Employment Law Speed Read – 15/10/18
15th October, 2018
In Lee v Ashers Baking Company Ltd and Others, the Supreme Court held that a baking company did not directly discriminate against a customer, by refusing to bake a cake that displayed a message which was supportive of gay marriage.
The McArthur family have owned the Ashers Baking Company Ltd (Ashers) since 1992. Ashers operates in Northern Ireland and offers its services online throughout the United Kingdom and the Republic of Ireland. The McArthur family are of Christian faith and hold the belief that the marriage of a man and woman is the only form of marriage consistent with Biblical teaching.
Mr Lee volunteers for the LGBT organisation QueerSpace. In May 2014, Mr Lee used the “Build-a-Cake” service offered by Ashers, to order a personalised cake for a private event hosted by QueerSpace. The cake ordered by Mr Lee displayed the message “Support Gay Marriage”. Although Mr Lee’s order was initially accepted by Ashers, Mr Lee was later informed that his order would not be fulfilled because Ashers was a Christian business and was therefore unable to print the requested message.
Mr Lee brought a claim against Ashers for direct and indirect discrimination on the grounds of sexual orientation, religious belief and political opinion. The County Court found in favour of Mr Lee and held that by failing to complete Mr Lee’s order, Ashers had committed an act of unlawful discrimination on all three grounds. Mr Lee was awarded compensation. Ashers appealed to the Court of Appeal (“CA”).
Court of Appeal
The CA dismissed Ashers’ appeal and held that Mr Lee had been directly discriminated against on the grounds of sexual orientation. The CA found that the failure to complete Mr Lee’s order amounted to associative discrimination. Ashers appealed to the Supreme Court (“SC”).
The SC overruled the previous decisions of the Northern Irish courts and allowed Ashers’ appeal. The SC unanimously held that Ashers had not discriminated against Mr Lee by refusing to complete his order.
The SC distinguished between the act of refusing to provide a customer with a cake due to a protected characteristic of that individual, and refusing to provide a customer with a cake because of the message it displayed. The SC held that only the former constitutes unlawful discrimination. Lady Hale, giving the lead judgment, held that “the objection was to the message not the messenger”. Mr Lee’s order was not refused because of his sexual orientation, or because of anyone with whom he was associated; Ashers refused Mr Lee’s order because of his requested message. Ashers would have also refused to provide the cake to a heterosexual customer; as such, Mr Lee’s sexual orientation was irrelevant.
Further, the SC attached significance to the rights of the McArthur family which are enshrined in the European Convention of Human Rights. Namely, the right to freedom of thought, conscience and religion and the right not to be obliged to manifest beliefs that one does not hold.
Within the judgment, the SC acknowledged the discrimination faced by gay communities and the humiliating impacts which stem from an individual being denied a service because of a protected characteristic. However, Lady Hale stated that “this is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.”
In this landmark decision, the SC highlights the distinction between the objection to displaying a message on a product and the objection to the customer itself, with only the latter amounting to unlawful discrimination.
This judgment is likely to receive criticism and raise uncertainty with regards to the implications of the case. It remains to be seen whether or not service providers will be able to refuse services on the basis of their beliefs.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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