Key equality case highlights future court treatment of protected characteristics
The Supreme Court in the case of Bull v Hall was asked to decide on a refusal to provide goods and services to a gay couple and the potential conflict with the providers’ own religious rights. It is a fascinating decision that provides some clarity on competing protected characteristics under the Equality Act 2010, which will shape how courts and tribunals tackle apparent conflicts of protected characteristics.
The majority of the Supreme Court held that the policy of Mr and Mrs Bull to only let double bedrooms in their hotel to married heterosexual couples because of their devout Christian belief was direct discrimination under the Equality Act (Sexual Orientation) regulations 2007, now embodied within the Equality Act 2010. In the lead judgment Lady Hale said civil partnership was akin to marriage, which is reinforced by regulation 3(4) of the regulations which provide that civil partnership and marriage are not to be treated as materially different. She particularly viewed the difference between marriage and civil partnership as being “indissociable” from the sexual orientation of those that enter it, which led to the conclusion that the treatment of Messrs Preddy and Hall was direct discrimination.
The minority came to a different conclusion, as the policy treated unmarried heterosexual couples in the same way so they said was not direct discrimination. However unanimously the court found that if the treatment of Messrs Hall and Preddy was indirect discrimination, that was not justified. The Supreme Court also assessed the competing rights of Mr and Mrs Bull under Article 9(1) of the European Convention of Human Rights to manifest their religion, and Messrs Preddy and Hall’s under Articles 8 and 14 to respect for their private lives without unjustified discrimination on grounds of their sexual orientation. Under article 9(2) the Bulls’ right to manifest their religion can be limited where it is necessary in a democratic society for the protection of the rights and freedoms of others. The Supreme Court held that any court should be slow to allow providers of good and services to discriminate against gay men relying upon the limitation in Article 9(2).
The important distinction of course is that direct discrimination on the grounds of sexual orientation can never be justified whereas indirect discrimination can be. As can be seen from the judgment, where characteristics protected by equality legislation and human rights legislation conflict, employers service-providers, and ultimately courts, may face a challenging balancing act. For employers and service-providers, this is a reminder that if any policy, rule or procedure may impact adversely upon a group with a protected characteristic you need to carefully consider the impact of your drafting and what is the least discriminatory way of drafting and implementing it.
What comes out most strongly from this Judgment is reinforcement of the message that no individual may insist on manifesting their religious beliefs, whether in a commercial or employment context, where that may have an adverse impact on others because of their protected characteristic. The Supreme Court carefully emphasised that services should be provided to all irrespective of sexual orientation, or indeed religion, and without limit due to the provider’s own views.
Phil Allen is a partner and Sean Walsh a solicitor in the employment team at Weightmans