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The ‘Gay Cake case’: A full overview

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Calendar October 17, 2018

In a highly anticipated decision, the Supreme Court held that there was no direct discrimination by Ashers Bakery against Mr Lee for refusing to bake a cake with the text “Support Gay Marriage”.

The background

Mr Lee, a gay man, ordered a cake from Ashers Baking Company in 2014 with the text “Support Gay Marriage” for an event held by QueerSpace, an organisation supporting the LGBT community in Northern Ireland. The bakery refused to fulfil the order on the basis of their religious beliefs as Christians, believing that marriage should only be between a heterosexual couple.

Mr Lee brought proceedings before the Northern Ireland County Court, alleging direct discrimination on the grounds of sexual orientation and direct discrimination on the grounds of religious belief or political opinion. The County Court held that refusing to complete Mr Lee’s order was direct discrimination on both grounds and ordered a sum of £500 be paid to Mr Lee. The bakery then appealed and raised seven questions to the Northern Ireland Court of Appeal. The Court of Appeal answered two of those question and held there was direct discrimination the grounds of sexual orientation, upholding the County Court’s decision. Following this, the Attorney General stepped in and made reference to the Supreme Court for the case to be considered further.

The decision

The Supreme Court reversed the Court of Appeal’s decision and found in favour of Asher’s Bakery. The Court held unanimously that there was no direct discrimination on either ground.

The Court held that there was no direct discrimination on the grounds of sexual orientation and there was no associated or perceived discrimination based on sexual orientation. This is because Asher’s Bakery objected ‘to the message, not the messenger’ (Paragraph 22). It was held that support for same sex marriage was not indissociable from the sexual orientation of Mr. Lee. ‘Support for gay marriage is not a proxy for any particular sexual orientation’ (Paragraph 25) because people of all sexual orientations support gay marriage. Mr Lee’s sexual orientation had no impact in the decision to refuse to bake the cake because ‘anyone who wanted that message would have been treated in the same way (Paragraph 23)’.

Additionally, the Court held that there was no direct discrimination on the grounds of religious belief or political opinion. Again, the Court held anybody else would have been treated in the same way because the objection was to the message on the cake, not Mr Lee. However, it was arguable that the message on the cake was indissociable from Mr Lee’s political opinion. Therefore the Court considered the impact of the European Convention of Human Rights on the owners of the bakery. In particular the Court considered Article 9: Right to freedom of thought, conscience and religion and Article 10: Right to freedom of expression. These Convention rights include the freedom not to be obliged to hold or manifest benefits that you do not hold. The Court explained that ‘the bakery could not refuse to provide a cake… to Mr Lee because he was a gay man or because he supported marriage. But that important fact does not amount to a justification for something completely different – obliging them to supply a cake iced with a message with which they profoundly disagreed’ (Paragraph 55).

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