06 December 2013 #Employment
When manifestation of a protected characteristic by one individual interferes with another individual’s rights through a separate protected characteristic, this will be unlawful discrimination confirmed the Supreme Court recently in Bull v Hall.
In this case, the particular rights in question involved the devout Christian beliefs of hotel owners and the rights of a gay couple in a civil partnership. The hotel owners’ beliefs in the sanctity of marriage being between a man and a woman, meant they did not recognise the status conferred by civil partnerships, and operated a policy of only allowing rooms with double beds to guests who were married heterosexual couples.
This was indirect discrimination, which the Supreme Court unanimously agreed could not be justified on the basis of the conflict caused with the hotel owners` religious beliefs. The right of the hotel owners to manifest their beliefs, enshrined in the European Convention on Human Rights is limited in domestic law, as a proportionate means of achieving the legitimate aim of protecting the rights and freedoms of others.
A majority of the Supreme Court also decided that the discrimination was direct and so not capable of any justification defence. The hotel owner’s policy in applying a criterion of heterosexual marriage, failed to recognise the legal equivalence of civil partnerships provided in discrimination law and meant that the reason for less favourable treatment was sexual orientation. Lady Hale giving the leading majority speech, compared the situation to the example of a policy limiting double bedded rooms to married couples over the age of 30. While this would mean denying double beds to all unmarried couples regardless of age (and so involve indirect age discrimination) Lady Hale also said it would involve direct age discrimination against married couples under the age of 30, in using a criterion based upon the protected characteristic of age.
This case demonstrates once again that while the holding and manifestation of particular beliefs is a lawful human right, trouble will ensue when that manifestation involves causing disadvantage to others, whose rights also require protection.
The case was decided upon the law prior to the introduction of the Equality Act 2010, but Lady Hale noted that the position would likely be the same under the current provisions.
Ann Marie Burke
Seconded Paralegal from Carillion Advice Services