Supreme Court overturns finding of discrimination in “gay cake” case

Insights - 30/11/2018

Francesca Wild, Senior Associate Solicitor in our Employment department explores a recent case involving the LGBTQ community that was taken to the Supreme Court.

In the case of Lee v Ashers Baking Company Ltd and ors, the Supreme Court held that a refusal of a bakery in Northern Ireland to provide a gay customer with a cake displaying the message “Support Gay Marriage” was not discrimination on the grounds of sexual orientation.  Northern Ireland is the only part of the UK that does not allow gay marriage.

This case is of interest not only to those providing goods or services but also to employers dealing with employees whose religious views concerning homosexuality may cause disputes at work.

The case involved ABC Ltd, a bakery,  and CM and KM,  two of its directors.  CM and KM are Christians who oppose the introduction of same sex marriage as they believe it is contrary to God’s law.  ABC Ltd provides a customised cake-making service.

In May 2014, L (who is a gay man), ordered a cake for an event.  He wished the cake to be decorated with a picture of Bert and Ernie from Sesame Street with the caption “Support Gay Marriage”.

L’s order was initially accepted by an ABC Ltd employee.  However, a few days later, KM telephoned L to say that the order could not be fulfilled as the bakery was a “Christian business”.  L was given a refund and he was able to secure a similar cake from another outlet in time for the event.  L brought proceedings in the county court for a breach of equality law.

The County Court upheld the claim and an appeal by ABC Ltd, CM and KM to the Northern Ireland Court of Appeal was dismissed.

ABC Ltd, KM and CM appealed to the Supreme Court.  The Supreme Court allowed the appeal.  Lady Hale, giving the Court’s unanimous judgment, noted that a judge in an earlier hearing of the matter had found that ABC Ltd did not refuse to fulfil L’s order because of his actual or perceived sexual orientation; if it had, that would have been unlawful.   The objection was to the message on the cake, not the personal characteristics of the messenger nor anyone he was associated with. The court distinguished between the two and observed that people of all sexual orientations could support gay marriage; after all the cake could have been requested by a heterosexual.

This finding is a more “orthodox” and narrow interpretation of the law and is in keeping with earlier decisions of the court such as Onu v Akwiwu and anor where it held that mistreatment on the ground of immigration status is not direct race discrimination because immigration status and nationality do not exactly correspond.  This case provides some clarification for employers in what is often a very emotive issue.

If you have any queries about this case, discrimination or employment matters generally then please contact a member of the employment team.

If you have any queries about this case, discrimination or employment matters generally then please contact Francesca Wild or a member of the employment team.

Other articles from November's newsletter

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