Court of Appeal finds unlawful discrimination by bakery, in the case of the Bert & Ernie cake
The Court of Appeal of Northern Ireland has delivered an important Judgment on discrimination obligations and what happens when they conflict.
The Court of Appeal of Northern Ireland has delivered an important Judgment on discrimination obligations and what happens when they conflict. The case of Lee v Ashers Baking Company involved a bakery who refused (on religious grounds) to make a cake with the slogan “Support Gay Marriage”. This has been held to be unlawful direct discrimination on the grounds of sexual orientation.
Mr Lee wanted to mark the end of Northern Ireland Anti-homophobic week with a cake for a private event depicting Bert & Ernie with the slogan “Support Gay Marriage”. Ashers Bakery was run by two Directors who are Christians opposed to the introduction of same-sex marriage. Ashers Bakery provides a customised cake making service and advertises a broad range of such cakes. When Mr Lee enquired he was told a cake could be made, but when the precise decoration required was seen the company refused the order due to the religious beliefs of the directors and their view on same-sex marriage. This refusal was held to be unlawful discrimination and the human rights of the directors did not stop that being the case.
The Court of Appeal has now upheld that outcome. The Court’s Judgment tackles interesting issues around comparison when identifying discrimination. Whilst, as the Court accepts, it was not enough for sexual orientation to be in the mix, this was still direct discrimination. Even though the bakery would have provided a different cake to Mr Lee and refused to provide the same cake to a heterosexual customer, as the refusal was about association with members of the LGBT community it amounted to direct discrimination. The Court emphasises that it was the word Gay on the cake (in the context of the message) which resulted in refusal, and this was held to involve “an exact correspondence” between those of the particular sexual orientation and those in respect of whom the message supported the right to marry.
There was in the case an obvious conflict between the bakery directors’ freedom of thought conscience and religion, and the customer’s right not to suffer sexual orientation discrimination. The directors argued that refusal to bake the cake was a manifestation of their religion and they should not be required to promote or endorse the viewpoint the cake promoted. In confirming that this balance of rights was to be found in the customer’s favour, the Court highlights that otherwise this would amount to a licence to discriminate because a company disagreed with the law. The Court confirms that producing something for someone (leaflets, posters or cakes) does not mean the producer promotes or supports the content, drawing the conclusion that “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”.
What does this mean for me?
This is a Judgment which focuses on the provision of goods and services. Organisations cannot refuse such services to any customer or service user because of a protected characteristic. This Judgment emphasises that this prohibition extends to a refusal based upon the customer’s association with those who have a protected characteristic, and in doing so removes many of the fine distinctions which might otherwise arise from a technical argument about comparative customers.
The most important aspect of this Judgment for all employers is that it re-emphasises that where your employees refuse to provide such services they will be acting unlawfully, and they cannot rely upon their own religious views (and right to protection from discrimination on those grounds) either to do so or to oppose you taking disciplinary action as a result.
This Judgment is consistent with previous decisions on the apparent conflict between sexual orientation discrimination and the right to freedom of religion. However hidden within it is the basis for the next potential area for dispute. The Court do appear to acknowledge that the balance may be different if the thing being produced ridiculed the producer’s religious beliefs or might reasonably be held to be in direct conflict with the core elements of such beliefs. So whilst it is reassuring for your ability to rely upon your obligation to provide services to all, it may also raise a new potential argument in extreme cases about what your employees are being asked to produce or promote.
Phil Allen (firstname.lastname@example.org) is a Partner in the Employment, Pensions and Immigration Team and is based in Manchester. If you have any questions, please do not hesitate to get in touch with Phil or speak to your usual Weightmans contact.