You probably saw, read or heard at least some of the media coverage of the recent Supreme Court decision in the case of Lee v Ashers Bakery Limited. Commonly known as the ‘gay cake case’, it concerned the question of whether it constituted unlawful discrimination for a bakery to refuse to decorate a cake with a message that supported gay marriage.
The facts of the case were very simple. Gareth Lee ordered a cake for a friend. The cake was meant to include the slogan: "Support Gay Marriage" and depict the Sesame Street characters, Bert and Ernie. Mr Lee’s order was initially accepted by Ashers Bakery, only to be rejected a few days later. The reason for refusing the order was that the message to be included on the cake was apparently inconsistent with the deeply held religious beliefs of the directors and owners of Ashers bakery; as practising Christians, they believe that marriage can only take place between a man and a woman.
When this case went before the Supreme Court, five very senior judges were asked to consider whether the actions of the bakery constituted unlawful sexual orientation discrimination.
The Supreme Court unanimously decided that Ashers Bakery was not guilty of unlawful discrimination against Mr Lee. In particular, the Supreme Court concluded that the bakery’s decision to refuse Mr Lee’s order was not a result of Mr Lee’s sexuality or that of anyone associated with him. Instead, the bakery objected to the message to be iced onto the cake. The Supreme Court concluded that there was no specific connection between a given person’s sexuality and the refusal to provide the cake; indeed, the bakery would have declined such an order from any person, regardless of their sexuality.
We have to admit that we find this decision a little surprising. It has been common ground for some time that claims for discrimination can be built on the ‘protected characteristic’ (i.e. sex, race, sexual orientation etc.) of someone other than the claimant. You don’t have to be homosexual yourself to claim sexual orientation discrimination. Instead, you can rely on an ‘association’ with some other person who is homosexual. Indeed, some cases have seemingly gone further still. In the 2009 case of English v Thomas Sanderson Blinds Ltd, Mr English was subjected to homophobic taunts at work, even though it was well known to all concerned that he was not gay. The Court of Appeal concluded that his sexual orientation discrimination claim should succeed. After all, it would be rather odd if an individual could be subjected to this sort of abuse, with a gay man being protected, whilst a heterosexual man is not.
The ‘gay cake case’ seems to suggest that the English case may have been wrongly decided; a stronger association between the claimant and a particular person with the relevant ‘protected characteristic’ seems to be necessary in order to substantiate a claim. Simply establishing that an act of less favourable treatment has ‘something to do with’ sexual orientation will not be enough.
If you are interested in hearing more about this case, come along to our upcoming employment law update seminar on 28 November 2018. Simply email your details to firstname.lastname@example.org