The refusal of a bakery to produce a cake amounts to direct discrimination?

20 May, 2015
by: Cripps Pemberton Greenish

Although not an employment case, the commentary which made the news yesterday regarding the ‘gay cake’ provides an interesting example of what constitutes direct discrimination.

The background of Lee –v- Ashers Baking Co Ltd & others involves the Ashers Bakery (“Ashers”) in County Antrim which produces cakes to order for customers. Mr Gareth Lee ordered a cake from Ashers to commemorate the end of Northern-Ireland’s anti-homophobia week to take to a private event he was attending. Mr Lee asked that the cake have graphics printed on the top with his required design which included a pro-gay marriage slogan and is reported to have included pictures of Bert and Ernie. Ashers accepted Mr Lee’s order for the cake which he paid for and was provided with a receipt.

A few days later, Mr Lee received a call from Ashers who explained that they were not able to fulfil his order as Ashers was a Christian business and in hindsight should not have taken the order, a refund was then arranged. Mr Lee, with the support of the Equality Commission for Northern Ireland, lodged a claim at the County Court on the grounds that Ashers should not be permitted to refuse service on the grounds of sexual orientation. Ashers defended the claim on the basis that the issue was with the cake, not the person who ordered it.

In the judgment which was handed down yesterday, Judge Brownlie found that as a business, Ashers was not exempt from discrimination law on the basis that it was conducting a business for profit and was not a religious group. Ashers therefore directly discriminated against Mr Lee on the grounds of his sexual orientation as well as his political beliefs. The parties agreed damages of £500 in advance which Mr Lee’s lawyer has confirmed will be donated to charity.

This case highlights the importance for businesses to provide regular training on equal opportunities to their staff members to ensure, as far as possible, that they do not discriminate against their customers.