The recent case of Lee v Ashers Baking Company Limited and Others has hit the headlines in looking at what amounts to direct discrimination in terms of the provision of services to individuals.  What effect does this case have on discrimination in the employment field?

The case involved a family owned bakery, whose owners strict religious beliefs include opposition to gay marriage. They were asked to provide a customised cake with a photograph and wording stating “Support Gay Marriage”.  They cancelled the order due to their religious belief and provided a refund to the customer.

The individual brought a discrimination claim on the basis of direct discrimination on grounds of sexual orientation and political belief. He was successful at first instance and at the Court of Appeal. However, the Supreme Court in the UK has now overruled those decisions and held that it is not directly discriminatory for an organisation to refuse to provide a service supportive of a belief contrary to their own beliefs.

The Supreme Court held that the baker’s refusal was not because of the individual’s sexual orientation – that was irrelevant to their decision. The reason for the less favourable treatment was the message that the individual wanted to have iced on the cake.  The individual also sought to claim that the refusal was a case of associative discrimination.  Associative discrimination arises where there is discrimination against the individual because of their association with a certain group or community and the protected personal characteristic within that community.  Again, the argument was that the discrimination was not with a particular person or discrimination due to that association it was related to the message. As such, the individual did not succeed in his claim for discrimination on the basis of sexual orientation.

The court also considered discrimination in relation to political belief and in particular considered Articles 9 (freedom of religion and belief) and 10 (freedom of expression) of the European Convention on Human Rights. The Court agreed that obliging a person to manifest a belief which they do not hold is a limitation on their article 9 rights.  The right to freedom of expression in Article 10 includes a right not to express an opinion.  As such, the bakers could not be obliged to supply a cake with a message with which they profoundly disagreed.

The court did make it clear that there is a clear distinction between an objection to a message and an objection to the customer who wants to support that message. The court made it clear in their judgement that they did not seek to minimise or disparage the very real problem of discrimination against gay people.  However, this shows the difficulty in balancing the different beliefs of parties in transactions.

How does this affect employment law?

Where a service is being provided it may be possible to draw a distinction between the individual and the service being provided. However what happens if an employee refuses to provide services on the basis of their political beliefs or religious beliefs?  In Ladele v London Borough of Islington [2010] a Christian registrar refused to carry out civil partnership ceremonies on the basis that same sex relationships were contrary to her religious beliefs.  The council disciplined the registrar and she failed in her claim for direct discrimination on the basis that her comparator, would have been treated the same way.  The registrar also brought a claim to the European Court of Human Rights based on Article 9 and Article 14 (that the rights and freedom set out in the convention shall be secured without discrimination).  However, the majority of the court held that the Council’s requirement for all registrars to conduct civil partnerships was legitimate and proportionate and the courts allow a wide margin of appreciation when balancing competing convention rights.

The recent bakery case shows that balancing opposing rights continues to be an issue, not only in the provision of services, but also in employment.

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