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By Eric Gilligan, Partner and head of Stronachs’ employment team

This week was supposed to see what has become known as the “Gay cake case” reach the Court of Appeal in Northern Ireland but following an intervention by the Northern Irish Attorney General the case has now been postponed to March.

Many will recall the controversy over the Ashers bakery refusal to bake a cake for a homosexual customer, Mr Lee which was to bear the caption “Support Gay Marriage”. The County Court in Northern Ireland decided (in a case backed by the Equality Commission for Northern Ireland) that the treatment of the customer amounted to direct discrimination on grounds of his sexual orientation.

The bakery owners maintained that that they had not discriminated against Mr Lee because he was gay. Their position was and remains that their issue was “with the message, not the customer” and that carrying out the order was inconsistent with their Christian beliefs. In particular their argument was that had any other customer, regardless of their sexual orientation, ordered the same cake they would have been treated in the same way. The District Judge rejected this argument on the basis that the correct comparator would be a heterosexual person placing an order for a cake with the proposed caption “Support Heterosexual Marriage.”

On the assumption that such order would not have been refused direct discrimination was found to have occurred. This reasoning was predicated on the explicit proposition that support for gay marriage is “indissociable” from sexual orientation.

This followed the Supreme Court decision in Bull and Bull against Hall which was concerned with the refusal by a hotel to offer a double-bedded room to a same-sex couple.

But there are legitimate arguments that the Ashers situation is quite different. The fact that someone is in a same-sex relationship cannot be distinguished from their sexuality but the same cannot be said from support for gay marriage. Many people who are not gay or associated with gay people support same-sex marriage. Indeed the result of the Irish referendum on the point makes this abundantly clear.

Perhaps surprising support for this argument had come from Peter Tatchell, the gay rights campaigner and not someone who could be accused of being other than a passionate opponent of discrimination on grounds of sexual orientation. In an article in the Guardian on 1 February, Mr Tatchell, though not a lawyer provided a cogent analysis of the case indicating why he had changed his mind on the controversy.

Although he states that he profoundly disagrees with Ashers opposition to same-sex marriage and disputes the theological basis for their objection he argues that the court was wrong to penalise them. He goes on to contend that it is clear that the cake request was refused not because Mr Lee was gay but because of the message he asked for. In relation to the protection intended by the law he points out that “there was never an intention that this law should compel people to promote political ideas with which they disagreed”.

If that were so he suggests Jewish bakers might be compelled to publish the words of a holocaust denier or gay bakers accept orders incorporating homophobic slurs.

Given that this is obviously a service provision case rather than an employment one does it have any particular implication for employers? The issue are not quite the same but where similar ones might arise is where an employer may seek to discipline, dismiss or refuse to recruit an employee on grounds of their behaviour. Will the Employment Tribunal recognise the validity of a distinction between concerns about behaviours e.g. proselytising for a particular cause and that individual’s protected characteristics be it sexual orientation, religion or belief?

It will be interesting to see how the case progresses but many might hope that the principled generosity of Mr Tatchell’s approach is reflected in the decision of the Court of Appeal.

Chambers UK 2106

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