The Supreme Court has been called upon recently to rule in the case of a Northern Ireland bakery, Ashers, that had been sued by gay rights activist Gareth Lee for refusing to bake a cake iced with the slogan ‘Support Gay Marriage’. The original ruling, upheld by the Court of Appeal, was that Ashers had discriminated against Mr. Lee. Many expected the Supreme Court to feel the same, but in the event the ruling was in Ashers favour. The bakery had, in the Court’s opinion, been exercising the right to freedom of expression and not discriminating.
The law guards against unjust or prejudicial distinctions on the grounds of nine protected characteristics, of which sexual orientation is one, and defines four categories of discrimination: direct discrimination, indirect discrimination, harassment and victimisation. Ashers was accused of direct discrimination against Mr. Lee because, in the opinion of the Northern Ireland County Court, they had deemed his support of gay marriage to be indissociable from his own sexuality. The Northern Ireland Court of Appeal ruled in the same way, but for a slightly different reason, finding that Mr. Lee was discriminated against because of his association with the gay community and not because he himself was gay.
The Supreme Court’s reasoning for ruling the opposite way was that the bakery had not refused to serve Mr. Lee altogether, only to bake that particular cake, and that they would similarly have refused to bake that cake for a heterosexual customer. Mr. Lee’s further claim of discrimination on the grounds of political opinion, a protected characteristic in Northern Ireland, was refused on the grounds of Articles 9 and 10 (freedom of religious belief and freedom of expression) of the Human Rights Act 1988. The Court found that whilst the bakery could not refuse to supply a cake on the grounds of Mr. Lee’s beliefs or sexuality, the owners were within their rights to refuse to provide one bearing a slogan with which they profoundly disagreed. It was their right to refuse to express a particular opinion.
The ruling has potentially far-reaching implications. In her summing up, Lady Hale stated that the case was, if it was anything at all, one of associative discrimination. Such cases have, to date, been rare, but this ruling may, ironically, have defined their place even whilst finding that there was no associative discrimination in this particular matter. It has also highlighted the subtle difference between discrimination on the grounds of a protected characteristic and discrimination because of issues surrounding that characteristic. Clearly employers and HR professionals will henceforth need to be more mindful of Articles 9 and 10 of the Human Rights Act 1998 as the basis for defending actions that might otherwise be regarded as discriminatory on the grounds that no one may be forced to say or do something derogatory.
But the picture is further complicated by the Supreme Court’s ruling having come on top of two apparently contradictory rulings. Any employer whose employee has been accused of discrimination will, therefore, be well advised to treat the matter with the utmost seriousness from the outset, interview all parties, request written statements, attempt to identify witnesses and treat it as a potential disciplinary matter. This already somewhat confused and confusing legal area will be navigated most easily and effectively by those who are as meticulous and methodical as possible.
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