The recent high profile case of Lee v McArthur and others in Northern Ireland has received a lot of press attention, concerning the refusal of a bakery to provide a cake with a pro-gay marriage slogan.
Mr Lee had ordered a cake from Asher’s Bakery, owned by Mr and Mrs McArthur, which was to have the iced message ‘Support Gay Marriage’. Due to their Christian beliefs, Mr and Mrs McArthur oppose the introduction of same-sex marriage and cancelled Mr Lee’s order, having initially accepted it. Mr Lee obtained a cake from another bakery.
Mr Lee claimed that he had been directly discriminated against on the grounds of sexual orientation. The County Court in Northern Ireland upheld this claim, finding that the refusal to accept the order and make the cake was on grounds of sexual orientation, as they would have made a cake that said ‘support marriage’ or ‘support heterosexual marriage’.
Mr and Mrs McArthur appealed to the Court of Appeal of Northern Ireland, arguing that their rights under Articles 9 and 10 of the European Convention of Human Rights (being the rights to freedom of thought, conscience or religion and freedom of expression) had to be taken into account and the equality legislation should accommodate these.
The Court held that to do so would be to permit direct discrimination and allowing businesses to choose what services to provide to LBGT people on the basis of religious belief would result in significant potential for arbitrary abuse. It also found that it was not a case of forced speech which would result in their right to freedom of expression being infringed. Icing a message on a cake did not require them to support that message, with the court noting that on their leaflets the bakery had pictures of Halloween cakes with witches and cakes featuring football teams, which did not mean they advocated, believed in or supported these things. The Court therefore upheld the decision that Mr Lee had been directly discriminated against.
This case is not directly related to employment law but is interesting in considering circumstances where there is an apparent conflict between two protected characteristics and how this might be resolved. The decision is not surprising in that it is in keeping with decisions in previous employment law cases where the tribunals and courts have been required to address a “clash of rights”, such a Ladele v London Borough of Islington, where the Court of Appeal held that it was not discriminatory (on grounds of religion or belief) to require a registrar to carry out registration of civil partnerships, which she objected to on the grounds of her religious beliefs. A similar approach was taken in the case of Wasteney v East London NHS Foundation Trust, where the “clash” arose between two different religious faiths. Mrs Wasteney had been dismissed for unduly pressuring a junior Muslim colleague to convert to Christianity. The Court held that Mrs Wasteney had not been discriminated against on grounds of religion.
The general rationale of the courts in these types of case is that there is a difference between the holding of a religious belief and the manifestation of that belief: an employee is entitled to hold their particular religious beliefs, but that does not mean they are permitted to enforce those beliefs upon others.
These can be difficult issues for employers to deal with and it is important to balance the rights of each employee.
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