Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Gay cake’ ruling provides lessons for employment law

On 10 October 2018, arguably one of the most highly anticipated court judgments of our time – in the so-called the ‘gay cake’ case – was declared by the Supreme Court.

The case began when Irish bakery Ashers refused to bake a cake for Mr Lee, a customer, because the cake he wanted had the words “support gay marriage” on it, which was against the bakery owner’s Christian beliefs. Mr Lee then brought a claim against the Ashers owners and the bakery itself for direct and indirect discrimination on the grounds of sexual orientation.

The case worked its way up through the courts until it was heard on appeal at the Supreme Court. The judges unanimously held that the bakery did not refuse to carry out the order because of Mr Lee’s actual or perceived sexual orientation, but that the objection was to the message on the cake, not any personal characteristics of the customer, or anyone with whom he was associated. The Court therefore judged the bakery would have acted in the same way had Mr Lee been heterosexual. 

In their decision, the judges gave weight to the European Convention of Human Rights – specifically Article 9 (freedom of religious beliefs) and Article 10 (freedom of expression) – by saying the bakery owners were exercising their right to freedom of expression.

Lady Hale, in her judgment, said the bakers did not refuse to fulfil the customer’s order because of his sexual orientation but because it would have meant supplying “a cake iced with a message with which they profoundly disagreed”.

It was determined that, while the bakery couldn’t refuse to supply Mr Lee with a cake because of his beliefs or sexual orientation, they equally didn’t have to provide him with one bearing a message with which they profoundly disagreed. They were therefore invoking their right to not express a particular opinion, and as a consequence there was no discrimination on the grounds of political opinion.

Although this case does not concern an employment dispute, the issue regarding discrimination on the grounds of sexual orientation is relevant to employment law.

Legal opinion

This Supreme Court ruling is surprising and highly controversial. Many believe it will open the floodgates to claims where there is a conflict between sexual orientation and religious beliefs. There’s a very fine line between objecting to the message and objecting to the person giving it, and proving the difference between the two is no easy task. 

For your business, having formal company policies in place for combating possible discriminatory claims will help you in the long run. Prevention is always better than reaction. And as ever, if in doubt, take legal advice.


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