Discrimination Law Clarified in Gay Cake Case

Gay Lawyers deals with many cases of sexual orientation discrimination, particularly in the workplace.  Often an individual who has suffered several instances of sexual orientation discrimination fails to record any of the incidents at the time they happen and fail to seek witnesses to support the allegations.  It is of paramount importance that anyone who wishes to bring a case where they feel that they have received less favourable treatment due to their sexual orientation, (which is a protected characteristic in law), tries to gather evidence that there has been discrimination based on their sexual orientation.  

If there is no supporting evidence for such an allegation it is much harder to prove and often boils down to one person’s word against another.  Also, there should always be an attempt to resolve the situation through the company’s grievance protocol, as failure to attempt to access the procedures set out by your employer is not looked on particularly favourably by the courts; as this may suggest that the complainant appears to be troublesome or looking for a payout rather than resolution.

The four and a half year old case between Gareth Lee and Asher’s Bakery costing approximately £500,000 which saw the Equality Commission of Northern Ireland spend £251,000 of public money to help Mr. Lee fight the case and The Christian Institute, a charity, spent £250.000 of the donated money to assist Asher’s Bakery, has finally ended.  In doing so this has assisted, to some degree, in shedding light on the law on sexual orientation discrimination and what can actually be regarded as sexual orientation discrimination.

Just to re-cap on the case:

  • In 2014 Gareth Lee, a gay activist, submitted an order to Asher’s Bakery in Belfast for a cake bearing an image of Sesame Street puppets Bert and Ernie with the words “Support Gay Marriage”.  His order was accepted and Mr. Lee paid in full.
  • The owners of the bakery, Daniel and Amy McArthur, refused to fulfil the order on the basis of their devout Christianity. 
  • Mr. Lee received a refund but then brought proceedings against Asher’s for direct discrimination on the grounds of his sexual orientation.  
  • Initially Mr. Lee won the day and Belfast County Court awarded £500 to Mr. Lee, a small token amount of damages. 
  • Asher’s appealed and the judgment was upheld in the Northern Ireland Court of Appeal. 
  • The bakery appealed again to the Supreme Court and the Supreme Court ruled that Asher’s did not commit direct discrimination against Mr. Lee.

Asher’s Bakery has been exonerated and the ruling has clarified, at least in this particular case, the fine line between the rights of religious belief over sexual orientation.  The ruling is being hailed as a victory for freedom of speech.

Lady Hale, one of the five Supreme Court Judges, explained that Asher’s Bakery had not objected to Mr. Lee’s order due to the fact he was gay but had actually only objected to the wording that Mr. Lee had requested.  Lady Hale made it quite clear that refusing to service or supply a person simply because of their sexual orientation remained against the law.  Lady Hale further commented that Asher’s Bakery had discriminated against the message and not Mr. Lee.  Asher’s would have refused to fulfil a cake order if Mr. Lee had not been gay if the cake had the same message. 

The protected characteristics which are governed by the narrower limits of the law are: gender, race and age.  Disability discrimination has broader scope.   

Mr. Lee was disappointed with the ruling saying he felt like a second-class citizen and commenting “I think this has consequences for everyone. Anyone can walk into a shop – you shouldn't have to work out if you're going to be served based on their religious beliefs. I am confused.  I'm concerned, not just for the implications for myself or other gay people, but for everyone single one of us. Do we have to guess when we go into a shop whether we're going to be served or not?”

Interestingly, the prominent LGBT campaigner, Peter Tatchell, when interviewed on Premier Christian Radio commented “although I disagree with the Asher’s opposition to marriage equality in a free society neither they – nor anyone else – should be forced by law to facilitate a political idea that they oppose.  He further remarked “what is significant about this ruling is that it doesn’t permit anyone to discriminate against LGBT people, such discrimination would remain rightly unlawful.  But in this case, Asher’s did not discriminate against the customer because he was gay.  They objected to the message he wanted on the cake”.

Gay Lawyers believes that the case will have ramifications that may impact on future cases where services or goods are withheld from a person from the LGBT community.

For more information about sexual orientation discrimination please email contact@gaylawyers.com or telephone 020 7043 5923