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Refusal of Gay Cake Order May Lead to Sticky Legal Problems

Tuesday, 9 September 2014

Businesses must be aware of their responsibilities to avoid discrimination in all its forms whether they are dealing with employees, customers, suppliers or other stakeholders.

A cake manufacturing business in Northern Ireland is the latest business to end up attracting both legal threats and news headlines for allegedly discriminatory practices towards customers.

Background to the Gay Cake Dispute

Ashers Baking Company, a Christian-run bakery, received a customer's order for a cake to mark the International Day Against Homophobia and Transphobia. The customer wanted the cake to feature Bert and Ernie, two Sesame Street puppets, and a logo of Queerspace, a Belfast-based campaign group. The customer was a gay rights activist.

Upon receipt of the order at the head office of the bakery, the order was refused and a full refund offered to the customer on the ground that it was at odds with the owners’ Christian beliefs. Six weeks later, they received a letter from the Equality Commission Northern Ireland, alleging discrimination against the customer based on his sexual orientation. The bakery was given seven days to respond on how it would recompense the customer or face legal prosecution.

Anti-Discrimination Legislation

The key legislation surrounding the case is the Equality Act (Sexual Orientation) Regulations (NI) 2006 which prohibits discrimination on grounds of sexual orientation.

As Christians, the bakery was of the opinion that it should be allowed to follow the owners’ Christian beliefs and principles in the daily operations of their business. However, this opinion contradicts the provision of the law on which the Commission based its letter.

In the event of no response from the bakery or failure to comply with any proposed directive of the Commission, the likelihood of litigation is high. Legal precedents in Northern Ireland clearly indicate that the Commission has been successful in the past in prosecuting cases alleging discrimination on grounds of sexual orientation.

Complying with Anti-Discrimination Laws as a Business

As a service provider, the bakery ought to be conversant with laws regulating its business, particularly in light of recent events in the rest of the UK regarding discrimination by businesses on the basis of religious principles. Businesses that share similar views or are likely to contravene the legislation are advised to amend their policies to avert prosecution.

Service providers cannot choose their customers where they hold themselves out to serve the public unless they are actual religious organisations.

Interestingly, litigation is often not the first recourse of the Equality Commission Northern Ireland as it has the power to negotiate settlement in a dispute. Where an undertaking is signed by the service provider or the offending policies and acts are amended, the complaints may be dropped. This would be in line with English cases already settled on similar grounds.

A last resort appears to be in the horizon in the European Court of Human Rights (ECHR) in Strasbourg where a case has been filed by the owners of a B&B in Llandrindod Wells, Wales to determine whether equality laws supersede Christian beliefs and human rights. According to the B&B owners, the issue of determination is whether they have a right to their Christian beliefs in their home and business.

Businesses are advised to avoid discrimination even on grounds of religious principle, pending the outcome of the ECHR hearing.

For specialist advice contact Peter Gourri today by email or telephone 0207 611 4848.

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