We consider the Northern Ireland Court of Appeal's decision in a controversial case concerning the directors of a bakery who refused to decorate a cake with the caption 'Support Gay Marriage', due to their devout Christian beliefs (Lee v McArthur & Others [2016] NICA 39).

Facts

The defendants were the limited company, Asher's Bakery, and its directors (Ashers). The directors were Christians who opposed the introduction of same-sex marriage as they believed that it was contrary to God's law.

Ashers provided a customised cake making service and the claimant, Mr Lee, placed an order for a cake that had a colour picture of 'Bert and Ernie' – the logo for his organisation QueerSpace – and a headline stating 'Support Gay Marriage'.

Ashers later explained that the order could not be fulfilled as the bakery was a Christian bakery and confirmed that they should not have accepted the order. Mr Lee was given a full refund.

Ashers said that the order for the cake had been cancelled because of the directors' religious beliefs and the fact they were opposed to a change in the law regarding gay marriage.

Mr Lee brought a claim for damages for breach of statutory duty in and about the provision of goods facilities and services under the Equality Act (Sexual Orientation) Regulations (NI) 2006 (the Regulations).

County Court Decision 

The judge accepted that the directors had a Christian belief that was genuinely and sincerely held, however she found that what Mr Lee wanted Ashers to do would not require them to promote or support gay marriage contrary to their deeply held religious beliefs.

The judge found that there had been direct discrimination against Mr Lee contrary to the Regulations. Additionally, she found that if she had not reached a finding of direct discrimination, there had also been indirect discrimination for which there could be no justification.

The judge took into account the directors' rights under the Human Rights Act 1998 (in particular Article 9 – the right to freedom of thought, conscious and religion) but found that while the directors were entitled to manifest their beliefs, this must be done in accordance with the law. That included not manifesting those beliefs in the commercial sphere if the manner of doing so was contrary to the rights of others. Ashers appealed.

Northern Ireland Court of Appeal decision 

The Court of Appeal agreed with the County Court that this was a case of direct discrimination – there was a clear association between the message on the cake and the gay and bisexual community. Consequently the protected characteristic was the sexual orientation of that community and there was associative discrimination.

The Court of Appeal could not support the argument that the Regulations should be 'read down' to respect Ashers' human rights. It confirmed that the Regulations should be interpreted in accordance with their natural meaning, namely the need to protect against arbitrary discrimination.

The Court did confirm that it was within Ashers' power to choose to provide a particular service to all or to none (so for example they could have refused to make any cake that contained a religious or political message), but they could not decide not to provide a service to a selection of customers whose views conflicted with their own.

Comment

Although this is not directly an employment case, it deals with the important question of a conflict between a protected characteristic and a human right. This is an issue that we see frequently in employment law, with employers seeking to do their best by all parties who want their rights respected. However, the decision by the Court of Appeal maintained a similar approach to that taken in employment cases, namely that Article 9 should be applied restrictively especially when it conflicts with other protected rights.

This case also has a significant impact on businesses that provide goods or services and follows on from the case of Bull v Hall [2013] UKSC 73 where hoteliers, who were devout Christians, only provided double bedrooms to heterosexual couples. In that case the Supreme Court also found that such an approach was direct discrimination.

The Equality Act 2010 applies to a much wider range of scenarios than just employment. For example, it contains obligations on any business or person that provides goods, facilities and services to the public and on education providers not to discriminate against people needing their services.

While the Ashers bakery case concerned the sexual preference of the customer, this duty also arises in relation to other protected characteristics (eg disability) and service providers also have an anticipatory duty to make reasonable adjustments for disabled customers.

We have seen an increasing trend in recent years for customers who are dissatisfied with a service to allege discrimination and Bond Dickinson's employment team has advised a number of businesses on their wider obligations under the Equality Act. From an HR perspective, our view is that your equality and diversity policy and diversity training should not just be focussed on employment issues. It is important that customer facing employees are aware of their obligations towards customers. An employer that integrates an inclusive approach to equality and diversity as the core of its business could seek to use the 'reasonable steps' defence to avoid liability in the unfortunate event that an employee discriminates against a service user.