The Northern Ireland Court of Appeal recently handed down its decision in the so-called ‘gay cake’ case, more properly known as Lee v Ashers Baking Company. This was an interesting example of how to treat conflicts between different types of discrimination – in this case discrimination on the grounds of sexual orientation vs. religious belief.

Ashers Bakery, owned by Mr & Mrs McArthur, cancelled an order taken by their shop assistant to decorate a cake with a picture of Bert & Ernie and the caption ‘Support Gay Marriage’. The McArthurs are devout Christians who believe that gay marriage is sinful, and they accepted they cancelled the order because of that belief.

The Court of Appeal upheld the county court’s decision. It decided that the benefit from the slogan could only accrue to gay or bisexual people, and that the McArthurs would not have objected to decorating a cake saying ‘Support Heterosexual Marriage’.  The reason why they cancelled the order was that the message related to gay marriage.  Accordingly this was a case of ‘associative discrimination’ with the gay and bisexual community, and amounted to direct discrimination.

Now the obvious question you might ask is “what about the McArthurs’ own right to their religious beliefs?”. Well, the Court of Appeal went on to find that their right to free speech (i.e. objecting to gay marriage) was not being infringed.  The reason for this was that nobody could reasonably conclude that by icing a cake, they were expressing personal support for the slogan – just as icing witches on a Halloween cake wouldn’t indicate that they support witchcraft!

Finally, the Court of Appeal said that the McArthurs were entitled to refuse to decorate cakes involving any religious or political message, but they were not allowed to refuse to decorate cakes which carried a particular religious or political message just because it conflicted with their own views.

This case shows us that we need to be very careful if we put in place a rule in business which may discriminate against a particular group of people. The Equality Act 2010 defines a number of protected characteristics:

  • Age
  • Disability
  • Gender reassignment
  • Marriage or civil partnership
  • Pregnancy and maternity
  • Race
  • Religion belief
  • Sex
  • Sexual orientation

The Act makes it illegal to discriminate directly or indirectly against someone on the grounds of one of these protected characteristics.

If you are concerned that your business may be at risk from a discrimination claim from staff or customers we are here to help. Please contact a member of our specialist employment team and we will look at the situation and help you resolve it.

The Backhouse Solicitors Team

Tel:         01245 893400