Lee v Ashers Baking Company ‘The Gay Cake Case’: whose rights prevail?

The decision in Lee v Ashers Naking Co Ltd and others, which has become known as the “gay cake case”, follows a string of cases examining the clash between the right to hold religious beliefs and protection against sexual orientation discrimination.


In this particular case a customer placed an order for a cake requesting that his own design appeared on the cake, as a tribute marking the end of anti-homophobia week in Northern Ireland.  The order was initially accepted without any comment. Some days later, an employee from the bakery notified him that the order could not be fulfilled on the basis that they are a Christian business and, in hindsight, should not have taken the order. The bakery apologised and arranged for a refund.  


The customer took the case to court where legal arguments stemmed from the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and/or the Fair Employment and Treatment (Northern Ireland) Order 1998 on whether there was any direct or indirect discrimination on sexual orientation, political opinion or religious beliefs. Further arguments focussed on harassment. 


This case highlights the fundamental importance of the protected rights of religious belief and sexual orientation, both of which are protected through the European Convention on Human Rights, as well as other equality and anti-discrimination laws. 


The question is: which right prevails in a conflict?


Judge Brownlie was very clear in her findings: the defendants were entitled to continue to hold their genuine and deeply held religious beliefs and to manifest them. However, they had to apply these beliefs in accordance with the law. Failure to accept the cake order would amount to discrimination and was contrary to the rights allowed for by way of the 2006 Regulations.


The key issue in any discrimination case is whether or not the action causing the discrimination was because of a protected characteristic or right. That is to say that, in the case of Lee v Ashers if the refusal to make the cake was on the basis that they were, for example, too busy to take any more orders, there would not be a discrimination issue. The fact was that the refusal to make the cake was because of the customer’s sexuality and, therefore, amounted to discrimination.


Why is this case of concern to employers?


The reason this case may be relevant to employers and temporary work agencies is that by way of anti-discrimination and equality laws in both England and Northern Ireland, employers can be held liable for acts of discrimination committed by employees during the course of employment and a number of leading cases in this controversial area are employment-related.


The trend has been for courts and tribunals to find that employers are entitled to take steps to ensure that services are delivered on an equal opportunities basis, even if these steps conflict with an employee’s religious beliefs. 


Has the law gone too far?


These cases, whereby there is a clear conflict between one person’s beliefs or way of life over another are said to cause controversy and are often hyped up by the media.  The supposition is that human rights and equality law has gone too far. These laws, however, are not seeking to prevent religious beliefs or practices but they seek to impose controls so that every person is entitled to have their protected rights and characteristics exactly that – protected.  We operate in a commercial world, and, as intended, where businesses are open to the public on a commercial basis, they have to accept the public at large and as it is constituted. Employers take on a responsibility for their employees’ actions.  Where employees act beyond the law, during their employment, the liability extends to the employer.


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