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Cake baking: It’s a balancing act

The Equality Act (Sexual Orientation) Regulations (NI) 2006 make it unlawful to discriminate against anyone on the grounds of sexual orientation in the provision of goods, facilities or services. In the latest case of Lee v Ashers Baking Company Limited, the Northern Ireland Court of Appeal upheld a County Court decision that a Christian bakery directly discriminated against a customer, when it refused to supply a cake with a slogan which supported same sex marriage.

Background

Mr. Lee, a gay man associated with an organisation called QueerSpace campaigning for the LGBT community, approached Ashers Bakery to produce a customised cake marking the end of Northern Ireland Anti-Homophobic week. He asked for the cake to depict the characters Bert and Ernie (the logo for QueerSpace) and include the headline caption ‘Support Gay Marriage.’ Although initially Mr Lee successfully placed his order, the bakery subsequently contacted him and said it could no longer fulfil it, as it was a Christian business. Mr Lee brought a claim of discrimination in the provision of goods and services.

The bakery owners, Mr and Mrs McArthur, accepted that the cancellation of the order was because of their religious beliefs and opposition to the introduction of same sex marriage in Northern Ireland.

Upholding the decision of the County Court, the Court Of Appeal stated that the refusal to supply the customer with the cake amounted to direct discrimination and that the case engages “…the crucial issue of the manner in which any conflicts between the LGBT community and the faith community in the commercial space should be resolved..”

The argument by the bakery that this was not direct discrimination as the requirement for a protected personal characteristic could not be established by a difference in treatment in respect of a message on a cake was rejected by the Court of Appeal. The Court went on to say:

“The appellants would not have objected to a cake carrying the message ‘Support Heterosexual Marriage’ or indeed ‘Support Marriage’. We accept that it was the use of the word ‘gay’ in the context of the message which prevented the order from being fulfilled.”

“The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.”

The human rights angle

Mr and Mrs McArthur argued that their right to freedom of thought, conscience and religion (Article 9) and to freedom of expression (Article 10) of the European Convention on Human Rights should also be taken into account in reading the equality legislation. Again, the Court of Appeal rejected this stating: “If businesses were free to choose what services to provide to the gay community on the basis of religious belief the potential for arbitrary abuse would be substantial.”

The Court also went on to say that producing something for a customer does not mean an endorsement of those customer’s beliefs: “The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either”.

Comment

Whilst this case relates to the provision of goods and services the decision is also of interest to employers, being the latest in a line of cases which push the boundaries of protection and address the balancing act between manifesting religious beliefs and protecting individuals against discrimination because of their sexual orientation. For example in the case of Black and others v Susanne Wilkinson the Court of Appeal upheld an earlier decision that a bed and breakfast owner discriminated against a homosexual couple by refusing to allow them to stay in a double room.

This latest case certainly doesn’t buck the current trend, showing that the Courts will be very reluctant to allow the protection of religious beliefs at the cost of another individual’s protected rights.

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Blog posted 26 October 2016

 

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