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Equality: Sexual orientation – Let Everyone Eat Cake (or more specifically, order it)!

Posted in Employment, DQ News, Dispute Resolution on 6th March 2018

Equality: Sexual orientation – Let Everyone Eat Cake (or more specifically, order it)!

Being a little island in the middle of the Irish Sea, you could be forgiven for thinking the Isle of Man would inevitably be behind the times, however it’s a pleasant surprise how often the Isle of Man is ahead of the game, and sexual orientation discrimination is no exception. Equality: Sexual orientation – Let Everyone Eat Cake (or more specifically, order it)!

In fact, legislation legalising same-sex marriage came into force in the Isle of Man on 22 July 2016, which put the Island ahead of the UK by also allowing civil partnerships between opposite sex couples which is still not permitted in the UK.

Prior even to the inception of the Equality Act 2017, Isle of Man workers were protected from sexual orientation discrimination by s127 of the Employment Act 2006. This section provides that if an employee is dismissed on the ground of his or her sexual orientation then the dismissal will be unfair. For the purposes of s127, “sexual orientation” means a sexual orientation towards persons of the same sex, persons of the opposite sex, or both.

The Technical Bit

Under the Equality Act 2017, the protected characteristic of sexual orientation goes further than the Employment Act 2006, being defined as:

“a person’s inherent romantic or sexual attraction towards —

(a) persons of the same sex;
(b) persons of the opposite sex; or
(c) persons of either sex.”

The protection also exists for those who are not romantically or sexually attracted to persons of either sex, which is also considered a sexual orientation. 

In relation to the protected characteristic of sexual orientation, a reference to a person who has a particular protected characteristic is a reference to a person who is of a particular sexual orientation and a reference to persons who share a protected characteristic is a reference to persons who are of the same sexual orientation.

Did Someone Say Cake?

A high profile case on the topic of sexual orientation discrimination is the Northern Irish case of Lee v Ashers Baking Company Limited, Colin McArthur and Karen McArthur [2016] NICA 39.

Gareth Lee is a gay man who is involved with the organisation called QueerSpace, a voluntary organisation for the lesbian, gay, bisexual and transgender community in Northern Ireland. Colin and Karen McArthur are Directors of Ashers Baking Company Limited (“Ashers”) and hold Christian beliefs.

The background to the case was an ongoing discussion in Northern Ireland’s media as to whether the Assembly should introduce legislation allowing same-sex couples to marry, similar to that in England, Scotland and Wales.

Ashers offered a customised cake service, whereby they would scan and print a logo onto a cake for the customer. Mr Lee went to Ashers to enquire about ordering a cake and was shown a leaflet which showed the sort of cakes on offer. Mr Lee explained he was from a small voluntary group and wanted a cake with a logo on it. Mrs McArthur told him if he brought in the logo they could scan it onto the cake. There was no further discussion about the logo or its wording. 

Fast forward a few days and Mr Lee went back to Ashers and placed an order with Mrs McArthur for a customised cake for a private event to mark the end of Northern Ireland Anti-Homophobic Week. Mr Lee told Mrs McArthur the details of the cake he wanted and gave Mr McArthur an A4 sheet with a colour picture of “Bert and Ernie” (QueerSpace’s logo) with the caption “Support Gay Marriage”.

Following discussion between Mr and Mrs McArthur, they called Mr Lee to tell him they couldn’t fulfil the order as they ran a “Christian business” and the order should never have been accepted. Mr Lee was given a full refund and ordered a similar cake from another bakery in time for the event.

The Equality Commission for Northern Ireland tried to resolve the matter by asking the McArthurs to accept there had been a breach of the equality laws and pay a modest sum in damages to Mr Lee but the matter could not be resolved and Mr Lee issued proceedings.

Weighing up Competing Rights

This case is particularly interesting as it deals with competing interests in terms of protected characteristics. The McArthurs benefit from the basic human rights of freedom of thought, conscience and religion and freedom of expression. Mr Lee benefits from the right not to be discriminated against because of his sexual orientation. What happens when those rights collide in a cake catastrophe?

Well the Court didn’t have much trouble in untangling these competing rights. Whilst the McArthurs did benefit from freedom of thought, conscience and religion and freedom of expression, this specifically does not apply in circumstances where to exercise that freedom would cause discrimination against another person or persons who hold a characteristic protected by law, in this case, sexual orientation.

The reason for the refusal to fulfil the order was found to be a refusal to promote the right of marriage for those of a certain sexual orientation, in this case, gay or bisexual people. The Court found that Ashers would not have refused to provide a cake that said “Support heterosexual marriage” and that the “benefit” of the slogan on the cake originally ordered could only apply to gay or bisexual people, therefore the refusal to fulfil the order was associative discrimination against that community of people (the gay or bisexual community) which amounted to direct discrimination.

Other key factors that the Court considered were the great potential for arbitrary abuse if businesses were free to refuse to provide services to certain members of society on the basis of religious beliefs, and the fact that the McArthurs were not being asked to personally promote or support gay marriage in providing the service of baking the cake.

The Final Course

The McArthurs appealed the decision, but the Court of Appeal upheld the decision at first instance. We’ll have to wait and see what the final outcome is in respect of the Ashers case as it is understood that the bakery is further appealing the decision to the Supreme Court, to be heard on 30 April 2018.

Equality and Diversity in the Manx Workplace

As part of promoting a culture of equality and diversity, Island businesses may want to consider availing of targeted eLearning, aimed at educating employees on the key concepts of the law on diversity and inclusion, with a view to reducing the risk of work place issues whilst also strengthening an employers’ defences to tribunal claims and, as reported by Deloitte in 2012, boosting business performance overall.

Further information on DQ’s Equality Online training initiative in association with Legal-Island can be found here.

To obtain free trial access to review the Isle of Man diversity & inclusion online module on behalf of your organisation or discuss your requirements further, please contact employment@dq.im.

By Jessica McManus
Associate

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