The Equality Act 2010, provides protection against discrimination in the employment arena and also discrimination in relation to the provision of services, goods and facilities. Similar protections are set out in legislation for Northern Ireland.
We have seen a number of cases over the years involving clashes between competing interests in the discrimination arena. Most recently there have been a number of cases involving religious belief on the one hand and sexual orientation on the other.
The Northern Ireland case of Lee v Ashers Baking Co Ltd involved a clash between the religious beliefs of the Christian directors of a bakery, and their right to manifest those beliefs, and a customer’s right not to be discriminated against on grounds of sexual orientation. In this case the customer’s right not to be discriminated against trumped the rights of the bakery directors to manifest their Christian religious beliefs regarding same sex marriage.
Facts & Decision
The facts of this case arose against the backdrop of the referendum on same sex marriage in Northern Ireland which took place earlier this year.
The plaintiff, Mr Lee, was a gay man living in Northern Ireland and was actively involved an organisation which supported the rights of lesbian, gay, bisexual and transgendered people called QueerSpace.
Mr Lee was due to attend an event on 17 May 2015 to celebrate the end of anti-homophobia week. In anticipation of this event Mr Lee placed an order with Ashers Bakery for a cake to be decorated with the image of Burt & Ernie (two characters from the Muppet Show/Sesame St) and a caption which said “Support Gay Marriage”.
The bakery initially accepted Mr Lee’s order and took payment for the cake. However, after a few days the Bakery decided to cancel Mr Lee’s order. The bakery told Mr Lee that his order could not be fulfilled as they were a Christian business and it would be against their Christian beliefs to make the cake. Mr Lee was issued with a full refund.
With the backing of the Equality Commission for Northern Ireland Mr Lee took legal action against the bakery under the Northern Irish equality legislation regarding the provision of services, goods and facilities. He alleged that the Bakery’s refusal to make his cake amounted to discrimination on the grounds of sexual orientation.
The bakery defended the claim by arguing that they had not treated Mr Lee unfavourably as they would have refused a similar order from a heterosexual customer. The judge rejected this argument and held that the bakery’s refusal to bake Mr Lee’s cake amounted to direct discrimination on the grounds of his sexual orientation.
In coming to its decision, the court relied substantially on the judgment in the well-publicised English case of Bull & Bull v Hall & Preddy where the Christian owners of a B&B were found to have directly discriminated against a homosexual couple when they refused, on religious grounds, to allow them to have a double room.
The court also rejected the bakery’s additional argument that they, as a ‘Christian business’, were entitled to rely on the religious beliefs exemption in the legislation. The judge disagreed, ruling that “the defendants are not a religious organisation; they are conducting a business for profit notwithstanding their genuine religious beliefs” so the exemption did not apply.
Impact for Employers
Although this is a Northern Irish case, this ruling is likely to be relevant for businesses in England and Wales seeking to comply with the provisions of the Equality Act 2010.
This case involved the owners of a business discriminating in relation to the provision of services. However, employers can also be liable for discriminatory behaviour by their employees. Employers would be well advised to provide training to their staff and have appropriate policies in place to ensure that all employees are aware of the risks of discrimination when conflicts arise between their own beliefs and the rights of customers or clients.