Last week, the UK Supreme Court handed down its judgement in Lee v Ashers Baking Company Ltd and Others. The Supreme Court unanimously reversed the decision of the Northern Ireland Court of Appeal, holding that the bakery would have refused the particular cake to anyone regardless of their personal characteristics.
Consequently, the Supreme Court held that there had been no discrimination on the grounds of sexual orientation or otherwise.
Mr and Mrs McArthur owned a bakery business named Ashers Baking Company Ltd that offered a ‘Build-a-cake’ service by which customers could request images or inscriptions to be iced onto a cake. In May 2014 Mr Lee, a gay man, placed an order with Ashers to bake a cake which he intended to take to an event organised by campaigners for same-sex marriage in Northern Ireland.
Mr Lee’s order was for the cake to be iced with a depiction of the cartoon characters ‘Bert and Ernie’ and the words ‘Support Gay Marriage’.
Mrs McArthur initially took the order but, after discussions with Mr McArthur, later advised Mr Lee that she could not in conscience produce such a cake since Ashers Bakery was a “Christian business”. Mrs McArthur’s reasoning was that she, along with her husband, were Christians who held the religious belief that the only form of marriage consistent with the Bible’s teachings, and acceptable to God, was that between a man and a woman.
Mrs McArthur then provided Mr Lee with a refund and he was able to secure a similar cake from another bakery in time for the event.
Mr Lee then brought a claim against the McArthurs and Ashers Bakery for direct and indirect discrimination on the grounds of sexual orientation, political opinion, and religious belief. Mr Lee was successful at first instance when the County Court held that the McArthurs and Ashers had directly discriminated against Mr Lee by refusing to bake a cake with the words “Support Gay Marriage” on it.
This decision was then upheld by the Court of Appeal.
This decision covered four main areas: the sexual orientation claim; the political beliefs claim; impact of ECHR rights; and jurisdiction. However, for our purposes, we will focus on the discrimination aspects of the decision.
The Sexual Orientation claim
The Supreme Court held that the McArthurs and Ashers had not directly discriminated against Mr Lee.
Declining to bake a cake decorated with the words “Support Gay Marriage” did not directly discriminate against Mr Lee on the grounds of sexual orientation.
The objection was to the message on the cake, not any personal characteristics of the messenger, or anyone with whom Mr Lee was associated. Anyone who wanted that message would have been treated the same way. The reason for the McArthurs' refusal was their religious objection to gay marriage. Their objection was to the message and not to any particular person or persons.
The Political Beliefs claim
Protection against direct discrimination on grounds of religious belief or political opinion has constitutional status in Northern Ireland. However, the McArthurs' objection was to being required to promote the message on the cake. Therefore the less favourable treatment was afforded to the message and not to Mr Lee. The evidence was that the McArthurs were prepared to serve Mr Lee in other ways. Consequently the situation was not comparable with people being refused jobs or services simply because of their religious faith but because it was arguable that the message was unable to be dissociated for Mr Lee’s political opinion.
The Court reasoned that what mattered was by being required to produce the cake, as per Mr Lee’s request, the McArthurs were being required to express a message which they profoundly disagreed with. The McArthurs were not refusing to provide their services to Mr Lee because he was a gay man or because he supported gay marriage. Consequently, under articles 9 and 10, the domestic legislation could not be read so as to compel the providers of goods, facilities and services to express a message that they disagreed with unless justification was shown for doing so.
This case is a high profile example of situations that may become more and more common for employers, that of the clash between two protected characteristics. Although this was a case regarding the provision of services, rather than employment, there have been examples of similar conflicts in the workplace, such as registrars with strong Christian beliefs refusing to conduct ceremonies for same-sex couples.
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The balancing act can be a difficult tightrope to navigate for employers – all our specialist employment solicitors are experienced in dealing with discrimination matters under the Equality Act 2010, so please contact us to discuss if you are dealing with a tricky situation in the workplace.