HR Resources

When two protected characteristics collide

I have included details on a recent case courtesy of Jayne Harrison and Emma Tegerdine at Cleggs Solicitors, Nottingham.  Thought it was a really good summary and I would share.

The Northern Ireland Court of Appeal has handed down its decision in Lee v Ashers Baking Company (the so-called 'gay cake' case), deciding the question of whether religious beliefs trump the law against discrimination in the supply of goods and services on grounds of sexual orientation.

Although not an employment law case, it deals with important questions concerning circumstances where there is an apparent conflict between two protected characteristics; in this case, sexual orientation and religious belief.
Ashers Bakery, owned by Mr & Mrs McArthur, cancelled an order taken by their shop assistant 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, and they accepted they cancelled the order because of that belief.

The Northern Ireland Court of Appeal upheld the county court’s decision that Ashers Bakery had directly discriminated against Lee by association on the ground of sexual orientation. The benefit from the message on the cake could only accrue to gay or bisexual people. Mr and Mrs McArthur would not have objected to a cake carrying the message ‘Support Heterosexual Marriage’ or indeed ‘Support Marriage’. It was the use of the word ‘gay’ in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that they would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation.

This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly it was direct discrimination. The Court of Appeal went on to hold that the McArthurs' own right to free speech (ie objecting to gay marriage) was not being infringed. Nobody could reasonably conclude that by icing a cake, they were expressing personal support for the slogan - just as icing witches on a Halloween cake does not indicate they support witchcraft. The McArthurs were entitled to refuse to decorate cakes involving any religious or political message, but they were not allowed to refuse to decorate cakes which carried a particular religious or political message just because it conflicted with their own views. If businesses were free to choose what services to provide to the gay community on the basis of religious belief, the potential for arbitrary abuse would be substantial.



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