Clive Dobbin | 21st January 2022

Gay Rights v Religious Rights

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Clive Dobbin | 21st January 2022

Gay Rights v Religious Rights


This blog is about gay rights v religious beliefs and the outcomes of two cases.

The ‘Gay Cake’ row in which a bakery was alleged to have breached a gay customers rights to goods and services has been back in the courts recently, this time in the European Court of Human Rights.

What were the facts of the ‘Gay Cake’ case?

By way of background, the ‘Gay Cake’ row arose as a result of Ashers’ bakery, run by two Christian directors, refusing to make a cake with the slogan ‘ support gay marriage’. The bakery argued that it was not discriminating against the customer, Gareth Lee because of his sexuality but rather it was because of the message Mr Lee wanted on the cake. The County Court did not accept the bakery’s argument and instead found that the bakery should not be permitted to refuse services because of sexual orientation. In this case, it found that the bakery has been directly discriminatory and therefore, (subject to specific exemptions) no justification was available.

The case was appealed to the Court of Appeal who upheld this decision for different reasons, finding that this was essentially a case of associative discrimination. 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.

What did the Supreme Court decide in the ‘Gay Cake’ case?

The Supreme Court reversed the decision. It found that the bakery had not discriminated directly on the grounds of sexual orientation or on the grounds of religious belief or political opinions. The basis for this decision was that just because the reason for less favourable treatment “has something to do with the sexual orientation of some people” does not mean that it is on the grounds of sexual orientation. There must be a closer connection.

The Supreme Court found that the bakery did not refuse to fulfil the order because of Mr Lee’s actual or perceived sexual orientation (which would have been discrimination). They would have provided him a cake without that message. They would have equally refused to provide a cake with the same message requested by a heterosexual customer. The reason for the refusal was their religious objection to gay marriage.

The bakery could not refuse to provide a cake to Mr Lee because he was a gay man, or because he supported gay marriage. However, they could refuse to supply a cake bearing a message with which they profoundly disagreed.

What did the European Court of Human Rights decide?

Mr Lee applied to the European Court of Human Rights (ECHR) arguing that the Supreme Court’s decision interfered within his human rights under the European Convention of Human Rights. The ECHR rejected this application.

This was not on the basis of a consideration of the points raised by Mr Lee. Instead this was on the basis that Mr Lee, who hadn’t been legally represented in the case, has never raised his rights under the European Convention during the court battle and had only raised his rights under English law. The ECHR therefore decided it was not appropriate for them to now consider these issues, when the English courts had not been asked to consider this issue.

This case caused enormous controversy and this is an odd end to the case as the ECHR decided that it was not appropriate to consider the points raised in depth due to essentially a technicality.

What are the implications for employers?

Whilst this case related to service providers, a similar case has since been brought in the Employment Tribunal.

The case involved Sarah Mbuyi. Ms Mbuyi was a nursery worker who told her lesbian colleague that her lifestyle was a sin. Following this, she was sacked for gross misconduct. In this case, the Tribunal concluded that the nursery had been wrong to deem the anti-gay comments as sufficient to justify dismissal. Rather, it found that her dismissal was directly discriminatory because of Ms Mbuyi’s religion. It found that she held a belief that homosexual practice was contrary to the bible and that it satisfied the test for belief namely, a belief “worthy of respect in a democratic society is not incompatible with human dignity and is not in conflict with the fundamental rights of others”. Again, in this case, the decision made was one of direct discrimination and the nursery had no opportunity to justify their reasons for dismissal.

The issue in the Mbuyi case was whether her conduct was sufficiently serious to justify the nursery’s decision to dismiss her. In this case, the Tribunal found that it was not.

These cases offer a stark reminder of the difficult issues that employers and service providers must grapple with when faced with two persons possessing two protected characteristics which demonstrably compete with each other. We recommend that caution is exercised and advice is sought where possible.

If you have any questions regarding this article or discrimination in employment, please contact a member of the Employment team.