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‘Bert and Ernie’ cake gives bakers food for thought…

04 November 2016 #Employment


The Court of Appeal in Northern Ireland has upheld the decision that a bakery which refused to fulfil an order for a cake with a slogan supporting gay marriage amounted to sexual orientation discrimination.

Whilst Lee v Ashers Baking Company Limited and Others [2016] is a case about discrimination in the provision of goods and services, it still has employment implications.

Background

Ashers Bakery is owned by Mr & Mrs McArthur who are both Christians. Mr Lee placed an order with the Bakery for a cake with a picture of Sesame Street characters ‘Bert and Ernie’ and the slogan “Support Gay Marriage”.  As Mr & Mrs McArthur are against the introduction of same-sex marriage (which they believe is sinful), they cancelled the order because of their religious belief.

Mr Lee brought civil claims against the Bakery and Mr & Mrs McArthur and, last year, the County Court in Northern Ireland held that he had been discriminated against on the grounds of sexual orientation and religious or political beliefs. The decision was subsequently appealed.  

Direct discrimination?

Mr & Mrs McArthur denied that their actions were discriminatory and sought to explain that they would have refused to supply the same cake to a heterosexual person. They argued that Mr Lee had not received different treatment based on his sexuality and therefore there was no discrimination. The Court of Appeal disagreed and upheld the County Court’s earlier decision. 

The Court of Appeal found that the benefit of the slogan on the cake could only apply to gay or bisexual people and that the Bakery would not have objected to a cake carrying the message “Support Heterosexual Marriage” or “Support Marriage”.  It also held that the reason that the order was cancelled was that the Bakery would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation.  Therefore, it found it to be a case of association with the gay and bisexual community, with the protected characteristic being the sexual orientation of that community and could, therefore, amount to direct discrimination.

An Infringement of Human Rights?

Mr & Mrs McArthur argued that it is a breach of their Human Rights to require them to provide a service that is contrary to their religious beliefs and, in particular, Article 9, which deals with freedom of thought, conscience and religion.

Whilst acknowledging the importance of personal freedoms, the Court of Appeal however made it clear that the law has to strike a balance between preventing discrimination on the grounds of sexual orientation in the provision of goods, facilities and services and the freedom afforded by Article 9. It found that the correct balance had been struck in this case given the potential risk for abuse if businesses were free to choose what services to provide to the gay community on the basis of religious belief. 

Mr & Mrs McArthur also argued that requiring them to make the cake involved an element of “forced speech” and therefore engaged their rights under Article 10 (freedom of expression). However, the Court of Appeal disagreed, stating that baking the cake would not have amounted to an endorsement of gay marriage, in the same way that a baker who provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.

Effect of the decision

It is important to note that the case involved the interpretation of law which is applicable in Northern Ireland only. However, there is no reason why the outcome would be different under the Equality 2010.   

It also follows a number of high profile cases including:

  • Bull v Hall [2013] – where the Supreme Court held that Mr & Mrs Bull’s policy of only letting double bedrooms in their hotel to married heterosexual couples because of their devout Christian belief was direct discrimination on the grounds of sexual orientation;
  • McFarlane v Relate Avon Ltd [2010] – where the Employment Appeal Tribunal held that it was not discriminatory to dismiss a committed Christian for refusing to comply with his employer’s equal opportunities policy which stated that it offered all its services equally to all sections of the community; and
  • Ladele v London Borough of Islington [2009] – where the Court of Appeal held that a registrar who refused to conduct civil partnership ceremonies between same-sex couples on the grounds that to do so would violate her Christian beliefs was not discriminated against on the grounds of her religion when she was disciplined for her actions

As with the employment cases of McFarlane and Ladele, we are starting to see a trend in decisions by the court that the need to provide a non-discriminatory service can mean that staff are required to carry out duties that may conflict with their religious beliefs. 

It is important that business policies/practices do not discriminate and that staff training on equal treatment includes the treatment of service users.

For further information on or support with discrimination claims, please contact our employment law team on employment@clarkslegal.com

For useful factsheets, checklists, policies and letters on discrimination please visit employmentbuddy.com 

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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Alison Flett

Alison Flett
Associate

E: aflett@clarkslegal.com
T: 0118 960 4688
M: 0771 784 1822

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