Court of Appeal upholds gay cake case discrimination ruling

The cake in question would have featured Sesame Street's Bert and ErnieEverett Collection/REX/Shutterstock
The cake in question would have featured Sesame Street's Bert and Ernie
Everett Collection/REX/Shutterstock

The Court of Appeal in Northern Ireland has upheld a decision that Ashers bakery in County Antrim had directly discriminated against a customer on the grounds of sexual orientation by refusing to bake a cake supporting same-sex marriage.

In 2014, Gareth Lee placed an order at the bakery for a customized cake featuring a colour picture of Bert and Ernie with the caption “Support Gay Marriage”. Days later, after discussion within the family firm, Lee was told that the order could not be fulfilled as the bakery was a “Christian business” and it should not have accepted the order.

The order was cancelled because of the religious beliefs of Colin and Karen McArthur, the directors of the bakery, who said they were opposed to a change in the law regarding gay marriage, which they regard as sinful. 

Lee was given a refund and he was able to secure a similar cake from another outlet in time for the event.

The McArthurs and their bakery business appealed a 2015 ruling that found that they had directly discriminated against Lee on the grounds of sexual orientation.

Counsel for the appellants submitted that, in order to establish direct discrimination, it was necessary to establish some protected personal characteristic and that such a characteristic could not be established by a difference in treatment in respect of a message on a cake.

But the appeal court judges did not accept this. In a summary of the judgment, they said: “The appellants would not have objected to a cake carrying the message ‘Support Heterosexual Marriage’ or indeed ‘Support Marriage’.  We accept that it was the use of the word ‘gay’ in the context of the message which prevented the order from being fulfilled.

“The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.”

The “gay cake case” is one of a number of legal cases examining the clash between the right to hold religious beliefs and protection against sexual orientation discrimination.

While not an employment case, many cases in this controversial area are relevant for employers. The trend has been for courts and tribunals to find that employers are entitled to take steps to ensure that services are delivered on an equal opportunities basis, even if these steps conflict with an employee’s religious beliefs.

The Court of Appeal further found that the relevant legislation is not incompatible with articles of the European Convention on Human Rights.

A full report on the judgment in Lee v Ashers Baking Co Ltd and others, including the implications for employers, is available on XpertHR.

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