The Supreme Court decision in the Northern Ireland ‘gay cake’ case has hit the headlines this month, but what does this mean for employers?

Lee v Ashers Baking Company Limited and others [2018] UKSC 49

Facts

The case concerned the refusal by a bakery, owned and run by two Christians, to provide a cake decorated with the words ‘Support Gay Marriage’. The claimant, a gay man, brought a claim for direct discrimination both on the grounds of sexual orientation and on the grounds of religious belief or political opinion under the applicable Northern Irish legislation. The claim was upheld by both the county court and Northern Ireland Court of Appeal.

Supreme Court decision

The Supreme Court has upheld the bakery’s appeal, finding that the bakery did not directly discriminate on the grounds of sexual orientation, nor on the grounds of religious belief or political opinion. The court was satisfied that the bakery had refused to bake the cake because they disagreed with the message painted on it, rather than because of the customer’s sexual orientation. There was no evidence that the bakery objected to the sexual orientation of the customer, nor that of those with whom the customer associated. In relation to the religious belief or political discrimination claim, baking the cake would have interfered with the bakery owners’ human rights (freedom of expression) not to express a message with which they profoundly disagreed.

Consequences

The Supreme Court’s decision in the ‘gay cake’ case arguably raises more questions than it answers, and we can expect to see further litigation in this area.

The case is directly relevant to service providers, but potentially also has wider relevance in the context of associative discrimination and also in relation to the clash of rights in the workplace setting, between religious beliefs and an individual’s sexual orientation.

The case does not establish a right for employers (or their workers) to discriminate against individuals on the grounds of their sexual orientation, but it might make it harder for individuals to establish discrimination by association – an area of discrimination law for which there is little precedent authority.

Association with a protected characteristic must be sufficiently close to give rise to a claim, and this was found not to be the case with the bakers’ refusal to bake the cake. The court’s decision also references and casts some doubt on the Court of Appeal’s 2008 decision in the case of English v Thomas Sanderson Blinds Ltd, in which the claimant succeeded in his claim for sexual orientation discrimination by association, because those harassing him knew that he was not gay.