In a move that has been described by business leaders as “a savage blow” for employers, the government has today announced that the scope for fairly dismissing employees has been dramatically reduced.

Employers should note that from today, employees will be able to bring unfair dismissal claims, irrespective of how short a time they have worked for their employer. Further, most of the fair reasons for dismissal provided for in employment legislation are being repealed. From today, it will no longer be possible to fairly dismiss an employee for misconduct, poor performance, capability or redundancy. The result is that dismissals will only be fair if an employer can show “some other substantial reason justifying the dismissal of the employee”. One senior government official was heard to mutter “good luck with finding one” on his way into work today.

In addition, even if a “substantial reason for dismissal” can be established, the dismissal will be automatically unfair in law if the employer does not follow a new 17 step procedure that replaces the previously straightforward 3 step procedure that has been in force since 2004. The new process, which will apply to all dismissals from today, will involve an employer, as a minimum, having to carry out 3 investigations, 4 disciplinary hearings and 6 appeal hearings. Employees will have the right to be accompanied at all meetings throughout this process by a work colleague, trade union representative, lawyer, political representative, family member, friend or a reality TV star of their choice. It is estimated that the average cost to an employer of having an employment lawyer draft a legally compliant procedure for the employer to follow will be in the region of £3,000.

Other new employment law rights being given to workers today include:-
-          An increase in annual leave entitlement – from 5.6 weeks to 5.6 months
-          Full pay during sickness absence for up to 6 months
-          The right not to be discriminated against on the basis of hair colour

Commenting on the reforms, the Chair of the UK Business Owners’ Association (UKBOA), Mrs M Ployer said “coming hot on the heels of the increase in the National Minimum Wage, the changes to employment law announced today are a savage blow to employers across the country”.

However, an alternative view was expressed by the Secretary of the Workers Union, Mr Noah Rites, who said that the reforms were “long overdue”. Commenting further, he said “for too long employers have been able to dismiss employees for trivial reasons such as theft or a complete inability to do the job. The reforms announced today will come as a relief to millions of hard-working families all across the country.”

With questions already being asked over the legality of the reforms in light of the UK’s membership of the European Union and a possible challenge by the UKBOA being brought to the European Court, no doubt the issue of the employment law shake-up will be a hot topic in debates leading up to the “Brexit” referendum on 23^rd June.

Disclaimer! This article may not be entirely accurate – although readers should note that the National Minimum Wage really has increased from today to £7.20 per hour for employees aged 25 and over

The employment relationship can come to an end for a variety of reasons. Where the employee decides to move on to a new opportunity or retires, it is usually straightforward. Similarly, if an employee is dismissed for misconduct, there is a clear procedure to follow and, provided that this is adhered to and the employer has a fair reason for dismissal, there ought to be no difficulty

There are however a wide range of other reasons why an employer may want to bring an employment relationship to an end. Often when there have been tensions in the relationship or performance issues or a long term sickness absence, it can be difficult for an employer to know how to go about bringing the employment to an end. Then there are a variety of reasons why sometimes employers report that “It’s just not working out”.

In these circumstances, employers often consider offering the employee an enhancement on their statutory entitlement to notice and/or redundancy pay in exchange for the employee waiving their right to bring unfair dismissal proceedings or some other claim to the Employment Tribunal arising out of their employment or its termination.

Often I am asked if I can draft a letter for the employee to sign, saying that they are accepting the sum of money offered “in full and final settlement”. Unfortunately, it is not so straightforward. Employers need to be aware that, in order for the agreement to be binding, it either needs to be entered into with the assistance of a conciliation officer from the Labour Relations Agency (in NI) or ACAS (in GB) or the settlement agreement needs to include certain terms. If the agreement is not concluded with the assistance of a conciliation officer then the following conditions must be met:-

-          The agreement must specify the complaint that is being compromised / settled

-          The employee must have received advice from a qualified adviser (usually a Solicitor)

-          The adviser must have professional indemnity insurance in place

-          The agreement must identify the adviser

-          The agreement must state that the statutory requirements regarding settlement agreements have been met

A failure to ensure these criteria are met will lead to the agreement not being binding and may leave the employer still vulnerable to a claim. A simple letter, purporting to waive the employee’s rights to bring a claim simply will not suffice.

As the agreement is not binding unless the employee has received legal advice, it is usual for the employer to pay the employee’s legal fees in obtaining advice that leads to the execution of a valid compromise agreement.

In any situation where an employer is considering that the employment of an employee may come to an end and the employer is considering offering a settlement, specific advice should be taken to ensure that all of the formalities are taken care of to ensure that the agreement entered into is legally binding.

This article intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact me.

Employees have certain rights during disciplinary and grievance processes.  One of these rights is that the employee may bring someone along to the disciplinary or grievance meeting to accompany them. Often the identity of the companion and the companion’s role in the process are causes of confusion for employers in dealing with these matters.

It is important at the outset to distinguish between investigatory and disciplinary meetings. A meeting to investigate an incident is simply a fact-finding exercise prior to formally putting allegations to the employee in the context of a disciplinary hearing. There is no right for employees to be accompanied at investigatory meetings unless an employer’s internal policies provide for accompaniment at this stage.

Recent case law has established that where a person’s professional career is at risk, for instance in the case of serious misconduct by a health professional or teacher, it is appropriate for the employee to be afforded the right to legal representation in internal disciplinary hearings. However, in the vast majority of cases, the right to be accompanied at disciplinary and grievance meetings is limited to accompaniment by a work colleague or trade union representative. Employers should realise that the right of accompaniment by a trade union representative applies irrespective of whether or not the employer recognises and negotiates with a trade union regarding its employee relations issues.

Employers are at liberty to extend the right of accompaniment beyond that granted by law. For instance, sometimes employees will request to be accompanied by a friend or family member from outside the organisation. Employers should consider these requests and act reasonably on a case by case basis in deciding upon whether to allow accompaniment by a friend or family member.

Having considered the issue of who may accompany an employee at a disciplinary or grievance hearing, it is important to understand the role that the companion can play in the meeting. Employers can sometimes mistakenly believe that the companion is there simply to provide moral support and act as a witness for the employee but can take no active part in the hearing. However the companion has the right to address the meeting, make representations on behalf of the employee, challenge evidence and sum up the employee’s case. The companion cannot however answer questions on behalf of the employee. When an employer asks a question to the employee who is the subject of the hearing and the question clearly requires to be answered by that person, the employer should insist that the companion does not answer the question on behalf of the employee to whom the question is addressed.

The disciplinary and grievance procedures are designed to assist employers and employees in fairly addressing difficulties that arise in the workplace. The right for the employee to be accompanied at hearings is an important part of the process and it is therefore important that employers understand both who can attend hearings as a companion and what the role of the companion at the hearing is. If an employer is in any doubt, specific advice should be sought prior to the hearing.

This article is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to get in touch.

Recently, I’ve been asked by a number of clients to advise on the calculation of holiday entitlement, particularly for part-time workers. It can be especially difficult for employers to calculate the entitlements of part-time workers to a pro-rata amount of bank and public holidays. This brief article attempts to address some of the most commonly occurring scenarios. 

All employees are entitled to a statutory minimum of 5.6 weeks’ annual leave. This equates to 28 days for a full-time employee working 5 days per week. There is no automatic right to a day’s paid holiday for any particular bank or public holiday unless the contract of employment provides for this. Conversely, an employer is at liberty to fix the days on which employees take annual leave and is at liberty to require employees to work on bank / public holidays. As long as an employee is permitted to take at least 5.6 weeks’ annual leave over the course of the year, the employer will have complied with the statutory requirements.

If the employer’s business closes on a particular bank / public holiday, then the issue of a part-time employee’s right to a day’s annual leave for this day depends on what days they work. If the employer’s business is closed on a day the part time employee normally works, then the employee will be paid for this as a day’s annual leave and one day will be deducted from the employee’s total annual leave amount.

If the employer’s business closes on a day that the employee does not normally work, then the employee is not affected. There is no entitlement to pay for the bank holiday but equally the employee does not have a day’s annual leave deducted from their holiday entitlement.

A working example might be helpful. Suppose two employees job share and each work 2.5 days’ per week. One employee works Monday, Tuesday and Wednesday morning and the other works Wednesday afternoon and all day on Thursday and Friday. The employer’s annual leave year runs from 1^st May to 30^th April. Assuming the statutory minimum 5.6 weeks’ annual leave, each employee has an annual leave entitlement of 14 days. If the employer’s office closes for the May Day Bank Holiday, the employee who works the first half of the week will have the Monday off as a day’s paid holiday and work the Tuesday and Wednesday. This employee will be paid as normal for this week and their remaining annual leave entitlement will be 13 days. The employee who works the second half of the week is unaffected. He will work 2.5 days as normal and will still have 14 days’ annual leave to take in the year.

If an employee is contracted to work a certain number of hours or days per week but the days worked vary from week to week, then there is flexibility. For instance, if an employee works two days per week and the days are not set, then in any week where there is a bank holiday (on which the employer’s business is closed), there is freedom to either (1) have the employee work one day that week and give the bank holiday as a day’s paid holiday to be deducted from the annual leave entitlement or (2) have the employee work two other days that week, with the result that there is no reduction in the amount of annual leave left for the employee to take in the remainder of the year.

This issue can be complex but with some clear drafting of contractual clauses around annual leave entitlement, much of the confusion can be avoided.

This article is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to get in touch.

Parents whose children are due to be born or placed for adoption on or after 5^th April 2015 can avail of new rights in relation to the time they take off work in the  first year of the child’s life or placement for adoption.

There will be no change to the mother / adopter’s entitlement to take 52 weeks’ leave. However, if the mother / adopter wishes to end the period of maternity / adoption leave earlier than 52 weeks from the date of commencement, they have the option of sharing the remainder of their leave entitlement with their partner.

The new system of shared parental leave will replace the current system of additional paternity leave and will offer working couples more flexibility than the current additional paternity leave rights afford. Under the new arrangements, parents can choose to take time off together or divide the time off over the year between them however they see fit, subject to certain limits.

So, what are some of the key factors for employers to be aware of? Firstly, in order to be eligible for shared parental leave, the mother / adopter must serve notice that the maternity / adoption leave period is coming to an end earlier than 52 weeks from the date of commencement. Additionally, to be entitled to Shared Parental Leave, the employee must have 40 weeks’ service at the date of expected child birth or placement for adoption. Further, the employee’s partner with whom parental leave will be shared must satisfy an employment and earnings test. Fortunately employers can rely upon declarations from their employees in relation to eligibility, although they can ask to see birth certificates and to be provided with details of the partner’s employer in order to confirm eligibility.

Employees can take Shared Parental Leave in 3 blocks during the first year of a child’s life or the first year after placement for adoption. Provided that the employee gives at least 8 weeks’ notice of intention to take a block of Shared Parental Leave, the employee is entitled to the leave and the employer cannot refuse it. If the employee wants to split the block of leave up into smaller chunks (e.g. by taking 5 weeks’ Shared Parental Leave by working every other week for 10 weeks), an employer must consider this but is not under any obligation to facilitate this request.

In relation to entitlement to pay during a period of Shared Parental Leave, this will depend upon how many weeks’ maternity or adoption pay is paid to the mother / adopter. Maternity and adoption pay are payable for 39 weeks and so the number of weeks’ pay available to partners sharing parental leave between them will be 39 minus the number of weeks’ statutory maternity pay or statutory adoption pay that has been received by the mother / adopter. The statutory rate for Statutory Shared Parental Pay when it comes into effect in April will be the same as the statutory rates for statutory maternity and adoption pay – £138.18 per week, or 90% of average weekly earnings, whichever is the lower.

Quite what the level of uptake will be remains to be seen. The uptake on additional paternity leave was very low and time will tell if the more flexible shared parental leave is more attractive to parents.

The new arrangements are complicated. It is important that employers have policies in place so that the employer and employee can understand their various rights and responsibilities. In addition to a new shared parental leave policy, it would be important to update paternity leave policies to delete reference to additional paternity leave and to update adoption leave policies to make reference to the amendments regarding eligibility to take adoption leave (the continuity of service requirement is being abolished) and to reflect the fact that Statutory Adoption Pay will be calculated in the same way as Statutory Maternity Pay (i.e. first 6 weeks at 90% of wages, rather than the current 39 weeks at the statutory rate).

In addition, in Northern Ireland, the entitlement to request flexible working arrangements is being expanded from April 2015 and will mirror the arrangements already in place in GB. So, an update to a flexible working policy contained in you HR policy handbook would be important.

For further advice on Shared Parental Leave or the suggested policy updates referred to in this article, please do not hesitate to get in touch.

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

At times during the winter months, adverse weather can cause difficulties for employers. Sometimes employees may be snowed in and unable to get to work or schools may be closed at short notice, leaving employees without childcare and unable to attend work as a result. If the work the employees undertakes is outdoors and weather-dependent, then sometimes snow and ice can make undertaking the duties difficult or impossible.

So, what should an employer do when faced with difficulties caused by severe weather? An employer should have a policy on this and communicate it to employees.

As with many workplace issues, where possible, a degree of flexibility goes a long way towards a positive working relationship between employers and employees. If employees are unable to get to work due to severe weather and it is possible for the employee to work from home that day, then consideration should be given to permitting this. Alternatively, if the employee has annual leave to use, then they should be permitted to use annual leave. If the employee has used up all their annual leave, then unpaid leave may be granted or the employer may permit the employee to make up the lost time at another time.

The same considerations as outlined above should be taken into account if an employee requires time off at the last minute due to a school closure as a result of adverse weather. Employers should bear in mind that employees have a statutory right to reasonable (unpaid) time off to deal with family emergencies, such as an urgent childcare need arising.

So far we have considered the position if the employee cannot make it to work. What happens if the employer’s premises has a burst pipe or the work is weather dependent and the employer has no work for an employee on a particular day as a result of the weather? Unless there is a contractual right to lay employees off without pay, there is no right to do so. It is therefore important that employers reserve the contractual right to lay employees off where there is a temporary cessation in work.

The advice for employers in relation to being prepared for disruption due to adverse weather is to have a policy on the issue, try to be flexible where possible and reserve the right to temporarily lay employees off without pay in the event of the employer having no work for the employee due to adverse weather.

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

2014 was a significant year for employment law. After a period of a couple of years with very few policy updates, we began to see where the Department for Employment and Learning were going with their review of employment law in Northern Ireland.

Probably the biggest employment law topics of 2014 that you may have seen in the media, were as follows:-

-          Zero hours contracts and exclusivity clauses in them

-          Holiday pay (overtime and commission payments should now be included in calculation)

-          Shared parental leave

-          Extension of the pool of people eligible to request flexible working

In April 2015, shared parental leave and the extension of flexible working rights will come to Northern Ireland. In relation to flexible working, currently an employer needs to show that he or she has caring responsibilities in order to be eligible to request flexible working. From April this year, all employees with 26 weeks’ service will be eligible to request flexible working (provided that they have not made a prior request within the previous 12 months).

Shared parental leave will allow parents of babies born after April 2015 to decide how to split their time off during the first year of the child’s life.  An employee taking Shared Parental Leave can split their leave into up to 3 separate blocks instead of taking it all in one go, even if they aren’t sharing the leave with their partner. If both parents are taking leave then they can take their leave at the same time as each other or at different times. An employee must give their employer at least 8 weeks’ notice before a block of leave begins. If the employer agrees, the employee can split a block of leave into shorter periods of at least a week. For example they could work every other week during a 12-week block, using a total of 6 weeks of their shared parental leave. An employer can’t turn down a request for a block of leave if the employee is eligible and gives the right notice. The employer doesn’t have to agree to the employee breaking the block of leave into shorter periods.

In relation to zero hours contracts and the impact of the ruling on holiday pay, there may be further developments. The government may issue regulations prohibiting exclusivity clauses in zero hours contracts to prevent an employer from prohibiting individuals working elsewhere, without any guarantee of receiving a minimum number of hours’ work each week.

By way of brief reminder, the rulings on the calculation of holiday pay found that an employee’s holiday pay should reflect their actual remuneration, including overtime and commission payment, and not just their basic salary. There was some anxiety among employer representatives that there could be a huge number of claims for back-dated holiday pay. The government has set up a task-force to investigate the potential impact of these cases and its report can be expected at some point in 2015.

Other than the issues addressed above, the right to take unpaid parental leave (distinct from the shared parental leave referred to above), will be available to parents up to the child’s 18th birthday. In addition, there will likely be the usual increases in National Minimum Wage and the statutory cap on a week’s pay for the purposes of calculating statutory redundancy entitlements and basic award in unfair dismissal cases.

I look forward to keeping you up to date with developments as the year progresses.

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

With just a few weeks of work left until Christmas, attention is turning to the Christmas party in workplaces up and down the country. Without wanting to dampen the party mood, it would be useful to take a few minutes to consider some matters that may cause an employer difficulty and think about steps to mitigate against any risks.

While the office Christmas party has the potential to be a great time of fun and enjoying each other’s company, it can also be fraught with difficulty for employers. When alcohol is involved, people sometimes act in ways that they would never behave in the workplace. The Christmas party is an extension of the workplace and an employer can be liable for the actions of employees in work Christmas parties.

. If alcohol is permitted, employees should be encouraged to drink in moderation. Employees should be reminded in advance of the party of the organisation’s policies on equal opportunities and anti-harassment. A wise employer will remind employees that any actions that could be deemed to be aggressive or threatening or may constitute harassment of another employee will be dealt with immediately in accordance with the disciplinary procedure and may warrant dismissal.

Employers who take all reasonable steps to ensure that employees are protected from harassment will have a statutory defence to any Tribunal claim brought by an employee who feels that they have been the victim of harassment. It is therefore important to take some time to remind employees of the relevant policies and their specific applicability to the Christmas party. Employees should also be advised that they can be held personally liable for acts of discrimination and/or harassment against other members of staff.

So, from an employment law perspective, the message ahead of the Christmas party is simple – have a good time but make sure you treat everyone with the same dignity and respect that you show from 9am to 5pm Monday to Friday.

Have a great Christmas!

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

It has been widely reported recently that the Equality Commission for Northern Ireland is backing a discrimination case brought against Ashers Bakery. Briefly by way of background, the company is owned and managed by a Christian family. A customer placed an order for the bakery to produce a cake with the slogan “support gay marriage”. The company subsequently cancelled the order, indicating that the message requested went against the religious beliefs of the owners of the business. The Equality Commission assert that the company is guilty of discrimination on the grounds of sexual orientation.

So why is an employment lawyer writing about discrimination in service provision? Well, the legislation prohibiting discrimination in service provision is drafted in largely the same manner as the legislation prohibiting discrimination in the employment field. Several of the statutory provisions prohibiting discrimination on other grounds (e.g. sex, race, religious belief) contain provisions relating to discrimination in both the employment and service provision fields. In relation to sexual orientation, while discrimination in the employment and service provision fields are dealt with in different legislation, the definitions of discrimination are largely the same. Discrimination in the employment field is governed by the Employment Equality (Sexual Orientation) Regulations (NI) 2003 and discrimination in service provision is governed by the Equality Act (Sexual Orientation) Regulations (NI) 2006. The 2006 Regulations apply to the Ashers case and you can view them here.

Definition of discrimination

The 2006 Regulations prohibit direct and indirect discrimination in service provision. Direct discrimination is where an individual is treated less favourably than others on the grounds of his or her sexual orientation. There is an exemption for organisations relating to religion or belief but this exemption does not apply to any organisation whose main purpose is commercial.

Indirect discrimination is where the discriminator applies a “provision, criterion or practice” equally to everyone but which puts people of a certain sexual orientation at a particular disadvantage compared with those of a different orientation. Indirect discrimination can be justified if it can be shown to be “a proportionate means of achieving a legitimate aim” [Regulation 3 (1)(b)]

Applicability of the definitions to the Ashers case

It seems to me that this is not a case of direct discrimination. There is no suggestion, as I understand it, that the bakery refused to serve the customer because of his sexual orientation. The orientation of the customer was not what the bakery took issue with. Rather, it took exception to the message that the customer wanted the bakery to help him promote.

The issue of indirect discrimination is worth some detailed analysis. Regulation 3(1)(b) provides that “a person (“A”) discriminates against another person (“B”) if… A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same sexual orientation as B; but —

(i)                  which puts or would put persons of the same sexual orientation as B at a particular                              disadvantage when compared with other persons;

(ii)                which puts B at a disadvantage; and

(iii)               which A cannot show to be a proportionate means of achieving a legitimate aim…”

 Taking each of the relevant points in turn:-

Provision, criterion or practice applied equally to all

It seems to me that Ashers have adopted a policy or, to use the language of the legislation, a “practice” of not allowing their services to be availed of for the promotion of same-sex marriage. This practice would be applied by Ashers to all prospective customers, irrespective of their sexual orientation but, if the rest of the criteria for indirect discrimination are met, this “practice” will amount to unlawful discrimination.

Disadvantage

We can deal with (i) and (ii) above relating to disadvantage together. Does the bakery’s practice of refusing to provide services that promote same-sex marriage put people of a same-sex orientation at a particular disadvantage, compared with those of an opposite-sex orientation?

Before getting to the heart of this issue, it occurs to me that there are a significant number of people of opposite-sex orientation who are active supporters of same-sex marriage. It would be worth exploring whether there are any statistics showing that the proportion of people of same-sex orientation in favour of same-sex marriage outweighs those of opposite-sex orientation lobbying for the introduction of same-sex marriage. If not, there can be no disadvantage. Assuming that it is the case that the proportion of those of same-sex orientation advocating for same-sex marriage significantly outweighs those of opposite-sex orientation making the same case, let’s look in more detail at the issue of “disadvantage”

Bearing in mind that the issue here relates to support for same-sex marriage in Northern Ireland, what could the disadvantage be? Remember that this case is backed by the Equality Commission. In its guide to Sexual Orientation Discrimination Law in Northern Ireland (available here), the Equality Commission says at the bottom of page 3 “Please also note the Civil Partnership Act 2004 which enables same-sex couples to obtain legal recognition of their relationship by forming a civil partnership. The effect is to make the status of civil partner comparable to that of a spouse.”

The purpose of this article is not to analyse the arguments for and against the introduction of same-sex marriage in Northern Ireland. However, if what the Equality Commission say in their guidance is true, it is difficult to see what particular “disadvantage” is suffered by same-sex couples as a result of same-sex marriage not having been recognised in Northern Ireland law. The logical outworking of this is that if there is no disadvantage caused to same-sex couples by not being recognised as married in law, then no disadvantage could be suffered as a result of not being provided with a service to help promote support for the introduction of same-sex marriage.

So, does the “practice” adopted by Ashers put people of same-sex orientation at a disadvantage? Not according to the Equality Commission’s own guidance on the matter. If this is the case in relation to Regulation 3(1)(b)(i) then it cannot be the case that the individual complainant in this case was put at the disadvantage required by Regulation 3(1)(b)(ii)

Proportionate means of achieving a legitimate aim

If the “disadvantage” point goes against Ashers, then can the bakery show that the refusal to provide this service was a proportionate means of achieving a legitimate aim? I think it is unlikely that the bakery could succeed on this point. The exemption for faith-based organisations contained in Regulation 16 specifically states that the exemption does not apply to an organisation whose sole or main purpose is commercial. Maintaining the integrity of the religious beliefs of the business owners is unlikely to constitute a “legitimate aim” for the purposes of the legislation. I say that it is unlikely but it is not impossible. I feel that, on balance, this point would go against the bakery but it is not beyond the realms of possibility that business owners acting in accordance with their religious convictions could be found to be pursuing “a legitimate aim”. If this is found to be a legitimate aim, then presumably the actions of Ashers in refusing to bake this cake would be a “proportionate means” of achieving that aim.

Extension of the allegations beyond sexual orientation

It is worth highlighting briefly that the Equality Commission appears to have widened the scope of the allegations against the bakery to include allegations of discrimination based on religious belief or political opinion.

The religious belief allegation was a surprise to me because in cases of this type, it is usually the religious beliefs of the person being discriminated against that are relevant and not the religious beliefs of the alleged discriminator. It is possible to be discriminated against on the basis of not holding a certain religious belief but it seems to me that the Equality Commission face an uphill battle arguing that this is a case of religious discrimination. Again, it would be a case of indirect discrimination, with the same definition as outlined above. Did the bakery’s refusal to bake this cake put people not of the Christian faith at a particular disadvantage compared with Christians? It is hard to see how.

In relation to discrimination on the grounds of political opinion, this can extend to matters of public policy, such as the issue of whether same-sex marriage should be legally recognised. The allegation of indirect political opinion discrimination is potentially more problematic for Ashers. If support for same-sex marriage qualifies as a protected political opinion, then the decision to refuse to bake this cake could potentially be deemed to amount to indirect discrimination as it may be deemed to put people who want to lobby for same-sex marriage at a disadvantage.

Concluding comment

I have read a lot of helpful analysis on this case from various sources. This is a highly significant issue and I have tried in this article to outline some of the legal considerations from my perspective. Please feel free to agree or disagree and point out why.

Mark Mason