Employment Law Update – “Gay Cake” Case

Refusal to bake cake supporting gay marriage is not discriminatory

The Supreme Court has reversed the previous decisions of the Northern Irish courts in the lengthy case of Lee v Ashers Baking Company Limited and others.

Background

Northern Ireland is the only part of the UK or Ireland where same-sex marriage is outlawed.

On 9 May 2014, a member of a LGBT advocacy group placed an order of £36.50 for a cake at a bakery, requesting the phrase “support gay marriage” to be decorated on it. Soon after, the bakery informed the customer that the order could not be fulfilled on the basis of the owners’ religious beliefs.

In May 2015, the Belfast County Court for upheld the Claimant’s claim for direct discrimination due to sexual orientation and political beliefs under Northern Irish legislation. In October 2016, the Northern Irish Court of Appeal agreed with the judgment at first instance.

The Respondents appealed to the Supreme Court.

The Law

The case centred on the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, which states:

A person discriminates against another person on grounds of sexual orientation if they treats the other person less favourably than he treats or would treat other persons.

A similar provision is contained in s13 Equality Act 2010.  Both sexual orientation and religion and beliefs are protected characteristics under s4 of the Act.

Article 10 (Freedom of Expression) of the European Convention of Human Rights states: “Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions”.

Finding

The Supreme Court ruled that the Respondent did not discriminate against the Claimant because of his sexual orientation or his support of gay marriage but rather due to the specific phrase he wished to have them decorate on the cake.

The judgment read:

It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics, but that is not what happened in this case…

… The bakers could not refuse to supply their goods to [the Claimant] because he was a gay man or supported gay marriage, but that is quite different from obliging them to supply a cake iced with a message with which they profoundly disagreed”.

The Court also held that freedom of expression includes the right “not to express an opinion which one does not hold”.

Practical effect of the Finding

The decision has been criticised for lacking clarity. It remains unanswered as to whether a baker could lawfully refuse to bake a wedding cake for a same-sex wedding that did not have any identifying phrases decorated on it, and where the only signifier was the customer themselves. Based on the Supreme Court’s judgment, this would appear to be in breach of the Equality Act

However, the decision has also been applauded as being one which supports the freedom of expression of the baker. It has been conversely argued by campaigners that based on the decision in this case, a baker who supports LGBT rights, cannot be forced to decorate a cake with a homophobic message.

If you or your business are affected by the judgment and require employment advice or for information on the complete range of legal services offered by Hatchers, please call 01743 248545 or visit our homepage.