Discrimination by Association

22 Mar 2017

The case of a Northern Irish bakery’s refusal to fulfil an order for a cake bearing the slogan “Support Gay Marriage” has been widely publicised in the news since 2015, and litigation has been ongoing ever since.

As this was a case about potential discrimination against a customer, rather than a worker, it was originally heard in the County Court. But the same legislation applied as would have applied to a discrimination case in the Employment Tribunal, so it is an interesting case from an employment law point of view. In the rest of the UK, the relevant legislation would have been the Equality Act 2010, but this does not extend to Northern Ireland, which has its own, very similar, regulations on discrimination[1].

The original County Court decision was that the bakery had directly discriminated against the customer because of his sexual orientation.

The matter was appealed by the bakery to the Court of Appeal in Northern Ireland[2]. Here it was held that although the correct decision had been reached, it was for the wrong reasons. The Court of Appeal found that this was a case of associative discrimination, rather than direct discrimination. Mr Lee had been discriminated against not because he was gay, but because of his association with the gay community. If a straight supporter of gay marriage had ordered the cake and been refused, then he or she would also have been able to bring a claim of associative discrimination.

The case is likely to be appealed to the Supreme Court, which may pin down this issue of associative discrimination that is usually run when the claimant does not themselves have a protected characteristic, but is connected to somebody who does. For example, the parent of a disabled child who is dismissed for taking time off work to care for their child may be able to claim associative disability discrimination. If this decision is confirmed in the Supreme Court, then we can expect to see a sharp increase in the number of associative discrimination claims.

This is the latest in a number of cases where protection of sexual orientation has conflicted with the protected characteristic of religion (the bakery owners cited their Christian beliefs). It continued the trend of decisions in such cases, which found a sincere religious belief will not exempt an employer or a provider of services from complying with the equality laws.  

[1] Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006

[2] Lee v McArthur and Ashers Baking Company Limited [2016] NICA 39

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