Lee v Ashers Baking Company Ltd and others

Direct discrimination requires less favourable treatment because of a protected characteristic. A refusal directed at a message rather than the customer is not discrimination where the same message would be refused for every customer, regardless of personal characteristics.

Equality legislation cannot ordinarily be given effect so as to compel a provider of goods or services to express a message with which the provider profoundly disagrees. Such compulsion engages the freedoms of thought, conscience, religion and expression under articles 9 and 10 of the Convention and requires justification.

A bakery accepted an order for a cake bearing the message “Support Gay Marriage”, but cancelled it because its owners sincerely believed that same-sex marriage was contrary to Biblical teaching. The customer, a gay man who supported same-sex marriage, claimed discrimination on grounds of sexual orientation, religious belief and political opinion.

The county court upheld the claims and awarded £500 damages: [2015] NICty 2. The Court of Appeal dismissed the bakery’s appeal, holding that there was associative direct discrimination on grounds of sexual orientation: [2016] NICA 39. The Supreme Court considered its jurisdiction, the distinction between objection to a person and objection to a message, and the effect of articles 9 and 10 of the Convention.

1. The appeal was allowed unanimously. The objection was to the message requested, not to the customer or anyone associated with him. The bakery would have supplied the customer with other products and would have refused the same message for a customer of any sexual orientation. There was therefore no direct discrimination under the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. Support for same-sex marriage was not a proxy for any particular sexual orientation, since people of every sexual orientation could hold that view.
2. Associative discrimination can fall within regulation 3(1), because its wording does not require the relevant sexual orientation to be that of the person treated less favourably. It nevertheless requires a sufficiently close connection between the treatment and the protected characteristic. No such connection was established here.
3. Support for same-sex marriage was a political opinion for the purposes of the Fair Employment and Treatment (Northern Ireland) Order 1998. However, the less favourable treatment prohibited by that Order must be grounded in the religious belief or political opinion of someone other than the alleged discriminator. The Order does not prohibit treatment merely because of the discriminator’s own beliefs.
4. Even if the customer’s political opinion and requested message were indissociable, articles 9 and 10 protected the bakery owners against being compelled to express a message with which they profoundly disagreed. A business may not refuse goods or services because a customer is gay or supports same-sex marriage. That rule did not justify compelling the production of an expressive product bearing a particular message. Under section 3(1) of the Human Rights Act 1998, the 1998 Order could not be given effect so as to impose such compulsion without justification. None was shown.
5. The company was also not liable. This did not recognise an article 9 right belonging to the company; imposing liability on it would have negated the owners’ Convention rights.
6. Lord Mance held that the Attorney General’s request for a reference under paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 was timely because proceedings continued until the order was drawn up, sealed and filed. The Court of Appeal’s refusal was a procedural error causing significant injustice. The statutory finality provision did not bar an appeal concerning that irregularity, so the Supreme Court had jurisdiction over both discrimination claims.

1. United Kingdom Supreme Court: Allowed the bakery’s appeal unanimously and set aside the findings of unlawful discrimination: [2018] UKSC 49 .
2. Northern Ireland Court of Appeal: Dismissed the appeal and upheld liability for associative direct discrimination on grounds of sexual orientation: [2016] NICA 39. In a later judgment it refused permission to appeal and declined the Attorney General’s requested reference: [2016] NICA 55.
3. County Court: Held that cancellation of the order constituted direct discrimination on grounds of sexual orientation, religious belief and political opinion, declared the legislation Convention-compatible, and awarded £500 damages: [2015] NICty 2.