisation does not therefore act in a discriminatory manner if they treat an individual with a protected characteristic poorly, provided they treat everybody poorly. The key to a direct discrimination claim is that there must be less favourable treatment, not simply poor treatment. A restaurant which refused to serve anyone would go out of business very quickly, but its inevitable bankruptcy would not be because it was guilty of unlawful discrimination.

Again, I am unable to answer whether The Stand would be able to satisfy a Sheriff that it would have treated an appropriate comparator in the same way. It may well have, after proof. However, Ms Cherry might also be able to establish that The Stand would act or have acted differently towards other comparable individuals in the past (I have not researched whether The Stand has previously hosted events involving individuals with views some might find controversial). The Stand may have initially believed it was acting in a non-discriminatory way, but examination of how it might have treated an appropriate comparator might reveal subconscious discrimination. This might be the means by which Ms Cherry can demonstrate the real reason The Stand acted in the way it did.

My argument, again, is not that one side is correct. Rather, I make the point that the issue is perhaps slightly more nuanced than some might suggest, and that there would be a range of arguments to be canvassed at proof after evidence had been heard.

Conclusion

Ms Cherry’s case throws up a variety of interesting question in the field of discrimination law. As ever with claims under the Equality Act, precision both of thought and of pleading is necessary. The Act is a technical instrument, which requires and rewards careful consideration of the relevant issues.

Protected characteristics are protected for a reason. The societal benefit of outlawing discrimination connected with those protected characteristics is, I hope, obvious. Many of the worst abuses of human rights which have arisen throughout history have had discrimination at their core. More basically, our society is founded upon the rule of law, some conceptions of which entail respect for fundamental human rights.

However, the Equality Act circumscribes certain conduct by certain individuals or organisations in certain areas. It does not render those with protected characteristics immune from criticism or consequence where that criticism or consequence is wholly unconnected to their protected characteristics. Determining where the line is drawn is always dependent upon the facts and circumstances of each case. But the exercise of doing so is often more complicated than it might first appear.

David James is an advocate practising in, among other areas, employment and public law. He has a particular interest in matters arising under the Equality Act 2010. He can be contacted at david.james@themis-advocates.co.uk or 07890 402 075.