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Discrimination is no Piece of Cake

Occasionally, situations arise which place a conflict between different ‘Protected Characteristics’ e.g. sex, race, disability, sexual orientation, religion.

Mainstream news coverage this week has looked at the difficult balancing act that businesses (and Courts) have to deal with when Protected Characteristics collide, covering the Northern Irish case of Lee v Ashers Baking Co Limited.

Lee v Ashers Baking Co Limited and Others

Mr Lee is a gay man who is associated with QueerSpace, a volunteer-led organisation for the lesbian, gay, bisexual and transgendered community in Northern Ireland. There had been much political debate in Northern Ireland as to whether similar legislation to that in England and Wales and Scotland should be introduced, enabling same sex couples to marry.

Mr Lee was planning to attend a private event to mark the end of anti-homophobia week and the political momentum towards legislation for same-sex marriage. He placed an order for a cake for the event with the bakery, displaying a picture of Sesame Street characters Bert and Ernie, the logo of QueerSpace and the headline caption “support gay marriage”. Following his order, Mr Lee received a telephone call from Mrs McArthur (one of the bakery’s directors) to say that the order could not be fulfilled as they were a Christian business. Mr Lee told the Court that the refusal of the service made him feel like a “second class citizen”, and that he was not asking the bakery to share or support his perceived political views on gay marriage; he was simply asking them to provide him with the service which they advertise in their shops.

Mrs McArthur, her husband (also a director) and their children are Christians. Mrs McArthur told the Court that they seek to live at all times in accordance with the doctrines and teaching of the Bible, that marriage is to be between a man and a woman and that no other form of marriage is permissible according to God’s law. Mrs McArthur said that, if they provided a cake in the form requested by Mr Lee, she would feel that she was betraying her faith, but said that this was not related to Mr Lee’s sexual orientation. Whilst the bakery’s name is derived from a reference in the Book of Genesis, it does not have any religious objectives in its Memorandum and Articles of Association, its advertising material or its terms and conditions.

Mr Lee issued Court proceedings against the Bakery and also Mr and Mrs McArthur personally, on the basis that he was discriminated against on the grounds of his sexual orientation and political opinion or religious belief, which is prohibited by Northern Irish law. The defendants denied that they discriminated unlawfully against Mr Lee and asserted that they were entitled to refuse to supply services under their right to freedom of thought, conscience and religion under Article 9 of the European Convention on Human Rights (ECHR).

Decision

The Court found that Mr and Mrs McArthur directly discriminated against Mr Lee on the grounds of his sexual orientation for which there could be no justification. Whilst a statutory exemption exists for organisations such as churches relating to religion or belief, the bakery was not a religious organisation and Mr and Mrs McArthur conduct their business for profit. Therefore, the statutory exemption did not apply in this case. The bakery was contracted on a commercial basis to bake and ice cakes with entirely lawful graphics and to be paid for it. The same findings were made in relation to Mr Lee’s religious beliefs and/or political opinion.

The Judge commented that homosexuals are entitled to be treated equally by those in the business of supplying goods, facilities and services. Any organisation that opens a business to the public for the purpose of providing goods, facilities or services has to be prepared to accept the public as a whole.

The Court considered the competing rights of Mr and Mrs McArthur, namely their right to freedom of thought, conscience and religion, and to manifest their religion without unjustified limitations under Article 9. The Judge commented that sexual orientation is a highly-protected right under the ECHR. The limiting of Mr and Mrs McArthur’s ability to manifest their religious beliefs was necessary in a democratic society and a proportionate means of achieving the legitimate aim of protecting the rights and freedoms of Mr Lee.

The bakery was also found to be vicariously liable to Mr Lee for the actions of Mr and Mrs McArthur.

Comment

Whilst decided under Northern Irish law (not the law of England and Wales) and decided in a commercial context, this case nevertheless acts as a stark reminder to employers that a business can be vicariously liable for the actions of its employees and directors in the course of their employment, whether or not those actions were carried out with the employer’s knowledge or approval, and that personal liability can also arise in such cases. It reiterates that religious beliefs do not automatically exempt service providers from observing the laws on equality.

Back in February 2012 we reported on the UK case of Christian hotel owners who were found to have discriminated against civil partners when they refused to allow them to share a double room. That decision confirmed that businesses offering services to the public must do so in a non-discriminatory way. In this case, the Judge’s comment that Mr and Mrs McArthur must not manifest their religious beliefs in the commercial sphere if it is contrary to the rights of others echoes this point.

Both religion and belief and sexual orientation are Protected Characteristics under the Equality Act 2010. In an employment context, difficulties can arise when Protected Characteristics clash, such as the right to hold religious beliefs versus protection against sexual orientation discrimination.  Under the ECHR, everyone has the right to freedom of thought, conscience and religion; however, this right is limited as necessary in a democratic society or for the protection of the rights and freedom of others.  Court and Tribunal decisions looking at the balancing act show a trend against ‘thought, conscience and religion succeeding in justifying discrimination’.  Employers and businesses providing goods and services should be wary when competing Protected Characteristics arise.

If you have any queries relating to discrimination, equal opportunities or if you have any other employment law or HR queries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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