Black & Anor v Wilkinson

Commercial bed-and-breakfast accommodation is a similar establishment to a hotel or boarding house where accommodation is offered for varying periods and guests receive at least one meal. The home-sharing exception applies only where those taken into the home require special care and attention; it is insufficient that the host provides such care. A policy restricting double rooms to married couples was direct sexual-orientation discrimination because same-sex couples could not marry, although the court was bound by Preddy v Bull and expressed reservations about that reasoning. Alternatively, the policy was indirect discrimination and was not justified. Religious manifestation and anti-discrimination rights require a fact-sensitive proportionality assessment. Legislative consultation and the statutory scheme merit substantial weight but are not conclusive.

Two homosexual partners, who were not in a civil partnership, booked a double room at a family-run bed-and-breakfast establishment. On arrival, the proprietor refused accommodation because the guests were two men sharing a bed. Her policy was to offer double rooms only to married heterosexual couples.

The Slough County Court, Recorder Moulder, held on 18 October 2012 that the accommodation fell within regulation 4(2)(b) of the Equality (Sexual Orientation) Regulations 2007 (SI 2007/1263), that the home-sharing exception did not apply, and that the policy constituted direct discrimination. She also held, in the alternative, that it constituted indirect discrimination which could not be justified. The appeal concerned the meaning of commercial accommodation, the scope of the exception, the distinction between direct and indirect discrimination, and the compatibility and proportionality of the justification defence.

1. Appeal dismissed. The Court of Appeal unanimously upheld the Recorder’s decision.
2. A bed-and-breakfast establishment is a similar establishment to a hotel or boarding house within regulation 4(2)(b) of the Equality (Sexual Orientation) Regulations 2007. Accommodation is provided for varying periods and guests receive at least one meal. Breakfast alone can amount to board. The court applied Otter v Norman [1989] AC 129 in reaching that conclusion.
3. The exception in regulation 6(1) is confined to persons who require a special degree of care and attention. It does not apply merely because guests would receive such care from the proprietor. The claimants did not fall within the specified categories.
4. The court was bound by Preddy v Bull [2012] EWCA Civ 83 to treat the marriage-only policy as direct discrimination. Same-sex couples could never satisfy the marriage criterion. The Master of the Rolls considered that Rodriguez v Minister of Housing and others [2009] UKPC 52 provided a more convincing analysis, treating the issue as indirect discrimination, but the distinction between the present claimants and those in Preddy was immaterial.
5. Direct and indirect discrimination are mutually exclusive. Since the direct-discrimination conclusion might be wrong, the court considered indirect discrimination in the alternative. The policy was applied to unmarried heterosexual couples but placed same-sex couples at a particular disadvantage, and the proprietor failed to justify it.
6. Justification required a proportionality assessment involving an important objective, rational connection, necessity, and fair balance. The rights to manifest religion and to be protected from sexual-orientation discrimination were both important, and neither automatically prevailed. Parliament’s carefully considered scheme and consultation process deserved substantial weight, but did not make the outcome conclusive. The proprietor bore the burden of proving serious economic harm and had not done so.
7. Lady Justice Arden identified justification as a possible safety valve in exceptional cases supported by specific evidence. Lord Justice McCombe added that consultation and secondary legislation would not ordinarily carry the same weight as primary legislation. Those qualifications did not affect the result on these facts.

• Court of Appeal (Civil Division): appeal dismissed on 9 July 2013.
• Slough County Court: Recorder Moulder held on 18 October 2012 that the proprietor had unlawfully discriminated against the claimants in providing bed-and-breakfast accommodation.