When employees’ religious beliefs clash with workplace practice and customer rights, many problems can arise. This was highlighted in the recent high profile and widely reported case of Lee v Ashers Baking Co Ltd and others.
Lee v Ashers Baking Co Ltd and others
Legal Background
Under the Equality Act 2010 (EqA), a person is protected from being discriminated against on the grounds of their sexual orientation. This includes protection from being treated less favourably because of sexual orientation, experiencing a disadvantage because of sexual orientation relating to a discriminatory provision, criterion or practice, and harassment and victimisation on the grounds of sexual orientation.
Case Facts
Mr Lee, a member of a LGBT advocacy group, ordered a cake from Ashers Bakery decorated with a picture of Bert and Ernie from Sesame Street and the slogan ‘Support Gay Marriage’ for a private function marking International Day Against Homophobia.
Mr Lee paid in full but was informed two days later that his order could not be processed on the grounds that the owners of the bakery are Christians who believe that gay marriage is sinful.
Mr Lee accused the bakery of discriminating against him on the grounds of his sexual orientation. His argument centered on the belief that when a person decides to enter into the public domain to trade as a commercial enterprise, they accept that they are ruled by the laws of the land.
Decision
The Northern Ireland County Court held that the refusal to bake a cake for a homosexual customer amounted to direct discrimination on the grounds of his sexual orientation. The bakery was ordered to pay damages to the customer.
The bakery appealed against the finding, arguing that it took issue with the message on the cake and not the customer and it feels that it should retain the freedom to decline business that would force it to promote a cause with which it disagrees.
The Northern Ireland Court of Appeal upheld the County Court’s decision, ruling that the benefit from the slogan could only accrue to gay or bisexual people, and that the bakery would not have objected to decorating a cake saying ‘Support Heterosexual Marriage’. The reason why the order was cancelled was that the message related to gay marriage, and there was an exact correspondence between those of that sexual orientation and those whom the message supported the right to marry.
The Court of Appeal went further, holding that although the owners of the bakery own the right to free speech, this was not being infringed in this case. In icing a cake, they were not expressing personal support for the slogan, just as icing witches on a Halloween cake does not indicate that they support witchcraft.
Comment
Although this was a Northern Irish case, Lee v Ashers Baking Co Ltd referred to the UK Supreme Court decision in Bull v Hall and shows the the potential tension between the protected rights and anti-discrimination provisions in England and Wales under the Equality Act 2010 and the right to manifest religious beliefs and freedom of expression under the European Convention on Human Rights.
The decision makes a clear distinction between the right to hold a belief (which is absolute) and the right to manifest a belief through one’s actions. The Court of Appeal in this case commented that the owners of the bakery were entitled to refuse to decorate cakes involving any religious or political message, but they were not entitled to refuse to decorate cakes which carried a particular religious or political message solely because it conflicted with their own views.
A number of the leading cases in this controversial area are employment-related. The trend has been for Courts and Tribunals to find that employers are entitled to take steps to ensure that services are delivered on an equal opportunities basis, even if these steps conflict with an employee’s religious beliefs.
If you would like advice regarding these issues, please contact our specialist employment law team on 0800 024 1976 or via our online form.