Discrimination: from cakes to Cannes - what do you think?

Discrimination: from cakes to Cannes - what do you think?

Published:

Author: Simon Fennell

Applies to: UK wide

On 19 May 2015 a court in Northern Ireland gave judgment in favour of a gay man who complained that he had been subjected to direct discrimination by a bakery.

The bakery refused to complete his order - a cake upon which he wanted a picture of 'Bert and Ernie' and the caption 'Support Gay Marriage'. In making its decision the court determined that the refusal was based on the man's sexual orientation and rejected the bakery's argument that to require it to fulfil the order would be to require it to support a cause that its Christian owners did not agree with and would therefore be in breach of their Human Rights.

Whilst the law in Northern Ireland is different to the rest of the UK, the Equality Act (Sexual Orientation) Regulations (NI) 2006 are broadly in line with the obligations under the Equality Act 2010 and it could be assumed that a similar decision would be made here.

On the other side of the Channel and on the same day, the BBC covered a story from the Cannes Film Festival where allegedly a number of women had been turned away from red carpet events for not wearing high heels. The organisers denied the rumour but if it was true, you might think that a more blatant form of discrimination (in respect of a number of characteristics) would be hard to find.

So with such different approaches to discrimination - something that is at its most basic level a fundamental European principle - do you agree with some of the other decisions made by the courts in recent years?

Scenario 1

A Christian couple run a small hotel and maintain a policy within which they state that double rooms are only to be shared by couples who are married to each other as to do otherwise would be sinful and not in accordance with their particular Christian religious beliefs. When a gay couple who are in a civil partnership arrive after booking a double room, the hotel owners refuse to honour their booking citing their policy that because they are not married, they cannot share a double room.

Is this:

A) Direct discrimination on grounds of sexual orientation?
B) Indirect sexual orientation discrimination?
C) No discrimination at all on the basis that any unmarried heterosexual couple would also have been treated in the same way?

Scenario 2

A public swimming pool charges reduced rates to those who are in receipt of the state pension resulting in different entrance fees applying to women and men in their early sixties.

Is this:

A) Indirect sex discrimination?
B) Indirect age discrimination?
C) Discriminatory but justified by the fact that the pool is only re-using a government policy?
D) Not a problem

Scenario 3

An employee strongly believed that mankind was heading towards catastrophic climate change due to carbon emissions and that there was a moral duty to live in a manner which mitigated or avoided that catastrophe for the benefit of future generations and to persuade others to do the same. He said that his belief affected how he lived his life including his choice of home, how he travelled, what he bought, what he ate and drank, what he did with his waste and his hopes and fears. When he was made redundant he alleged that one of the reasons for his dismissal was his philosophical belief about climate change.

  • Is such a belief capable of protection under the Equality Act 2010?

How did you do?

Scenario 1

Answer A) - according to the Supreme Court the actions of the hotel owners was direct discrimination. The court determined that there was an inextricable link between the policy and the sexual orientation of the guests. In law, a civil partnership is intended to be the equivalent of and equal to marriage and as (at the time) there was no option of marriage for a gay couple, they did comply with the 'marriage' requirement set out by the hotel owners. The only issue therefore was how the owners interpreted marriage and at that point there was no way to ignore the impact that sexual orientation had on their policy. The court determined that the rights of the couple overshadowed any arguments of the owners under the Human Rights Act.

Scenario 2

Answer A) - according to the court, the council could not rely on the state pension age as a way of justifying the discriminatory policy. NB, this case was determined prior to the introduction of Age Discrimination in 2006.

Scenario 3

The court held that such a philosophical belief was capable of protection under the Equality Act 2010. The court noted that to attract protection the belief must:

  • be genuinely held
  • be a belief, not an opinion or viewpoint based on the present state of information available
  • be a belief as to a weighty and substantial aspect of human life and behaviour
  • attain a certain level of cogency, seriousness, cohesion and importance
  • be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others

Conclusion

Discrimination in employment, the provision of services and allegedly on the red carpet is assessed on the same principles and tests when deciding whether certain actions are discriminatory. The bakery and hotel cases are also interesting in that they deal with conflicting rights i.e. sexual orientation versus religious belief with the courts upholding a person's rights in relation to their sexual orientation over another person's religious beliefs.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

About the Author

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Simon Fennell

Senior Associate

03700 86 8371

Simon is an experienced employment specialist works with both the private and public sector in relation to contentious and non-contentious work. He provides advice on all aspects of employment law. Simon has many years of experience working with public sector clients but is also the main point of contact for employment advice with a variety of commercial and retail clients, many of which are household names.

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