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'Gay Cake' Leaves Bitter Taste For Disputing Parties

Tuesday, 30 December 2014

The ‘Gay Cake’ row that erupted earlier in 2014 has rumbled on unresolved for some time. The Equality Commission in Northern Ireland, which oversees equality and discrimination law, looks set to litigate the case in order to clarify to what extent businesses can refuse service to customers on certain grounds.

The case is nuanced in that the business involved apparently does not refuse to serve customers on particular grounds but refused to produce goods (a cake) which promoted an event which contradicted the beliefs of its owners. It remains to be seen if the court considers this difference material for the purposes of equality legislation.

Background to the row

In May 2014, a Christian run family bakery refused to make a cake printed with the words 'support gay marriage'. The cake was ordered by a gay rights activist for an International Day Against Homophobia and Transphobia event. Mr Daniel McArthur, the owner of Ashers Baking Company, refused to accept the order because it was 'at odds' with his Christian beliefs. He stated that he should not have to promote a cause he does not believe in.

The Equality Commission wrote to Ashers Baking Company to inform them that they would be seeking compensation on the grounds of discrimination. Since Ashers refused to pay the compensation, the Commission is taking the Baking Company to court. In the most recent development Fr Tim Bartlett, who was on the panel for this year's Belfast pride event, said that he would withdraw engagement with groups in the gay community until the right of all people to freedom of conscience was respected by the Equality Commission and the gay community.

Complying with equality legislation

The Equality Commission of Northern Ireland stated that it would prefer not to have to litigate but the case "raises issues of public importance regarding the extent to which suppliers of goods and services can refuse service on grounds of sexual orientation, religious belief and political opinion".

As noted above, the outcome on the particular facts of this case remains to be seen but it is important that businesses aim to comply with equality legislation when it comes to the treatment of customers. Part 3 of the Equality Act 2010 deals with discrimination in the provision of services and exercise of public functions. It is based on the principle that people with the protected characteristics set out in the Act should not be discriminated against when using any service provided publicly or privately, whether that service is for payment or not. The protected characteristics under Part 3 are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

It should be noted that the Act makes employers legally responsible for acts of discrimination, harassment or victimisation committed by their employees in the course of employment. Employers are also liable for such acts committed by their agents while acting under their authority. It does not matter whether the employer knows about or approves of the acts of their employee or agents. The phrase ‘in the course of employment’ has a wide meaning: employees who commit an unlawful act against customers and service users, members, guests or associates of an association, while carrying out duties or while providing or delivering services, will usually be regarded as acting in the course of their employment.

For specialist advice about managing discrimination issues in a commercial environment contact Peter Gourri today by email or telephone 0207 611 4848.

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