The Supreme Court has now ruled that it was not discrimination “on grounds of” sexual orientation for a Christian-owned bakery in Belfast to refuse to supply a cake iced with a message in support of gay marriage. As the Supreme Court put it: “The objection was to the message, not the messenger”. In reaching this decision, it overturned the ruling of the Northern Ireland Court of Appeal, which in turn had upheld the decision of the district judge at first instance.
This facts of this unique case may seem a long way away from the kind of equality issues the HR departments across Britain regularly grapple with. However, whatever view one takes of the final outcome (which has certainly been controversial) there are some important general lessons to derive from this litigation.
Equality is not just an employment-related issue: Broadly speaking there is one definition of discrimination which applies across all equality strands, and in all the main areas of the UK’s economic life including employment, education and the supply of goods and services. That means that leading cases from the goods and services field can be equally relevant in the employment world. Although Northern Ireland does not have an Equality Act which brings together its equality legislation under one roof, the definition of sexual orientation discrimination with which the courts have been grappling in the gay cake case is not materially different from the corresponding provisions which apply across the rest of the UK.
Context is all: Although for practical purposes there is a unified definition of discrimination, the circumstances in which it is applied are necessarily very different, given the wide range of the legislation and the diverse communities in which it operates. As the Court of Appeal pointed out, the dispute arose in a part of the UK where there is a particularly strong faith community, many of whom were opposed to the decriminalisation of homosexuality, which did not happen until 1985 in Northern Ireland. There is still no provision for same sex marriage there, unlike in the remainder of the British Isles. In addition, the exact circumstances in which the bakery refused to supply the cake were important. It was not the case that the refusal to supply would necessarily have been lawful: it was significant that there was no finding that the refusal to supply the cake was because the claimant was gay, thought to be gay, or associated with gay people. Otherwise the outcome would have been different.
Religious belief is not a trump card: Had the refusal to supply the cake been a case of associative direct discrimination, the religious beliefs of the bakery owners would not have provided a defence. In cases of direct discrimination, there is no general right of “conscientious objection” on religious grounds from the requirements of equality legislation (though there are limited exemptions where employment is for the purposes of an organised religion).
Stick to what you know best: Four years of stressful litigation (not to mention a very large legal bill on both sides) could have been avoided if the bakery had narrowed its range of celebration cakes. That way it could have avoided straying in the world of cake-top publishing, an environment where it appears not to have thought carefully enough about the equality framework under which it had to operate.
Charles Pigott, Professional Support Lawyer