28 October 2016

The Northern Ireland Court of Appeal has found that a bakery, owned by Christians, directly discriminated against a customer on the ground of sexual orientation by refusing to make a cake with a slogan supporting same-sex marriage.

What happened?

Mr Lee ordered a cake from Ashers Bakery with the message "Support Gay Marriage". The directors of the bakery, Mr and Mrs McArthur, oppose the introduction of same-sex marriage in Northern Ireland as they believe that it is contrary to their religious beliefs. They therefore cancelled the order and refunded Mr Lee.

What did the NI Court of Appeal decide?

The reason the order was cancelled was the refusal to provide a cake supporting the right to marry for those of a particular sexual orientation. The Court found that the benefit of the message on the cake could only apply to gay or bisexual people, and that the bakery would not have objected to a cake saying "Support Heterosexual Marriage". This was, therefore, a case of 'associative discrimination' with the gay and bisexual community, and amounted to direct discrimination.

Mr and Mrs McArthur had sought to argue that their right to freedom of thought, conscience and religion, and their right to freedom of expression, would be infringed if they could not refuse an order for religious reasons. The Court rejected this. It reasoned that, if businesses were free to choose what services to provide to the gay community on the basis of religious belief, the potential for arbitrary abuse would be substantial. It also noted that Mr and Mrs McArthur were not being asked to express personal support or endorsement for the message on the cake.

Who does the decision affect?

This was a decision of the Northern Ireland Court of Appeal concerning the interpretation of legislation applicable in Northern Ireland only.

However, the Equality Act 2010 contains similar prohibitions on discrimination on the grounds of sexual orientation in relation to businesses in England, Scotland and Wales. In addition, the NI Court of Appeal drew heavily on the decision of the UK Supreme Court's decision in Bull v Hall [2013] UKSC 73.

In Bull, the Supreme Court held that hotel owners who refused, on religious grounds, a double room to a gay couple in a civil partnership, had directly discriminated against them on the grounds of their sexual orientation.

The decision in the Ashers Bakery case should therefore serve as a further reminder to all organisations that they must comply with the applicable equality laws in the delivery of goods, services or facilities.

What should organisations do?

  • Ensure business policies and practices do not discriminate – business owners may need to set aside personal beliefs, however strongly held, in the running of their business if those beliefs could cause disadvantage to any protected group of customers. The Ashers Bakery and Bull cases both concerned sexual orientation, but businesses should assess business practices for the impact they could have on any of the protected characteristics.
  • Train staff – many businesses are vigilant in providing training to staff on the equal treatment of their colleagues. However, training should also focus on their obligations vis-à-vis customers and service users. Review, update and ensure that all staff are aware of, relevant equality and diversity policies and procedures.
  • Address complaints – disputes such as these often turn on a point of principle. In appropriate cases, an apology, a change of position, or an attempt to reach a compromise position can resolve the issue. Even where such a concession may not come easily, it may be worthwhile to avoid the potential damage to brand and reputation which might be caused by a public dispute.

For more information or for specific advice, please contact Roger Bull or your usual Burges Salmon contact.

Lee v Ashers Baking Company Limited and Ors (PDF)

Key contact

Roger Bull

Roger Bull Managing Partner

  • Managing Partner 
  • Employment Disputes
  • Strategic HR Projects

Subscribe to news and insight


Our employment lawyers provide expert advice on employment law, helping clients to achieve successful, well-managed businesses.
View expertise