£36.50 Cake tests the Laws on Discrimination

In 2014, a gay man walked into a bakery in Northern Ireland which provided a customised cake-making service. This customer wanted the bakery to make a cake and customise it with a picture of Bert and Ernie and the message “Support Gay Marriage”. The directors of the bakery were Christians who opposed same-sex marriage and so would not fulfil the order as they stated the bakery was a “Christian business”. The customer was given a refund, and secured a similar cake from another outlet. The customer subsequently issued proceedings claiming damages for – at its most basic level – discrimination in the provision of goods, facilities and services, relying on, amongst other legislation, the provisions of Northern Ireland’s Equality Act. ​

The District Judge who first heard the claim found that bakery directly discriminated against the customer on the grounds of sexual orientation and on the grounds of religious and political belief.

The bakery went on to appeal the decision.

In 2016, the Northern Ireland Court of Appeal agreed with the District Judge’s decision, adding that despite the bakery director’s rights to hold a religious belief and to freedom of expression, to allow this reasoning to be held was to permit direct discrimination.

On 10 October 2018 however the Supreme Court, the UK’s highest court, overturned the decisions of the previous court by a unanimous agreement that it was not the customer the bakery was refusing business from, but the content of his business. Any individual regardless of sexual orientation who ordered a cake to be customised in any way that went against the bakery director’s religious beliefs would have been refused. The Supreme Court found that there was no form of discrimination by the bakery.

In the UK, the Equality Act 2010 prohibits various forms of discrimination in respect of certain protected characteristics.

A person or ‘service-provider’ who provides a service to the public, for payment or not, must not discriminate against a person requiring their service by, amongst other things; not providing the person with the service or not providing the person with the service, goods or facilities in the manner in which the service provider usually provides the service to the general public.

Protected characteristics include:

• Age
• Disability
• Gender reassignment
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

Direct discrimination is where a service provider treats a service user less favorably than they treat or would treat others, because of a protected characteristic. In the case of the bakery, the District Judge who first heard the claim understood that the bakery directly discriminated against the customer on the grounds of sexual orientation, by refusing to make his cake.

Indirect discrimination occurs where a service provider applies a provision, criterion or practice (PCP) that places service users sharing a protected characteristic at a particular disadvantage, and cannot be justified. An example from the EHRC Services Code, refers to whena chain of shops is worried about security and instructs its staff to require people coming into the shop to remove any headgear. A security guard explains to a Rastafarian that it is the policy of the shop that he must remove his hat. Unless the shop can justify this policy it will be indirect discrimination because of religion.

The bakery case has not substantially affected the discrimination laws in place. The right not to be discriminated against on the grounds of sexual orientation remains.

MORE INFORMATION 

If you believe that you have been discriminated against, either by a provider of services, goods or facilities or even by your employer, you may be entitled to bring a claim before the courts. Should you require legal advice, please contact our Employment Law Department who can provide specialist guidance and advice – call us or email by using the form to the right. This article was written by Emel Hamit, Trainee Solicitor at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of October 2018.​