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Balancing protected characteristics: B&B discriminated against gay couple by refusing accommodation

In the case Black and other v Susanne Wilkinson [2013] EWCA Civ 820 the Court of Appeal has upheld an earlier decision that a bed and breakfast owner, Mrs Wilkinson, discriminated against a homosexual couple by refusing to allow them to stay in a double room.

Mrs Wilkinson is a devout Christian and she tried to justify her decision on the basis that she believes that homosexual sexual relations are wrong.  She maintained that this was not discrimination on the basis of sexual orientation itself, but about her beliefs about sexual relations.  She said that she would similarly have refused to allow an unmarried heterosexual couple to book a double bedroom on the grounds that she believes sexual relations outside marriage are wrong.

The Court found that her decision was “direct” discrimination, meaning that Mrs Wilkinson had not allowed the couple to share the room simply because they were homosexual.  It is not possible to justify direct discrimination.

The Court also went on to consider the issue of “indirect” discrimination.  This is where a policy or practice disadvantages a particular group.  The Court found this was potentially indirect discrimination since Mrs Wilkinson’s policy not to allow homosexual couples to share a room disadvantaged homosexuals.

It is possible for indirect discrimination to be justified, and Mrs Wilkinson sought to do so by citing her rights to manifest her Christian religion and her rights to enjoyment of her home under the European Convention on Human Rights.

The Court then had to balance the couple’s rights against Mrs Wilkinson’s rights.

Parliament has attached great importance to protecting people against discrimination on the grounds of sexual orientation and priority will only ever be given to religious belief in narrowly circumscribed circumstances.  This, balanced with the fact that Mrs Wilkinson had failed to show that a restriction of her rights would cause her serious economic harm had she been prevented from refusing rooms to homosexual couples, led the Court to decide that Mrs Wilkinson was not able to justify her treatment of the couple by reference to her right to manifest her religious beliefs or to enjoy her home.

Comment

This is another in a line of cases which seeks to balance people’s rights to manifest their religious belief in a way which infringes on the rights of others.  The trend to these cases is that, although it is theoretically possible for religious rights to outweigh other rights, this is a high hurdle and the balance lies in favour of other rights.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further