One person’s belief is another one’s extremism, one person’s faith is another one’s bigotry: in this article we explore where the boundaries might lie when an employer faces a clash between two protected characteristics.
In recent years we have seen a number of clashes of this type, most notably when religious beliefs of a business owner apparently conflict with the sexual orientation of a customer or service user. The law applies to both service providers and service users and where there is an apparent clash, the courts must intervene to determine where the balance must fall between those conflicting rights.
2018 saw the climax of litigation between Mr Lee, a gay man and Ashers Baking Company Ltd with which he had placed an order for a customised cake with the words ‘support gay marriage’. The cake was to be used as part of an event that had been organised by QueerSpace, an organisation for the lesbian, gay, bisexual and transgender community of Northern Ireland. The owners of the bakery cancelled the order and gave Mr Lee a refund. They felt that the wording on the cake was contrary to their own personal beliefs that marriage, in the Christian religion, must be a union between a man and a woman. Mr Lee brought proceedings for direct discrimination on the grounds of sexual orientation.
The first instance decision went in Mr Lee’s favour. The court determined that since, in its view, the support for gay marriage and sexual orientation were indissociable, the claim for direct discrimination was made out. The Court of Appeal also found in Mr Lee’s favour but for different reasons. The Court of Appeal felt that this was a case of associative discrimination in that there was an “association with the gay and bisexual community” and the protected characteristic was the sexual orientation of that community.
The bakery appealed to the Supreme Court. In an unanimous judgment, the Supreme Court allowed the appeal and substituted its own decision that there had been no discrimination. The Court accepted that the evidence showed that the issue for the bakery was the message that was to be inscribed on the cake, not the person who had asked for it or their sexual orientation. The Court accepted that the order would have been refused in the same way had a heterosexual customer ordered a cake upon which the same inscription was requested. Having established that there was no link between the individual making the request and the request itself, the case failed.
The Court of Appeal rejected the position that, in this case, there was an indissociable link between support for gay marriage and sexual orientation. While it might be more common for those from the LGBT+ community to support gay marriage, it is not a principle or cause that is the exclusive domain of any particular group. In this way the Court was able to distinguish this scenario to those previously considered by the courts where the provision/requirement was a proxy for a protected characteristic. The specific case referred to was James v Eastleigh Borough Council, where the Court determined that a difference in the price of admission to a public swimming pool that was based solely on the different applicable pension ages between the sexes was a direct substitute, or proxy, for the protected characteristic of sex.
Ashers Baking Company is not the first
The case described above is not the first in which the courts have had to consider whether the beliefs of an employee or service user are being restricted by the policies imposed by employers or business owners. We have previously seen a Christian registrar refuse to conduct civil partnerships between same sex couples, the Christian who wanted to wear a cross while wearing her employer’s uniform, the Christian relationship counsellor who refused to offer counselling to same sex couples and the hotel owners who refused to allow a same sex couple to occupy a double-bedded room. Typically, these cases have been held against the employee/service user.
The subject has been in the headlines again this year following the comments made by Australian rugby star Israel Folau in which he was critical of those of the LGBT+ community suggesting that they would end up in hell unless they repented of their sins. The fall out reached these shores when England player Billy Vunipola seemed to endorse the views of Folau with his own comments on Instagram and through his like of Folau’s original social media post. Vunipola was issued with a formal warning by the Rugby Football Union in relation to his remarks.
All of these cases can give rise to consideration of the right of the individual under the European Convention of Human Rights (ECHR) where, specifically, Article 9 provides the right to freedom of thought, conscience and religion. The European Court of Human Rights is quoted as saying that: “Article 9 provides that the freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”
The European Court of Justice (ECJ) summarised how it is every person’s right to hold a belief or maintain a position not to believe. It is these rights that are so central to all of these cases. In the Lee v Ashers Baking Company case, the court was clear to stress that to require the owners of the bakery to print a slogan that would be contrary to a deeply held belief would be contrary to their rights under Article 9. The dividing line is drawn when we understand that the rights conferred by Article 9 are qualified rights, meaning that they may be limited or restricted in accordance with the law and insofar as this is necessary in a democratic society within the pursuit of a legitimate aim.
How should employers react?
It is not difficult to imagine a situation arising in break rooms up and down the country where the beliefs of one employee come into conflict with those of another. Similar arguments may already have taken place between those of differing political persuasions in respect of the ongoing Brexit debate. Does this mean therefore that any employee who expresses a view in support of their own belief may commit an act of misconduct where that same comment has the result in upsetting someone who has a different belief protected characteristic? The answer is almost certainly no, provided that the manner in which the statement is made is not by itself unacceptable.
In the Isreal Folau case, had he simply said that in his view, homosexual relationships were outside of Christian theology, his comments would almost certainly not have resulted in his rugby contract being terminated. By going beyond a statement of belief and essentially insulting a large demographic of society, those comments became offensive and left his employers with little choice but to take steps to make an example of him so as to be sure that there is no repeat.
Where is this heading?
The judiciary is well aware that there is a problem in this area and the decision of the Supreme Court in the case of Ashers Baking Company does little to resolve this conflict. There are many questions that are left unanswered.
Part of the problem is the fact that in UK law, there are very few ways to be able to justify actions of direct discrimination. In a speech that she gave in 2014 at the Yale Law School in the USA, Lady Hale - who gave the leading judgment in Ashers Bakery - identified the main differences between the tests required by the ECHR and those in the UK/EU equality legislation and stated her preference for those used by the ECHR ie that direct discrimination - or any type - may be justified where it is a proportionate response to a legitimate aim. In her speech, Lady Hale explained that it would be preferable for courts to be able to ‘get down to addressing the real issues’ through a means to determine if a response was proportionate, rather than courts having to find a reason why the action was not unlawful in cases where they felt that there was a sound reason for the demonstrated behaviour.
The problem however is that this is an area of law that has its origins in the EU and where the ECJ is the ultimate arbitrator. As a consequence, the hands of the UK Parliament are tied unless either EU law is changed, or we are no longer subject to its constraints. With the possibility of a no-deal Brexit looming large on the political horizon, there is the possibility that in time there will be changes to our law in this area. Until then, business and employers must continue to walk a tightrope in a world with evermore conflicting views.