Ashers Baking Company, based in County Antrim, was taken to court by a gay rights activist, assisted by Northern Ireland's Equality Commission. Ashers lost the initial case and the subsequent appeal, but on 10 October 2018 the bakery won its final appeal at the Supreme Court (Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland) [2018] UKSC 49)

This was the last instalment of a long running case, which started in 2014 after the bakery refused to produce a cake iced with two cartoon characters and the words “support gay marriage” on the basis that to do so would compromise the religious beliefs of the owners.

The customer, a gay rights activist who was backed by the Equality Commission for Northern Ireland in bringing his case, sued the bakery for discrimination on the grounds of sexual orientation and political beliefs and won. The bakery, which always insisted the objection was to the message on the cake, not the customer who had been served, appealed and lost.

At the Supreme Court hearing, the substantive question considered was whether it is unlawful discrimination, either on grounds of sexual orientation, or on grounds of religious belief or political opinion, for a bakery to refuse to supply a cake iced with the message “Support Gay Marriage” because of the sincere religious belief of its owners that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God. If the prima facie answer to either question was “yes”, then the court would need to consider the questions which arise as to the rights of the bakery and its owners to freedom of religion and freedom of expression, under articles 9 and 10 of the European Convention on Human Rights, and what difference, if any, those rights might make to that prima facie answer.

The five judges of the Supreme Court unanimously overturned the decision, ruling that the refusal was not on the grounds of the customer’s sexual orientation as any customer requesting a cake with those words would have been refused.

This judgement adds to the confusing set of cases which surrounds the law relating to discrimination, to which employers must have consideration.There are nine protected characteristics: age, sex, race, disability, religion or belief, sexual orientation, gender reassignment, pregnancy or maternity and marriage or civil partnership. It is against the law to make an unjust or prejudicial distinction in the treatment of any individual or group because of these characteristics and that treatment is recognised in one of four main forms:

direct discrimination, indirect discrimination,harassment and victimisation.

In the case of Lee v Ashers Baking Company, in the first instance the County Court in Northern Ireland found that the bakery had directly discriminated against Mr Lee because of his sexual orientation, which the Northern Ireland Court of Appeal later dismissed whilst still upholding that the refusal of service was direct discrimination, only this time ruling that it was on an associative basis (that Mr Lee was discriminated against because of his association with the gay community, not because he himself is gay). The Supreme Court disagreed, ruling that the bakery’s refusal was based solely on their objection to the cake’s message and not on Mr Lee’s sexual orientation; therefore, there was no discrimination on those grounds. The Court accepted that the bakery would have still served Mr Lee or any other homosexual individual a different cake and would not have baked a cake with the message “Support Gay Marriage” for any heterosexual individual either. The bakery had invoked their right to not express a particular opinion and there was thus no discrimination on the grounds of political opinion either.

Businesses will need to be very careful when offering (or refusing) services or actions in relation to protected characteristics, or because of protected characteristics, being clear whether they are objecting to the message or messenger.

It seems likely that more cases will be defended on the basis of article 9 and article 10 rights being used as justification for actions which may otherwise be deemed discriminatory and employers will need to be wary of this defence. It should be remembered though that the Human Rights Act does not give people the entitlement to say and do anything they want, no matter how harmful. In this very specific case, one party felt they were being asked to do something against their will, refusing to, and using the Human Rights Act as a shield, as opposed to actively committing a discriminatory action or saying something derogatory.

Employers should investigate any claims of discrimination carefully, seriously and thoroughly. Full statements should be taken, detailing the circumstances surrounding the discrimination, and any CCTV footage should be reviewed. Employers should remember to act promptly and respectfully in order to prevent any claim being brought.