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By Manisha Chauhan

Oct 10th, 2018

Supreme Court Hands Down Judgement in Ashers “Gay Cake” Case

You may recall in October 2016, the Northern Ireland Court of Appeal, in the case of Lee v Ashers Baking Company Limited 2016, confirmed that the refusal by a bakery to bake a cake bearing a message in support of gay marriage was in fact direct discrimination.

The Claimant, Mr Lee, placed an order with the bakery for a cake featuring the characters Bert and Ernie from Sesame Street, with the message “Support Gay Marriage.” The cake was for an event to mark International Day against Homophobia. The owners of the bakery, both devout Christians, disagreed with the introduction of same-sex marriages in Northern Ireland and therefore cancelled the order. Mr Lee was given a full refund.

Mr Lee successfully brought a claim for direct discrimination and the decision was upheld by the Court of Appeal. The Court held Mr Lee had suffered direct discrimination by association with the gay community and the protected characteristic was the sexual orientation of that community. The Court further held that the real reason for the cancelled order was due to the use of the word “gay” on the slogan. The owners would not have objected to a cake which had said “support marriage.”

The owners of the bakery argued that their rights under Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) had been infringed and that had they agreed to bake the cake, they would have been endorsing gay marriage. The court rejected their argument. They appeal to the Supreme Court.

The case was further appealed to the Supreme Court who have today handed down their decision. The Supreme Court have held a refusal to bake a cake containing a message supportive of gay marriage does not amount to direct discrimination.

The Supreme Court considered the argument of direct discrimination on the grounds of both sexual orientation and political belief. They held the refusal to bake the cake was not due to Mr Lee’s sexual orientation and was therefore not direct discrimination.

The Court of Appeal had agreed there had been direct discrimination by association with the gay community, however this argument was rejected by the Supreme Court. They argued that for associate discrimination to succeed, there needed to an actual association with a group of persons and discrimination to occur because of that association. In this case, there was only an assumption that Mr Lee was likely to associate with the gay community.

In respect of the arguments relating to the bakers political belief, more specifically Articles 9 and 10, those rights also include an entitlement not to be forced to express a political opinion which you do not believe.

This case serves an important reminder to all organisations that the laws on equality not only apply in the workplace but also in the delivery of goods, services or facilities.

Top Tips for Employers:

  • Business owners should be wary of their own political or religious beliefs when running a business if those beliefs could disadvantage any protected group of customers. 
  • Train staff – ensure staff are regularly trained on the equal treatment of their colleagues and customers. Ensure your equality and diversity policies are updated and staff are aware of them. Remember, as an employer, you can be held vicariously liable for the actions of your staff, unless clear steps are taken in advance to prevent them.
  • Deal with any complaints – rather than let a dispute get press coverage which quite possibly could affect your reputation, try to reach a compromise both parties are happy with. Sometimes a simple apology can be sufficient.
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