Why you can’t always have your cake and eat it

17 October 2018

The Supreme Court has given its long awaited decision in the so-called “gay cake” case, ruling unanimously that Ashers Bakery did not discriminate against gay rights activist Gareth Lee, who had been successful in the County Court and then at the Northern Ireland Court of Appeal.

Why you can’t always have your cake and eat it

By way of background, in 2014, Ashers had declined to process a cake order featuring Sesame Street characters Bert and Ernie and iced with the slogan “Support Gay Marriage”. The family-owned firm acknowledged that the order, which had initially been accepted, had been cancelled due to their belief that same-sex marriage is contrary to Christian teaching. Mr Lee, a member of the LGBT advocacy group Queer Space, had ordered the cake for a private function for International Day Against Homophobia in May 2014.

The Decision

On 10th October, the Supreme Court decided that Ashers’ refusal to bake the cake was not because of Mr Lee's sexual orientation; that was irrelevant to their decision and, therefore, there was no direct discrimination. The Supreme Court was also not satisfied that this was associative direct discrimination, i.e. because Mr Lee was likely to associate with the gay community. The fact that the message had something to do with the sexual orientation of some people was not sufficient, they said. 

With regard to the political belief aspect of this case, the Supreme Court relied heavily on the rights relating to freedom of religion and expression under Articles 9 and 10 of the European Convention on Human Rights. Those rights include an entitlement not to be forced to express a political opinion with which you do not agree. Infringement of those rights, the Supreme Court decided, could not be justified by an obligation to supply a cake bearing a statement with which the bakers profoundly disagreed.

 

What does the decision mean in real terms for Northern Ireland businesses?

“There is a concern that this judgment may raise uncertainty about the application of equality law…both about what businesses can do and what customers may expect.” That was the reaction of Dr Michael Wardlow (Equality Commission for Northern Ireland) to the Supreme Court’s decision last week.

One thing is for certain: the picture will seem a blurred and confused one for businesses when it comes to providing goods or services to the public, whether that business prints flyers, hires venues or, indeed, bakes cakes!

Although the intricacies of the Ashers case set it apart from the usual discrimination cases that reach our courts, businesses not hoping for a day out before a Judge should be mindful of (and make sure their own public-facing employees recognise) these basic pointers:

  • Take measures so as to avoid treating any customer/service-user differently or worse than others because of who they are, because of who you think they are or because of someone they’re connected to, i.e. because of a protected characteristic that they, or someone they’re connected to possesses (for example, their religion, disability, race, gender, political opinion, age or sexual orientation).
  • Don’t apply a policy, rule or way of doing things that puts a person who possesses a particular protected characteristic at a disadvantage compared with others.
  • Don’t forget to consider making reasonable adjustments for disabled customers/service-users.

John Kelly is a solicitor specialising in discrimination/employment law at Worthingtons. For further information on this topic or for assistance with any employment law query, John can be contacted by telephone on 028 90434015 or by email at johnk@worthigntonslaw.co.uk.

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