Summary
A requirement that a couple must be married can constitute direct discrimination on grounds of sexual orientation, even if it applies to all unmarried couples. A same-sex couple cannot satisfy the requirement, whereas an opposite-sex couple can. The objective comparison asks whether the claimant would have received the same treatment but for the protected characteristic.
Religious belief and its manifestation receive protection under Article 9 ECHR, but the right to manifest belief is qualified. A hotelier cannot rely on religious belief to obtain an additional exemption from legislation requiring equal access to commercial services. The restriction was therefore a proportionate measure protecting the rights and freedoms of others.
Factual background
The appellants operated a hotel and allowed double-bedded rooms to be occupied only by married couples. The respondents, a same-sex couple in a civil partnership, were refused the double room they had booked.
HHJ Rutherford found direct discrimination under regulation 4(1) of the Equality Act (Sexual Orientation) Regulations 2007 and awarded each respondent £1,800 for injury to feelings. He also considered that there would have been indirect discrimination if the direct-discrimination finding were wrong. The appeal concerned direct discrimination, compatibility with the ECHR, the appellants’ religious freedom, and the alternative indirect-discrimination case.
Held
- Appeal dismissed. Rafferty LJ delivered the leading judgment. The Chancellor and Hooper LJ agreed. Hooper LJ added that the result did not depend on whether the same-sex couple were in a civil partnership.
- The restriction was direct discrimination. The correct comparison was objective: whether the respondents would have received the same treatment but for their sexual orientation. A same-sex couple could not comply with a marriage requirement, whereas an opposite-sex couple could. Applying the restriction to unmarried heterosexual couples as well did not alter that conclusion. The reasoning in James v Eastleigh Borough Council [1990] 2 AC 751 was directly analogous. Regulation 3(4) reinforced the conclusion by preventing marriage and civil partnership from being treated as materially different circumstances.
- It was unnecessary to decide indirect discrimination under regulation 3(3). The appellants had accepted that, once direct discrimination was established, their justification arguments would not succeed.
- The appellants’ genuine belief and the operation of the hotel according to that belief constituted a manifestation protected by Article 9 ECHR. The relevant threshold for an Article 9 belief was identified by reference to Williamson and required consistency with basic standards of human dignity or integrity, seriousness and importance, and intelligibility. However, the right to manifest belief was qualified. Article 9 did not entitle a person to manifest religion in a commercial setting so as to obtain exemption from generally applicable equality legislation. The approach in Ladele, supported by the Strasbourg and other authorities considered, was applied. The restrictions pursued the protection of the respondents’ rights and freedoms and were necessary and proportionate.
- The Regulations contained specific exceptions, including for certain arrangements involving a person’s home and for religious organisations. The court declined to create a further exception for hoteliers or to rewrite the legislative boundary approved by Parliament. The appellants’ age and proximity to retirement did not make the restriction disproportionate.
- Although the lower court had been wrong to conclude that it had no power to disapply incompatible subordinate legislation, that error did not affect the result. Section 13 of the Human Rights Act 1998 added nothing on these facts and concerned religious organisations. The late EU Charter argument could provide no greater rights than the ECHR.
The court’s approach to earlier authorities
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Appellate history
- Court of Appeal (Civil Division): appeal dismissed. The court upheld HHJ Rutherford’s finding that the appellants had directly discriminated against the respondents under regulation 4(1) of the Equality Act (Sexual Orientation) Regulations 2007.
- Bristol Civil Justice Centre: on 18 January 2011, HHJ Rutherford declared that the appellants had unlawfully discriminated against the respondents, awarded £1,800 to each respondent for injury to feelings, and considered indirect discrimination as an alternative.
Appeal route
- Appealed fromNot stated in the judgmentThis appealappeal dismissed (unanimous)
- This judgment [2012] EWCA Civ 83 Court of Appeal (Civil Division)
- Appealed to[2013] UKSC 73Outcomeappeal dismissed unanimously
Key cases cited
22 authorities cited.
- R (on the application of E) v The Governing Body of JFS and the Admissions Appeal Panel of JFS and others [2009] UKSC 15
- R (on the application of Begum (by her litigation friend, Rahman)) (Respondent) v. Headteacher and Governors of Denbigh High School (Appellants) [2006] UKHL 15
- Regina v. Secretary of State for Education and Employment and others (Respondents) ex parte Williamson (Appellant) and others [2005] UKHL 15
- Ghaidan (Appellant) v. Godin-Mendoza (FC) (Respondent) [2004] UKHL 30
- Shamoon (Appellant v. Chief Constable of the Royal Ulster Constabulary (Respondent)(Northern Ireland) [2003] UKHL 11
- James v Eastleigh Borough Council [1990] 2 AC 751
- McFarlane v Relate Avon Ltd [2010] IRLR 872
- Ladele v London Borough of Islington [2009] EWCA Civ 1357
- Saeedi, R (on the application of) v Secretary of State for the Home Department & Ors [2010] EWHC 705 (Admin)
- An Application for Judicial Review by the Christian Institute and others [2007] NIQB 66
- EB v France (2008) 47 EHRR 509
- R. (on the application of Countryside Alliance) v Attorney General [2008] H.R.L.R. 10
- Sahin v Turkey (2007) 44 EHRR 5
- R (Amicus) v Secretary of State for Industry [2004] IRLR 430
- Ontario Human Rights Commission v Brockie [2002] 22 DLR (4th) 174
- Salguerio da Silva Mouta v Portugal (2001) 31 EHRR 47
- Christian Education South Africa v Minister of Education (2000) 9 BHRC 53
- Kokkinakis v Greece (1993) 17 EHRR 397
- James v United Kingdom (1986) 8 EHRR 123
- C v United Kingdom App. No.10358/83
- Campbell and Cosans v United Kingdom (1982) 4 EHRR 293
- Pichon and Sajous v France Application 49853/99
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Cases citing this case
3 later cases · 1 positive · 2 caution
Most senior citing decisions:
- Black & Anor v Wilkinson [2013] EWCA Civ 820 followed
- JS & Ors, R (on the application of) v Secretary of State for Work and Pensions & Ors [2013] EWHC 3350 (QB) explained
- Raabe, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1736 (Admin) explained
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