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Businesses Providing Services to Members of the Public Cannot Discriminate on Grounds of Sexual Orientation

Wednesday, 7 August 2013

In the case of Black & Anor v Wilkinson [2013], the claimants, Mr Black and Mr Morgan were refused a room at Mrs Wilkinson’s Bed and Breakfast, on the grounds that their sexual orientation conflicted with her religious beliefs.

The County Court decided that the defendant’s actions were unlawful discrimination against the claimants contrary to the Equality Act (Sexual Orientation) Regulations 2007, a decision recently upheld by the Court of Appeal.

Background to Black & Anor v Wilkinson [2013]

Mrs Wilkinson has been running ‘The Swiss Bed and Breakfast’ since 2007, from her family home which she has owned for the last 15 years. There are 3 rooms available, 2 double rooms and a single. Mrs Wilkinson explained that her guests are invited into her home and treated as members of the family, and the heart of the business is the very personal nature of the relationship between herself and her guests.

Mrs Wilkinson’s beliefs as a Christian are that ‘monogamous heterosexual marriage is the form of partnership uniquely intended for sexual relations between persons and that homosexual sexual relations (as opposed to homosexual orientation) and heterosexual sexual relations outside marriage are wrong. Her policy is to ‘preferably’ prevent couples who are unmarried from staying in the double rooms, which she admits is much harder for heterosexual couples. She has however, turned some away in the past where it has been clear to her they are unmarried or looking to ‘use the room during the day for sex’.

On 11 March 2010, Mr Black contacted Mrs Wilkinson by email and enquired about booking a double room for the night of 19th March. She replied offering Mr Black the Zurich room, one of two double rooms available. The booking was then confirmed by Mr Black who subsequently sent a cheque for the £30 deposit. When Mr Black and Mr Morgan arrived in the evening of the 19th March, Mrs Wilkinson noted they were both men, and said there was a problem as they had booked a double room, and she was uncomfortable with ‘the idea of two men sharing a bed.’ Mrs Wilkinson refunded their deposit and they left.

County Court

In the Slough County Court it was argued by Mr Black and Mr Morgan that Mrs Wilkinson had breached her statutory duty under Regulation 20 of the Equality Act (Sexual Orientation) Regulations 2007, by discriminating against them by refusing to provide them with the double room. As a person providing services to the public, it was unlawful for Mrs Wilkinson to refuse to provide those services based on the sexual orientation of both Mr Black and Mr Morgan, in line with Regulation 4.

Mrs Wilkinson argued that as the Swiss Bed and Breakfast was also her family home, it fell outside the scope of Regulation 4, and that she had a right to exercise her beliefs under Article 9 of the European Convention of Human Rights. The court decided against her, finding that she had treated them less favourably, following the ruling in Bull & Bull v Hall & Preddy.

Court of Appeal

On Appeal, the Court agreed with the findings of the County Court and concluded that it had been right to follow the precedent set in Preddy, as there had been direct discrimination against the couple.

However, the Supreme Court is to hear an appeal of Preddy in October, which if successful would undermine the decision in Black. This is unlikely to happen though, as the Court of Appeal explained that even if the County Court had been wrong to follow Preddy, the case also exhibited unjustified indirect discrimination, meaning the outcome of the case would likely remain the same, but for different reasons.

For more information about this case or specialist advice regarding customer policies contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.

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