The facts

Ashers Bakery is known for its Christian beliefs. Mr Lee asked the bakery to make a cake with the wording "Support Gay Marriage", something which was contrary to the bakery owners’ views. They therefore refused Mr Lee’s order.

Mr Lee had raised a successful challenge under the applicable equalities legislation in Northern Ireland, on the basis that the bakery (as a service provider) should not discriminate as to its customer base or the services it offers.

The court’s findings

The Court of Appeal in Northern Ireland dismissed the bakery owners’ appeal and found that their refusal to prepare the cake was discriminatory.

It was held that the bakery had refused Mr Lee a service as a result of him being gay or being associated with the gay community. Ashers Bakery would not have refused a customer who asked for a cake with “support marriage” or “support heterosexual marriage” on it. This amounted to direct discrimination.

It was held that the "answer is for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service. Thus the supplier may provide the particular service to all or to none but not to a selection of customers based on prohibited grounds". The bakery is therefore able to reject orders with one political message, which may or may not be against their beliefs, provided they do not accept orders which promote alternative views. In other words, a company cannot refuse a service to someone because of a protected characteristic which it would provide to others. Consequently, Ashers Bakery will be restricting their cake ordering service to birthday cakes.

Freedom of expression?

The Court of Appeal touched on this point, saying that free speech had not been infringed. The act of icing a cake does not cement one’s beliefs – the example used was that putting witches on a Halloween cake does not indicate that the baker supports witchcraft.

Impact on businesses?

In the commercial sphere, the Northern Irish Court of Appeal made it clear that personal beliefs of the owners/managers of a company cannot impact on the business they will accept. If there are, for example, certain views that a business knows it would not feel comfortable associating itself with, steering clear of expressing any views on that topic (both those they agree with and those they do not) is the safest option. Cherry-picking is likely to lead to a real risk of direct discrimination.

This judgment is based on Northern Irish legislation: the Equality Act (Sexual Orientation) Regulations (NI) 2006 and the Fair Employment and Treatment (NI) Order 1998. Given the similarities in the underlying principles underpinning the legislation, it seems likely that the same decision would have been reached if the case had related to the UK and been decided under the Equality Act 2010. As in Northern Ireland, it is not possible to objectively justify direct discrimination in the UK once this is established.