Bull & Bull v Hall & Preddy

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.

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

1. 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.
2. 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.