The employers’ guide to discrimination following the ‘gay cake’ ruling
The lower courts had previously found that the refusal by Ashers to bake a cake with a slogan promoting same-sex marriage was discriminatory, in rulings which chimed with previous case law. However, the Supreme Court deemed that this was not the case, and the bakery was within its rights to refuse the order as an exercise of freedom of expression. So, what does this actually mean for future cases, and what should employers learn from the ruling?
What is discrimination?
There are nine protected characteristics under the law of England and Wales. These are age, sex, race, disability, religion or belief, sexual orientation, gender reassignment, pregnancy or maternity and marriage or civil partnership. Discrimination is classified as being the unjust or prejudicial treatment of any individual or group because of these characteristics.
There are four main forms of discrimination recognised within the law. These are:
- Direct discrimination, which is less favourable treatment because of a protected characteristic
- Indirect discrimination, which is the application of rules or arrangements which put those with a protected characteristic at a disadvantage
- Harassment, which is unwanted conduct on the basis of a protected characteristic that creates a hostile or degrading environment
- Victimisation, which is the unfair treatment of an individual because they’ve complained, or may complain, of discrimination.
The case: What were the initial rulings?
In 2014, Ashers Baking Company Ltd was accused of directly discriminating against Mr Lee because of his sexual orientation, with initial rulings by the County Court in Northern Ireland finding in favour of the claim. They determined that support for gay marriage was indissociable with sexual orientation, so Ashers’ refusal to supply a cake bearing the slogan “Support Gay Marriage” was unlawful.
At the Northern Ireland Court of Appeal, this point was refuted and dismissed. However, the Court still upheld the direct discrimination ruling, stating that Mr Lee had been discriminated against on an associative basis. They stated that the bakery refused to supply the cake not because Mr Lee is gay, but because of his association with the gay community.
The case: What did the Supreme Court rule?
Most recently, the case was brought to the Supreme Court in Northern Ireland, where both of the previous rulings were dismissed. They decreed that the bakery refused to supply the cake because it was to display a message that they objected to, not because of Mr Lee’s sexual orientation. The Court accepted the argument that the bakery still would not have served the cake reading “Support Gay Marriage” to a heterosexual individual and yet would have served Mr Lee or any homosexual individual a different cake; therefore, there was no discrimination on those grounds.
However, the case didn’t end there. In Northern Ireland political opinion is a protected characteristic, and Mr Lee claimed that he had also been discriminated on those grounds. Lady Hale did agree that there was close association between the message “Support Gay Marriage” and the political opinion of Mr Lee. However, she still found that there was no discrimination, having considered articles 9 and 10 of the European Convention on Human Rights, incorporated by the Human Rights Act 1998.
Article 9 refers to freedom of religious beliefs and article 10 refers to freedom of expression, both of which mean that the bakery didn’t have to provide anyone with a product bearing a message they profoundly disagreed with. While they couldn’t refuse to supply Mr Lee with a cake because of his beliefs or sexual orientation, they did retain the right to not express a particular opinion.
This ruling has somewhat complicated the already complex case law surrounding discrimination cases. A discourse will need to be opened to determine clearly the distinction between treating someone in a certain way in relation to issues surrounding a protected characteristic, and treating someone in a certain way because of a protected characteristic. In other words, objecting to a message is freedom of expression, objecting to the messenger is discrimination. The distinction between these is subtle enough to require further clarification.
Following this, the ruling could have a whole host of further implications. For example, there may well be more associative discrimination cases brought in the near future. Associative discrimination cases are fairly rare at present, but that Lady Hale’s reference to them would seem to have brought them into the spotlight. She stated that the Ashers case was either one of associative discrimination or nothing, so many claimants may see this as their most secure legal avenue.
Article 9 and article 10 rights are also likely to be cited more often, with more people using them to justify actions that could otherwise be deemed to be discriminatory. This defence could be a potential minefield, however, and employers should be wary of it. The Ashers Bakery case saw a party use the Human Rights Act as a shield so they wouldn’t have to do something against their will, as opposed to using it as an excuse for actively saying or doing something discriminatory. The Act does not give people the entitlement to say and do whatever they want no matter how harmful.
How employers should deal with customer accusations of discrimination
Employers need to be prepared to investigate any claims of discrimination promptly and as thoroughly as possible. If a member of the public accuses a staff member of discrimination, the employer should speak to all parties and receive full statements from each of them; this includes the employee against whom the allegation has been made, the complainant and any potential witnesses. Any CCTV footage should also be reviewed if it could assist with the enquiry.
If the findings of the investigation do suggest that discrimination may have occurred, then any employer should treat it as a potential disciplinary issue for the staff member. They should also deal with the member of the public in a respectful and swift manner. This is the best possible course of action to prevent try any claims from being brought.
The Supreme Court’s ruling may have made the already complicated case law surrounding discrimination even more uncertain, but there are still some sure-fire procedures employers can go through to help prevent discrimination. By practising due diligence and taking appropriate and swift measures where warranted, employers and HR professionals can put themselves in the best position going forward.