In the June-July 2015 issue of the HaytonHeyes newsletter we reported on this Northern Ireland case that had been making the headlines. A Christian-run bakery refused a customer’s request to have a cake made and decorated with a slogan supporting gay marriage.
The baker was found guilty of discriminating against a gay customer and just this week the Court of Appeal in Northern Ireland has upheld the ruling of unlawful direct discrimination on the grounds of sexual orientation.
Mr Lee had made enquiries about having a cake made, but it was only at the time the decoration was seen that the company refused to take the order based on the religious beliefs of the directors and their views on same-sex marriage. This was held to be unlawful discrimination and the human rights of the directors did not stop that being the case.
In the Court of Appeals Judgment, the Bakery claimed it would have supplied a different cake to Mr Lee and refused to provide the same cake to a heterosexual customer, but as the refusal was about association with members of the LGBT community it amounted to direct discrimination. The Court emphasises that it was the word Gay on the cake (in the context of the message) which resulted in the refusal, and this was held to involve “an exact correspondence” between those of the particular sexual orientation and those in respect of whom the message supported the right to marry.
There is a clear conflict between the Bakery directors’ freedom of thought conscience and religion, and the customer’s right not to suffer sexual orientation discrimination. The directors argued that refusal was due to their religion and they should not be required to promote or endorse the viewpoint the cake promoted. In this case the balance of rights was to be found in the customer’s favour, the Court commented that otherwise this would amount to a licence to discriminate because a company disagreed with the law. The Court said that producing something for someone (leaflets, posters or cakes) does not mean the producer promotes or supports the content and said “the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either”.
Companies cannot refuse such services to any customer or service user because of a protected characteristic. This Judgment emphasises that this extends to a refusal based upon the customer’s association with those who have a protected characteristic, and in doing so removes many of the fine distinctions which might otherwise arise from a technical argument about comparative customers.
Kim says: “Employers offering a service cannot issue directives like this to their staff as it conflicts with employment legislation. It’s appreciated that people have their own views and opinions but these must not affect the way they carry out their role”.
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