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The most expensive cake in history…

Mr Lee ordered a cake which was to depict an image of Sesame Street characters Bert and Ernie and a slogan in support of gay marriage. Having paid for the order, Mr Lee received a telephone call from the directors of the bakery to say that the order could not be fulfilled as the bakery was a Christian business.

Mr Lee brought proceedings in the Northern Irish County Court against the bakery and the directors personally. He claimed that he had been discriminated against on the grounds of his sexual orientation and political opinion. The bakery and directors denied any discrimination, claiming that the order was cancelled because of the message on the cake, rather than Mr Lee’s sexual orientation or political views. They claimed that they were entitled to refuse to supply services to customers under their right to freedom of thought, conscience and religion under Article 9 of the European Convention on Human Rights (ECHR).

Decision

The Supreme Court addressed the three main issues of the case in turn. The Court set out that, in terms of the sexual orientation claim, the bakery had refused to bake the cake based on the message that was printed on it, not because of the sexual orientation of the customer. If anyone, irrespective of their sexual orientation, had ordered the same cake it would have been refused by the bakery as they too would be asking the bakery to bake a cake that supported gay marriage. The support for gay marriage is not confined to gay people and so ‘in a nutshell, the objection was to the message and not to any particular persons’. It also set out that discrimination by association did not apply as ‘mere association with a concept of a protected characteristic is not sufficient’.

Secondly, the Court dealt with the claim for political discrimination under the Fair Employment and Treatment (Northern Ireland) Order 1998 (which is unique to Northern Ireland). The Court acknowledged that there was a stronger link between the cake and political opinion but it dealt with this claim in a similar way to the sexual orientation claim – that the baker’s objection to the cake was not the political opinion of the customer but that the cake would have them promote a particular message that they objected to.

Finally, the Court looked at the application of the ECHR as the bakery’s argument was that they were entitled to refuse under the convention. The Court decided that if the bakery had been required to bake the cake it would have meant that the bakers were being required to express a message with which they disagreed and to bake the cake would have interfered with the right to freedom of expression (which included the freedom not to express a belief).

Comment

Whilst not an employment case, the fundamental principles track across to an employment context. The key aspect of the decision is that it differentiated between people and opinion – in other words, anyone can believe in and support gay marriage, not just gay people.

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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