Bull and another v Hall and another

A commercial service provider directly discriminates on grounds of sexual orientation by treating civil partners less favourably than married opposite-sex couples. For discrimination purposes, marriage and civil partnership are not materially different circumstances.

Alternatively, restricting double-bedded accommodation to married couples indirectly discriminates against same-sex couples. A sincere religious belief about sexual relations outside marriage does not justify that disadvantage. Enforcing equal access to commercial services is a proportionate limitation on the provider’s freedom to manifest religion. Reasonable accommodation may form part of proportionality, but it cannot legitimise conduct prohibited by discrimination law.

The appellants, Christian hotel proprietors, restricted double-bedded rooms to heterosexual married couples. They refused such a room to the respondents, a same-sex couple in a civil partnership, although the room had already been booked.

The Bristol County Court found direct discrimination under regulation 3(1) of the Equality Act (Sexual Orientation) Regulations 2007, alternatively unjustified indirect discrimination under regulation 3(3). It awarded each respondent £1,800. The Court of Appeal unanimously dismissed the proprietors’ appeal in [2012] EWCA Civ 83; [2012] 1 WLR 2514.

The Supreme Court considered whether the refusal was direct or indirect discrimination, whether any indirect discrimination was justified, and whether the Regulations had to be read differently under section 3 of the Human Rights Act 1998 to protect the proprietors’ article 9 rights.

1. Disposition. The appeal was dismissed unanimously. Lady Hale, Lord Kerr and Lord Toulson held that the refusal was direct discrimination. Lord Neuberger and Lord Hughes classified it as unjustified indirect discrimination. All members agreed that any indirect discrimination was unjustified and that enforcing the Regulations was compatible with article 9.
2. Direct discrimination. Per Lady Hale, Lord Kerr and Lord Toulson, regulation 3(4) required civil partners and married couples to be treated as being in circumstances without a material difference. The respondents received less favourable treatment than married heterosexual couples. Their sexual orientation was the decisive differential because civil partnership provided same-sex couples with the legal counterpart of marriage. The criterion applied was therefore indissociable from sexual orientation. The proprietors’ religious motive or lack of an intention to discriminate was irrelevant: the objective criterion causing the treatment controlled.
3. Minority classification. Lord Neuberger and Lord Hughes considered that the policy discriminated because the respondents were unmarried. It applied equally to unmarried opposite-sex couples, so there was no exact correspondence between the disadvantage and sexual orientation. On that analysis, regulation 3(4) established the comparator but did not convert indirect discrimination into direct discrimination.
4. Indirect discrimination and justification. The policy placed homosexual people at a serious disadvantage because same-sex couples could not enter the form of marriage accepted by the proprietors. It could not reasonably be justified under regulation 3(3)(d). Parliament had established civil partnership so that same-sex couples could assume substantially equivalent legal rights and obligations and receive equal respect. Regulation 14 contained a carefully limited exemption for religious organisations, but Parliament provided no conscientious-objection exemption for individual commercial service providers.
5. Convention rights. The policy manifested the proprietors’ religion under article 9, but the restriction was prescribed by law and protected the respondents’ ordinary-law right not to suffer discrimination. It bore a reasonable relationship of proportionality to that legitimate aim. Reasonable accommodation may be relevant to proportionality in some cases, but offering twin beds could not justify denying equal access to double-bedded accommodation. Section 3 of the Human Rights Act 1998 therefore required no altered reading of the Regulations.

1. United Kingdom Supreme Court: Dismissed the appeal unanimously in [2013] UKSC 73. A majority of three classified the conduct as direct discrimination; all five Justices agreed that any indirect discrimination was unjustified and that the result was compatible with article 9.
2. Court of Appeal: Unanimously dismissed the proprietors’ appeal in [2012] EWCA Civ 83; [2012] 1 WLR 2514. It held that the refusal was direct discrimination and that enforcing the Regulations was a justified limitation on manifestation of religion.
3. Bristol County Court: His Honour Judge Rutherford found direct discrimination, alternatively unjustified indirect discrimination. He held that the interference with the proprietors’ Convention rights was necessary and proportionate, and awarded each claimant £1,800.