By David Reid, Director.
In this analysis, I look at the basis for yesterday’s decision in the case of the Northern Irish bakery which refused to accept a customer order to make a cake which carried a slogan in support of gay marriage and the implications of the decision for employers.
Under UK law, the Equality Act 2010 prohibits discrimination on the grounds of any of nine ‘protected characteristics’. Two such protected characteristics are sexual orientation and religious belief. For a number of years now, the Courts have been grappling with the question of how to respect religious beliefs while ensuring that nobody is treated less favourably on account of their sexual orientation.
We have seen a number of examples of cases where the tension between respecting religious beliefs and providing equality of treatment to those of all sexual orientations has been evident.
In 2010, the Court of Appeal decided that the London Borough of Islington was entitled to threaten one of its Christian registrars with dismissal for refusing to carry out civil partnership services for gay couples. In 2013, the European Court of Human Rights ruled that the Borough’s decision did not infringe upon the registrar’s human rights.
Also in 2013, the Supreme Court decided that a Christian couple unlawfully discriminated against a gay couple by refusing to allow them to book a double room in their guest house.
Looking at these decisions superficially, one might therefore have thought that Gareth Lee, a gay rights activist, would be likely to win his case against Northern Irish bakers, Ashers, when on the grounds of religious belief, they declined his order for a cake decorated with a message supporting gay marriage. The family-run bakery business took the view that they could not fulfil the order as it conflicted directly with their religious beliefs that heterosexual marriage was the only acceptable form of marriage under God’s law.
Mr Lee did succeed in his initial claim that he had been unlawfully discriminated against on the grounds of his sexual orientation, and this decision was upheld by the Northern Ireland Court of Appeal. However, yesterday, the Supreme Court unanimously reversed this decision and ruled that the refusal to fulfil the order for the cake did not amount to unlawful discrimination, either on the grounds of sexual orientation or (uniquely to Northern Ireland) on the grounds of political belief.
The Supreme Court’s ruling on the case is final and there can be no further appeal on this matter. The ruling is undoubtedly controversial, but understanding its rationale assists employers in understanding the limits of an employee’s protection on the grounds of their religious beliefs, when these beliefs conflict with other protected rights or characteristics.
The bakery’s fundamental argument in this case was that they did not refuse the order because of Mr Lee’s sexual orientation. They said, and the Supreme Court accepted, that they would have refused an order from a heterosexual customer who wished the same cake to be baked and decorated with the same message in support of gay marriage. They said they had served Mr Lee before and would serve him again. They simply would not produce a cake with a message in support of gay marriage.
The Supreme Court found favour with this argument. They decided that it is possible to separate somebody’s sexual orientation from the position that they might take in relation to an issue such as whether gay marriage should be lawful or not. They disagreed with the Northern Ireland Court of Appeal that the message in support of gay marriage was ‘indissociable’ from Mr Lee’s sexual orientation.
We can see that this situation does differ from the case of the Christian registrar mentioned above, where the registrar’s position was that he would not officiate in a same sex civil partnership service. One might say that, in effect, he was refusing to provide a service to a same sex couple. Likewise, one might say that the guest house owners mentioned above were also refusing to provide the service of providing a double room to a same sex couple. These are examples of ‘direct’ discrimination, where someone is treated unfavourably on the ground of a protected characteristic (such as sexual orientation).
Therefore, what does this mean for employers, in terms of respecting the religious beliefs of their employees?
We can firstly say with confidence that as an employer, you can still require your employees to provide a service to all sections of the community, regardless of their religious beliefs. Nothing in the Supreme Court’s decision changes the well established prior case law on this point.
We can also say with some degree of confidence that employers remain entitled to have policies in place to limit an employee’s right to manifest their religious beliefs in the workplace, as long as these policies are in pursuit of a legitimate aim and achieve that legitimate aim proportionately. Therefore, policies prohibiting the wearing of religious symbols in customer facing roles may remain objectively justifiable. (However, careful legal advice should be taken before such policies are implemented).
One area, however, that remains unclear, is the extent to which an employee could legitimately refuse to carry out work instructed by his or her employer, where the employee genuinely considers the work to be contrary to their religious beliefs. For instance, could a devoutly religious recruitment consultant, who genuinely believes it is a sin to work on the Sabbath, be dismissed for refusing to act for a client who wished to recruit staff to work on that particular day of the week? Answers to questions like that are very much fact sensitive and depend to a great extent on the proportionality of the instruction given by the employer.
So while the Supreme Court’s decision in the Ashers case does not answer all of the questions employers might have about the extent to which religious beliefs in the workplace must be respected, it does tell us that there is sometimes a distinction between refusing to provide your services to a certain section of the community and refusing to carry out a request that conflicts with some deeply held religious or philosophical belief you may have.
Clearly, when the request is coming from an employer rather than a customer, it may feel more difficult to refuse, but employers should be alert to the sensitivities of such matters and take detailed legal advice before disciplining or otherwise penalising employees who say they cannot or will not do something because of their religious beliefs.
If you have any questions about this analysis, or you would like support or guidance on any other employment law matter, please do not hesitate to contact a member of our legal team on 0141 331 5150.