Discrimination Appeal fails for Christian bakers

Alex Pearce, employment law specialist explains how far the Equality Act can protect against direct discrimination.

How far does The Equality Act protect against discrimination? In the recent ‘gay cake’ dispute in Northern Ireland, an Appeal Court upheld the decision that religious belief does not override the law against discrimination.

The Northern Ireland Court of Appeal has handed down its decision deciding on the question of whether religious beliefs overrides the law against discrimination in the supply of goods and services on grounds of sexual orientation.

The appeal was issued following the Court’s decision that Ashers Bakery, owned by Mr & Mrs McArthur cancelled an order to decorate a cake with a picture of Bert & Ernie and the caption ‘Support Gay Marriage’. The McArthurs are devout Christians who believe that gay marriage is sinful. They had accepted they cancelled the order because of that belief.

The Northern Ireland Court of Appeal upheld the county court’s decision. It held that the benefit from the slogan could only accrue to gay or bisexual people, and that the McArthurs would not have objected to decorating a cake saying ‘Support Heterosexual Marriage’. The ‘reason why’ they cancelled the order was that the message related to gay marriage, and there was an exact correspondence between those of the particular sexual orientation and those whom the message supported the right to marry. This was a case of ‘associative discrimination’ with the gay and bisexual community, and amounted to direct discrimination.

The Court of Appeal held that the McArthurs’ own right to free speech (i.e. objecting to gay marriage) was not being infringed.

Whilst this was a judgment of the Northern Ireland Court of Appeal, the equivalent provisions are similar under The Equality Act 2010, which prohibits discrimination in relation to goods, services and facilities and applies to the protected characteristics of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex or sexual orientation. The prohibition on age discrimination does not apply to persons under the age of 18.

Protected characteristics

A service provider is prohibited from discriminating against a person with a protected characteristic in the following ways:

• Not providing a person requiring the service, goods or facilities with the service in question.
• Not providing the person with a service, goods or facilities of the quality which the service provider usually provides to the public.
• Not providing the person with the service, goods or facilities in the manner in which, or on the terms on which, the service provider usually provides the service to the public.
• When providing the service, goods, or facilities to a person, discriminating against or victimising them:
  • As to the terms on which the service, goods, or facilities are provided; 
  • By terminating the provision of the service, goods or facilities to them; or
  • By subjecting them to any other detriment.
• Harassing a person requiring the service, or a person to whom the service provider provides the service, goods or facilities. 
  

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Pinney Talfourd can advise on all areas of discrimination and harassment, both in the workplace and in the community. If you have been the victim of discrimination, victimisation or harassment please contact Alex Pearce in our Employment Law Team on alex.pearce@pinneytalfourd.co.uk or call 01708 229444 for advice. Alex Pearce is a member of our Dispute Resolution Department specialising in employment law. Recent successful discrimination cases include acting for a consultant paediatrician in a claim for age discrimination against an NHS Trust, and acting for a senior lawyer in a claim for disability discrimination and unfair dismissal against a law firm. Pinney Talfourd is currently offering a free employment law review service to ensure your company’s policies are legally sound and to advise on resolving any issues effectively. Take advantage of this offer and discuss your employment needs with one of our legal experts. Simply call 01277 211 755 or email charlotte.butler@pinneytalfourd.co.uk to arrange a review.This article was written by Alex Pearce our Employment Law Associate at Pinney Talfourd 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. The law may have changed since this article was published. This article is based on the law as at November 2016.