Yvonne Gallagher: Gay marriage cake - what next for employers

In October 2018, the Supreme Court heard the so-called “gay weddings cake” case in Northern Ireland, in which an individual who had sought to buy a cake iced with the words “support gay marriage” challenged the refusal of the bakers to supply the cake. The bakers stated that as they were a Christian business they could not print the slogan requested. Although the Judge in the County Court did not consider that this amounted to discrimination on the grounds of Mr Lee’s actual or perceived sexual orientation, the Court of Appeal found otherwise, concluding that the facts gave rise to discrimination by association, which is unlawful under the Equality Act 2010. This was on the basis that Mr Lee’s association with the gay and bi-sexual community was the reason for the refusal.

The case attracted a lot of attention and put a spotlight on an inherent tension in the protection of specified characteristics under the Equality Act. Put simply, protection of Religion and Belief will on occasion inevitably conflict directly with protection afforded to sexual orientation, given that a number of the world’s major religions do not permit same sex relationships or marriage.

What is an employer to do when faced with an apparent clash of rights? The Supreme Court in a pragmatic judgment shows a possible way through. It noted that the purpose of discrimination law is to protect a person who has a protected characteristic (or is associated with such a person) from being treated less favourably because of that characteristic. The purpose is not to protect people without such a characteristic from being treated less favourably because of the protected characteristic of the alleged discriminator. It concluded that this was not, in fact, a case about sexual orientation at all. The baker objected to the request to promote a message with which they did not agree, but had no objection to serving the customer himself. . As the Supreme Court notes “the less favourable treatment was offered to the message, not to the man” and so no unlawful discrimination had occurred this approached has now been followed in a further case ( De Groen v Gan Menachem Hendon ltd).

The Supreme Court noted that the European Convention on Human Rights gives rise to protection of freedom of thought, conscience and religion, and protects both the freedom to believe and the freedom not to believe. Obliging a person to manifest a belief which he does not hold is a breach of these rights. The right to freedom of belief under the Convention is not an absolute right and the law does allow it to be limited, if necessary, in pursuit of a legitimate aim. The bakery could not refuse to provide a cake to Mr Lee because he was gay or because he supported gay marriage but it was not obliged to supply the slogan.

It is worth a look back in this context at the 2007 case involving a Ms Ladele, who was a registrar at the London Borough of Islington and so licensed to conduct marriages. When civil partnerships between same sex couples were permitted, Islington conferred civil partnership registrar status on all its registrars. Ms Ladele did not want to perform civil partnerships, citing her religious belief that marriage was a partnership between one man and one woman only. Initially, she swapped duties with colleagues so that she did not have to officiate at civil partnerships ceremonies but that was not acceptable to Islington who dismissed her for her refusal to do so.

Ms Ladele lost her claim that she had been discriminated against on grounds of her religious belief. Islington stated its aim of promotion of equal opportunities and requiring all its employees to act in a way which does not discriminate against others. That aim was a legitimate aim in the view of the Court of Appeal and it was not disproportionate to insist that Ms Ladele complied with that aim. It did not interfere with the decision of the Tribunal . However the very clear views expressed by the Court of Appeal are of great interest. In particular it said that if Islington had simply not designated Ms Ladele as a civil partnership registrar, no issue of discrimination would have arisen. She would not have been required to officiate at civil partnerships and she could have had no grounds for complaint at such a designation. . The Court expressly recognised the sympathy many would feel for Ms Ladele particularly in relation to what it describes at “the unjustifiable characterisation” by Islington of her refusal to officiate as gross misconduct.

The De Groen case concerned the dismissal of a Jewish employee from a Jewish nursery when parents became aware that she was cohabiting with her boyfriend. The employer indicated that her private life was not their concern, but the fact that this had become known to parents caused them harm and that was why she was dismissed. The EAT concluded that this feel squarely within the Supreme Court analysis, and that the employers protected characteristic was irrelevant.

Taken together, all these cases suggest that the practical course for employers, when faced with a seemingly irreconcilable conflict between religious belief and other protected characteristics will be to consider whether religious belief is in fact the problem or relevant characteristic. If it is not, then pragmatic solutions are likely to present themselves. This might take the form of recognising that an individual with religious beliefs is not permitted to discriminate against others on the ground of a protected characteristic, but must not also be required to conduct themselves as though they supported views which are unacceptable to them.

If the employer can show that it would treat others who do or do not share their religious belief in the same way, then there will be no successful claim for unlawful discrimination on this ground.





Yvonne Gallagher is partner in the employment team at law firm Harbottle & Lewis. She advises clients on a full range of contentious and non-contentious employment law matters. Her diverse practice includes advising on senior executive level recruitment, complex team moves and matters relating to transfer of undertakings (TUPE). She has developed a particular specialism working with employers to resolve complex board disputes.

Yvonne works with clients from a wide range of industry sectors including financial services, technology, media and support services. For many years Yvonne has also advised The Big Issue magazine on a pro bono basis.