In Lee v Ashers Baking Co Ltd, a case that has attracted much attention in the press, the Northern Ireland County Court held that a bakery's refusal to bake a cake for a homosexual customer with the caption “Support Gay Marriage” amounted to direct discrimination on grounds of his sexual orientation. Although this case is not from the employment context, it serves as a useful reminder to all organisations that the scope of the Equality Act 2010 is much wider than that, and deals also with the provision of goods and services, for example. Although it was decided under the regulations governing such matters in Northern Ireland (“the 2006 Regulations”), it illustrates the issues that a business in England and Wales may face under the Equality Act 2010.
Mr Lee, a volunteer with the gay rights campaign group QueerSpace, had ordered the cake to mark the election of the first openly gay mayor in Northern Ireland. He contended that the bakery, in refusing to bake the cake, was discriminating against him because of his sexuality. Ashers argued that it was not aware of Mr Lee’s sexuality. The bakery said it was refusing him access to its goods and services because of the message he wanted on the cake, which was inconsistent with the strongly-held Christian religious beliefs of the family which owns the bakery.
Under the 2006 Regulations, a person discriminates against another on grounds of sexual orientation if he treats that person less favourably than he treats or would treat another person. Ashers argued that they had not treated Mr Lee unfavourably as they would have refused a similar order from a heterosexual customer. The judge held that this was an incorrect approach to adopt and that the correct comparator should be that of a heterosexual customer placing an order with the caption “Support Heterosexual Marriage”. The bakery was therefore held to have directly discriminated against Mr Lee on grounds of sexual orientation.
On 28 May 2015, the BBC reported that Ashers is to appeal against the decision.
Although this was a Northern Irish case, the judgment referred to the UK Supreme Court decision in Bull and another v Hall and another, which found in favour of a gay couple who had not been allowed to take up their reservation at a B&B run by Christians. It illustrates the tensions between the anti-discrimination provisions under the Equality Act 2010 and the right to express religious beliefs and freedom of expression under the European Convention on Human Rights. Whilst many employers will already be familiar with the issue of discrimination in an employment context, this case is a reminder that where an organisation is run for the purpose of providing a service to the public, the law requires that it should provide that service equally to everyone. Whilst the particular beliefs of the individuals working within the organisation must be acknowledged, respected and protected, those beliefs will not entitle the organisation to discriminate against members of the public in providing services to them.