Seven years after the Christian owners of Ashers Baking Company refused Gareth Lee’s order for a cake featuring a slogan supporting same-sex marriage, the European Court of Human Rights (‘ECHR’) has rejected his challenge to the Supreme Court’s 2018 rejection of his discrimination claim.
At first glance, this seemed to be a case whereby the court was going to have to choose between competing protected characteristics; being sexual orientation and religious belief. Whilst the Supreme Court masterfully navigated around such a showdown, it is little wonder the case reached the most senior courts in the land.
Where the case began
With Gareth Lee supported by Northern Ireland’s Equality Commission, the case first went before the County Court in 2015; the Court ruling that the company, through its owners, had directly discriminated against Mr. Lee on the grounds of his sexual orientation and religious belief or political opinion (his support for same-sex marriage in the context of the ongoing political debate in Northern Ireland at the time). It was held that, whilst the company owners were entitled to hold their genuine and deeply held religious views, they could not manifest them in the commercial sphere if this would be contrary to the rights of others. Mr. Lee was awarded £500 by way of damages.
Appealing the decision
The company appealed to the Court of Appeal and lost.
The company then appealed to the Supreme Court, and this time it won by a unanimous decision.
In assessing the company’s actions, the Supreme Court ruled that “their objection was to the message on the cake, not to the personal characteristics of Mr. Lee”; a decision that avoided the court having to identify one protected characteristic as being more important than the other. In other words, the company would have refused to provide a cake bearing a message in support of same-sex marriage no matter who was ordering it.
European Court of Human Rights
Mr. Lee took the case to the ECHR alleging failure by the Supreme Court to give appropriate weight to his rights under the European Convention on Human Rights (thereby putting the case against the United Kingdom rather than the company). However, the ECHR ruled that Mr. Lee had not expressly invoked his human rights in the previous (domestic) proceedings and therefore his challenge was deemed inadmissible.
Whilst this may now be an end to the long-running, and ineloquently named, ‘gay cake’ case, it is a salient reminder that defending a discrimination claim is no piece of cake – the company initially lost, twice. Discrimination cases are notoriously complex and expensive to run and, even when successfully defended, they still absorb significant time and money. The bitter cherry on the cake is that recovering legal costs in the employment tribunal is the exception rather than the rule.
Employers also need to be aware that they can be held vicariously liable for the acts of third parties. This means that employers need to be careful of the actions of third parties, e.g. employees, customers, suppliers etc.
If a reader was to take away just one slice of information from this situation, it should be that when dealing with issues related to protected characteristics, advice should be taken early.