Following the ‘Gay Cake’ row in which a bakery was found to have breached a gay customers rights to goods and services, we now have a further case on sexual orientation, although this time it is an employment 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.

Turning to the case involving 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.

On first consideration, these decision seem contradictory but this is not actually the case. In both cases, the conduct of Bakery and Mbuyi were found to be discriminatory against another because of sexual orientation. However, 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 do offer a stark reminder of the difficult issues that employers and service providers must grapple with when faced with two persons possessing two protected characteristic which demonstrably compete with each other. We recommend that caution is exercised and advice is sought where possible.

In relation to the Gay Cake row, the bakery has submitted an appeal and therefore, it will be interesting to see how this unfolds. With regard to Ms Mbyui’s case, there is no indication of whether the nursery will appeal the decision. However, given the overall finding, it will be interesting to see if any gay rights charities intend to pick up the legal bill for an appeal.

We will keep you updated.