Comment - What Has Been the Impact of the 'Gay Cake' Case?

Discrimination Against Sexual Orientation

In May 2014, Mr Lee, a homosexual man, placed an order with Ashers Bakery for a customised cake featuring the slogan 'Support Gay Marriage' to mark the end of 'Northern Ireland Anti-homophobic Week'. Mr Lee had shopped at Ashers before without any problem. 

Having initially taken his order, the owners of the bakery, Mr and Mrs McArthur, subsequently decided that they could not fulfil the order because the slogan on the cake was contrary to their sincerely held religious beliefs, in particular that:

• the only form of full sexual expression which is consistent with Biblical teaching (and therefore acceptable to God) is that between a man and a woman within marriage
• the only form of marriage consistent with Biblical teaching (and therefore acceptable to God) is that between a man and a woman

Mr Lee was given a refund and sourced a similar cake from another supplier in time for the event.  He brought a case against the bakery for discrimination on the grounds of sexual orientation or political opinion.

Mr and Mrs McArthur argued that they weren't discriminating against Mr Lee's sexuality when refusing his order - they were simply objecting to the slogan. They argued that they would have refused the order no matter who placed it. 

Both the Northern Ireland County Court and the Northern Ireland Court of Appeal found against the bakery and in favour of Mr Lee. Both courts found that the message 'Support Gay Marriage' could not be disassociated from Mr Lee's sexual orientation and that his treatment amounted to discrimination on the grounds of association. 

Mr and Mrs McArthur appealed to the Supreme Court (SC) which overturned the Court of Appeal's  decision, ruling that the McArthur's refusal to print the message was not an act of discrimination against Mr Lee. 

What Were the Supreme Court's Findings?

• The McArthurs' objection was to the contents of the message, and not to Mr Lee himself, his sexual orientation or that of any person or community with which he may have been perceived to associate with.
• Mr Lee's views of same sex marriage were not indissociable from his sexual orientation. For example, many heterosexual people were also in favour.
• The McArthurs had a genuine fear that their business would be associated with the message if they fulfilled Mr Lee's order.
• For a discrimination claim to succeed it must relate to a protected characteristic of the victim, not the discriminator. In this case it was the McArthur's religious views which were the reason for Mr Lee's treatment, not Mr Lee's own characteristics.

Following the SC's decision Mr Lee applied to have the case heard by the European Court of Human Rights. In January 2022 his application was refused on procedural grounds. 

How Has this Case Affected Subsequent Decisions?

Key Takeaways for Employers

Cases involving the provision of services to the general public will contain useful guidance and insight for employers about the balance to be struck between competing rights. However, the issues in such cases are not the same as those within the confines of the employment relationship, where behaviour is regulated by the contract of employment, workplace policies and the need for everyone to pull together towards a common goal. 

Some commentators believe that the SC got the balance wrong in Mr Lee's case and has left the law uncertain. However, there do appear to be some key learning points which apply in the sphere of employment.

The facts of every case must be looked at carefully - there is no hard and fast rule favouring one protected characteristic over another.

In the workplace people are not free to air discriminatory views about those with protected characteristics. The freedom to express religious or other beliefs is not unlimited.

In Mrs Forstater's case the judge was keen to emphasise that those with genuine religious beliefs remain subject to the prohibition on discrimination and harassment under the Equality Act.

In the Page case the Court of Appeal noted the following:

"…there are circumstances in which it is right to expect Christians (and others) who work for an institution, especially if they hold a high-profile position, to accept some limitations on how they express in public their beliefs on matters of particular sensitivity. Whether such limitations are justified in a particular case can only be judged by a careful assessment of all the circumstances of the case, so as to strike a fair balance between the rights of the individual and the legitimate interests of the institution for which they work."

The purpose of discrimination law is to protect people from less favourable treatment because of a protected characteristic they have or are associated with. Claims cannot be based on less favourable treatment because of a protected characteristic (for example the religion or ethos) of the discriminator.

For legal support with issues surrounding discrimination, please contact Michael Halsey in our Employment Law team on 020 7665 0842, or complete the form below.