Where an employee had been dismissed on the ground of medical incapacity while his contractual...
Bakers did not discriminate against gay man
Lee v Ashers Baking Company Ltd
A bakery did not discriminate against a gay man on the grounds of his sexual orientation or political belief when it refused to supply a cake with a message on it supporting gay marriage.
Mr Lee, a gay man, ordered a cake from a bakery called Ashers in Northern Ireland. He wanted ‘Support Gay Marriage’ iced on the top of it. The bakery originally agreed to bake the cake and took Mr Lee’s money but later decided to tell him that it could not bake the cake as two directors of the bakery regarded the message as fundamentally against their Christian beliefs. Mr Lee referred the matter to the Equality Commission of Northern Ireland which brought an action for discrimination in the supply of goods and services and contrary to specific protection against religious belief and political opinion discrimination in Northern Ireland - the Fair Employment and Treatment (Northern Ireland) Order 1998.
Mr Lee was successful at first instance. The judge found that Mr Lee’s sexual orientation was not the reason for cancelling the order; rather it was the opposition of two directors of the bakery to same-sex marriage which it viewed as ‘sinful’. The judge accepted that Ashers would have supplied Mr Lee with a cake without the message ‘Support Gay Marriage’ and would also have refused an order for a cake with the same message from a heterosexual customer. However, the ground for the treatment was Mr Lee’s support for same-sex marriage, which is ‘indissociable’ from sexual orientation. Ashers cancelled the order because it opposed same-sex marriage, which is inextricably linked to persons of a particular sexual orientation. The court accepted that support for same-sex marriage is covered by the 1998 Order and that the two directors treated Mr Lee less favourably because they disagreed with Mr Lee’s religious and political opinion.
On appeal, the Northern Ireland Court of Appeal (NICA) held that the cancellation of the order was direct discrimination on the ground of sexual orientation and quoted Lady Hale from the case of Bull v Hall in which she said: ‘the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification’. The bakery appealed.
Supreme Court judgment
The Supreme Court unanimously allowed the bakers’ appeal.
The two issues were: was the refusal to serve Mr Lee direct discrimination on the grounds of sexual orientation and/or political belief? It was neither according to the Supreme Court.
As for direct discrimination on the grounds of sexual orientation, the bakery’s refusal could not qualify as such because its objection was to the message and not the messenger. Mr Lee wasn’t denied the cake because of his sexual orientation or anyone he associated with – anyone who’d asked for such a cake, regardless of their sexual orientation, would have been treated similarly. This was against the background of a bakery that both employed and served gay people.
Lady Hale said that the court had misunderstood ‘indissociability’. It comes into play only where the express or overt criterion relied on as the reason for less favourable treatment is not the protected characteristic itself but some proxy for it. She went back to the case of Bull v Hall, where letting double-bedded rooms to married couples but not to civil partners was directly discriminatory because marriage was (at that time) ‘indissociable’ from heterosexual orientation. This can be contrasted with support for gay marriage, which is not a proxy for any particular sexual orientation, since people of all sexual orientations can and do support gay marriage.
The Supreme Court also rejected the argument that this was ‘associative’ direct discrimination, i.e. because Mr Lee was likely to associate with the gay community. That was an insufficiently close connection with sexual orientation. The court did not agree with the NICA that the benefit from the message or slogan on the cake could only accrue to gay or bisexual people because ‘it could also accrue to the benefit of the children, the parents, the families and friends of gay people who wished to show their commitment to one another in marriage, as well as to the wider community who recognise the social benefits which such commitment can bring’.
As for discrimination on the grounds of religious belief or political opinion, the Supreme Court relied heavily on the rights relating to religion and expression under art. 9 and 10 of the European Convention on Human Rights. They include the right not to be obliged to manifest beliefs one does not hold. Infringement of those rights could not be justified by an obligation to supply a cake iced with a message with which the bakery profoundly disagreed.
Link to judgment: https://www.bailii.org/uk/cases/UKSC/2018/49.html
Discrimination on the grounds of sexual orientation is not just about the sexual orientation of the individual but is ‘on grounds of sexual orientation’. This means that harassment can occur when a woman is teased about her gay brother. However, this case appears to place limits on how far this will extend and an understanding that support for gay marriage goes much further than those with that protected characteristic.
Although this was not an employment case and was heard in the civil courts (as employment tribunals do not currently have any jurisdiction in non-employment cases) the principles are nevertheless of interest to employers. If, in the course of employment, an employer had refused to allow an employee’s cake into the Macmillan fundraising cake making contest, which had a similar slogan on, then this is would have been unlikely to amount to discrimination.