EMPLOYMENT

Supreme Court Rules on "Gay Cake case" 

The Supreme Court delivered a unanimous judgement today in the case of Ashers v Lee – the so called Gay Cake case. It has ruled that there were no grounds for discrimination, upholding Ashers’ appeal. As most readers will recall Ashers refused to provide a cake which Mr Lee had ordered with the slogan "Support Gay Marriage" iced on top. Mr Lee issued proceedings claiming he had been discriminated against on grounds of sexual orientation, political opinion and religious belief. His claim was successful at first instance in the County Court and also following appeal by Ashers in the Court of Appeal. Ashers subsequently appealed that decision to the Supreme Court.

The unanimous judgement was delivered by Lady Hale. The rationale for coming to the decision was based on the finding that the bakery did not refuse to fulfil Mr Lee’s order because of his sexual orientation, his personal characteristics or anyone with whom he was associated. Rather the refusal was premised on their objection to the message that was to be iced on the cake. Lady Hale and the court formed the view that Ashers would have refused to provide a cake with that message for any customer, irrespective of their sexual orientation and therefore ruled there was no discrimination on grounds of sexual orientation.

The appeal on the issues of religious belief or political opinion was also successful (but the decision making more complicated). The court interpreted the Fair Employment and Treatment (NI) Order 1998 in light of the rights contained in Articles 9 and 10 of the European Convention on Human Rights (ECHR), those rights being freedom of thought, conscience and religion and freedom of expression respectively. These rights include the right not to be made to manifest a belief that one does not hold. Given the court’s finding that the refusal to bake the cake was not because of Mr Lee but the promotion of the message on the cake, it followed that it could be distinguished from situations where people were refused jobs or services due to their religious beliefs. However the court did hold that arguably the message could not be dissociated from Mr Lee’s political opinion. The Court then considered the impact of Ashers owners’ ECHR rights. The Court held that those rights should not be interpreted in such a way as to compel Ashers to put the slogan on the cake unless some form of justification was shown, and it had not been in this case. The Equality Commission, who backed Mr Lee’s case, are considering the judgement before a decision is made on the next course of action. Given that the case essentially comes down the balance of competing rights it has proved both newsworthy and divisive. For anyone providing services it should be noted that the court expressly stated that the rights of individuals with protected characteristics should be protected. In that regard this decision should not be seen as a ‘carte blanche’ to refuse services to paying customers.

For any queries on the issues raised in this case or any other employment queries please contact the Employment team at MMW.

Anyone interested the judgment can be found in full from the following link: https://www.supremecourt.uk/cases/docs/uksc-2017-0020-judgment.pdf

 

 

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