Case law: Court confirms business refusing an order because of a customer's orientation is discriminatory, even though it was because of religious beliefs
A northern Irish bakery describing itself as a 'Christian business' discriminated against a customer when it refused his order to decorate a cake with images and slogans that were not illegal, but were against its directors' religious beliefs, the Court of Appeal in Northern Ireland has confirmed.
This update was published in Legal Alert - December 2016
Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.
Please note: A newer article on this case was published in the November 2018 edition of Legal Alert following subsequent developments in the legal process.
A bakery in Northern Ireland cancelled a customer's order for a cake decorated with an image and wording which supported gay marriage, on the basis that it was against their genuine and deeply held religious beliefs. The customer was a member of a voluntary group set up to increase visibility of the lesbian, gay and bisexual and transgendered community in a positive manner. The cake decoration was to include the name of the organisation, and the words 'Support Gay Marriage'. The cake was for an event to celebrate progress in a highly public political campaign to introduce same-sex marriage in Northern Ireland. The customer claimed direct discrimination on grounds of his sexual orientation.
There is direct discrimination if someone is treated less favourably than another person because of a 'protected characteristic', such as their sexual orientation or beliefs. (Other protected characteristics are gender, age, being or becoming a transsexual person, race (including colour, nationality, or national or ethnic origin), disability, religion or belief (or lack of it), marital status (including civil partnership), pregnancy or childbirth.)
The bakery said it was not discriminating against the customer on grounds of his sexual orientation - it did not cancel the order because he was gay, but because of the message on the cake, which was contrary to its owners' religious beliefs. It would also have cancelled an identical order from a straight customer. The bakery said it did not know the customer was gay, or what his political beliefs were, at the time.
The Court of Appeal in Northern Ireland has ruled that the benefit from the images and slogans could only accrue to gay or bisexual people – for example, the bakery would not have refused an order for a cake saying 'Support Heterosexual Marriage', which benefited straight people.
It found that the 'reason why' the bakery refused to fulfil the order was because the slogan on the cake related to gay marriage. The Court found that there was an exact correspondence between people who were gay (or bisexual) and people who supported gay marriage.
Accordingly this was a case of 'associative discrimination' with the gay and bisexual community, and amounted to direct discrimination.
The Court did not accept that providing the cake would have been supporting or promoting the campaign for same sex marriage in Northern Ireland. It found that the bakery disagreed with the religious belief and political opinion held by the customer with regard to a change in the law to permit gay marriage and, accordingly, by their refusal to provide the services sought, treated the customer less favourably contrary to the law.
The bakery had therefore refused to provide goods and services to an individual because of his sexual orientation and political opinion, and was direct discrimination.
- Businesses should think carefully before refusing customer orders if it could be argued the refusal is because of, or associated with, a protected characteristic of the customer, as the refusal may amount to discrimination
Case ref: Lee v Ashers Baking and Ors No.  MOR10086
Please note: An article published in the June 2015 edition of Legal Alert covered this case at an earlier stage in the legal process.
Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.