Good morning and welcome back to your weekly case law update. You may have noticed that last week’s case on sexual harassment was an ET case and thus not binding precedent in future cases. The reason this case was covered was due to a dearth of recent cases with practical implication. This shortage has continued so we bring you a case from outside the employment sphere – the gay cake case.

Whilst, not strictly employment related it does provide useful insight into sexual orientation and belief discrimination issues, namely the interpretation of direct discrimination and how the Equality Act interacts with the European Convention for Human Rights.

The questions this week are:

Is it discriminatory to refuse to make a cake supporting gay marriage for religious reasons?

Is being forced to express a political opinion, albeit by way of icing on a cake, which you do not agree with an infringement of a person’s human rights?

For those unfamiliar with the facts of this case, Mr. Lee, the Claimant, was a gay rights activist who wanted Ashers Baking Company Ltd, the Respondent, to make a cake. The name of the bakery, Asher, is derived from Genesis 49:20: “Bread from Asher shall be rich and he shall yield royal dainties.”

The Respondent advertised a build-a-cake service and did not stipulate any political or religious restrictions. The Claimant had been to the bakery before and ordered non-gay marriage related cakes. The cake order depicted Sesame Street’s Bert & Ernie with a message encouraging cake eaters to support gay marriage.

The Respondent initially took the order and payment but then two days later refused the order and refunded the payment, citing sincere Christian beliefs that homosexuality was against biblical teachings.

The Claimant believed he had been directly discriminated against due to his sexual orientation and political belief that gay people should have marriage equality. He initiated a claim under Northern Irish law in the County Court, the jurisdiction the incident occurred in.

The Respondent, in defense, argued that being forced to serve a cake containing a message they fundamentally disagreed with was in contravention of Articles 9 & 10 of the European Convention for Human Rights, the rights to freedom of thought and expression.

The Claimant’s claim was successful, the Northern Irish District Judge held that had the Claimant been a straight man asking for a cake supporting heterosexual marriage then he would have been served. They held that the Respondent did not serve the Claimant’s cake because they believed he was, or, associated with people who were, gay.

It was also held the same applied to the Claimant’s political belief in gay marriage equality. The Northern Irish District Court awarded the Claimant £500 as compensation for his treatment. The Respondent appealed and the case after an initial unsuccessful appeal was referred to the Supreme Court.

The SC held that the Claimant was not discriminated against because he was gay. The Respondent had not refused to serve the Claimant because he was gay and the Court’s comparator was wrong. The message ordered by the comparator isn’t the comparison, it’s the sexual orientation of the comparator.  The Respondent would have refused to serve a heterosexual person who ordered a cake with a pro-gay marriage message.

Likewise, the SC held they had not refused because of a perceived association to the gay community. Discrimination by association must be due to an association to a specific person such as a gay relative or parent, not an entire community. Therefore, the sexual orientation aspect of the claim did not succeed.

Turning to the religion/belief discrimination, it was held the Respondent’s own beliefs overruled the Claimant’s rights under Articles 9 & 10 of the European Convention for Human Rights. The Respondent could not be forced to express a political opinion, albeit through cake icing, that it profoundly disagreed with.

The takeaway point:

No, for the reasons laid out above it is not discriminatory to refuse to make a cake supporting gay marriage. This is because it is not an act of sexual orientation discrimination nor an act of belief discrimination.

How this applies practically to businesses could be far-reaching. Certain religions have views on the disabled, marriage, gender and other religions.

What’s clear is that refusal to provides goods or services based on discrimination for a protected characteristic will be unlawful.

Here the discrimination was not based on the protected characteristic of the customer but on the message on the cake.

The right of the business not to express an opinion, via cake icing, trumped the right of the customer to have that view aired on a cake, regardless of the opinions and beliefs of the maker.

Another point, which something all parties should bear in mind, is cost. The Claimant was refused a £36.50 cake and was awarded £500 in damages for the refusal.

Between the parties over £450,000.00 in legal costs have been racked up to challenge this, making the gay cake the United Kingdom’s most expensive ever cake!

It is a message in proportional costs, particularly when the Claimant was funded via Northern Ireland’s Equality Commission, a taxpayer-funded organisation – no cake crumbs of comfort for the hard-pressed taxpayer.