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