Discussing UK law. Links: swarb.co.uk | law-index | Acts | Members Image galleries

NI Gay Cake case

Employment and Discrimination Law

NI Gay Cake case

Postby dls » Sun Oct 30, 2016 4:31 pm

I anticipate that I am not alone in having welcomed the NI Court of Appeal decision to the effect that the bakers who refused to bake a cake with a pro Gay slogan on it were unlawfully discriminating against the person who ordered the cake.

It looked obviously correct until

https://soundcloud.com/user345176317/lb ... -cake-case

. . a (wonderful) criticism by Daniel Barnett.

In essence, since the cake order would have been rejected from anyone, gay or not, it was not a discrimination against the customer himself, but a rejection of the message, and therefore not a discrimination against the customer on account of his protected characteristic.

The decision at

http://www.bailii.org/nie/cases/NICA/2016/39.html

was incorrect.
David Swarbrick (Admin) dswarb@gmail.com - 0795 457 9992
User avatar
dls
Site Admin
 
Posts: 11780
Joined: Thu Nov 01, 2012 1:35 pm
Location: Brighouse, West Yorkshire

Re: NI Gay Cake case

Postby b1969 » Mon Oct 31, 2016 10:12 am

That was, however, part of the appellants' case, at 24:

The judge identified a heterosexual person ordering a different cake as the comparator. She changed both the sexual orientation of the person and the message. That was an inappropriate comparator. The true comparator was a heterosexual person seeking the same cake. That comparator would have been treated no differently. There was, therefore, no less favourable treatment. The criterion identified by the learned trial judge at paragraph 42 of her judgment was "support for same-sex marriage". The judge held that this criterion was indissociable from sexual orientation. She stated that there was an exact correspondence between the advantage conferred and the disadvantage imposed. That was clearly wrong. Many heterosexual people support gay marriage and some gay people oppose gay marriage


But this was rejected by the court. The key passage being at 58

The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. The appellants would not have objected to a cake carrying the message "Support Heterosexual Marriage" or indeed "Support Marriage". We accept that it was the use of the word "Gay" in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. That was the answer to the "reason why question" that Shamoon said should be asked. There was an exact correspondence between those of the particular sexual orientation and those in respect of whom the message supported the right to marry. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.


I disagree rather profoundly with the ruling that "the benefit from the message or slogan on the cake could only accrue to gay or bisexual people". In my view society as a whole stands to benefit from a message supporting gay marriage. However, I think the crucial word in the passage is "association" (see respondent's submission at 42 that "The statement was concerned with a class of persons which was uniquely of gay sexual orientation that wanted to have a civilly recognised union. That association was sufficient".

It may still need to be argued further: I understand that there may well be an application to the Supreme Court.
b1969
 
Posts: 287
Joined: Tue Nov 06, 2012 1:48 pm

Re: NI Gay Cake case

Postby Hairyloon » Mon Oct 31, 2016 10:35 am

b1969 wrote:
This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.

In other words, the discrimination was against the community, not against the customer.

It may still need to be argued further: I understand that there may well be an application to the Supreme Court.

The chap on the wireless said that was not possible. He ought to know what he is talking about, but he missed the point you make above.
Perhaps he properly knows his job, which is to make good radio?
Take me to your lizard...
User avatar
Hairyloon
 
Posts: 9304
Joined: Thu Nov 01, 2012 3:12 pm
Location: From there to here and here to there... Funny things are everywhere.

Re: NI Gay Cake case

Postby atticus » Mon Oct 31, 2016 11:00 am

The discrimination was clearly against the customers. Their order was refused.
User avatar
atticus
 
Posts: 18627
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: NI Gay Cake case

Postby shootist » Mon Oct 31, 2016 11:18 am

I gather there is considered to be no further route for an appeal because of the way that N.I. law works (or apparently doesn't if this case is anything to judge by). With absolutely no knowledge of it having any possible application I wondered if a Judicial Review might be used?
"I do not agree with what you say, but I'll defend to the death my right to be offended by it."
User avatar
shootist
 
Posts: 3163
Joined: Sat Aug 10, 2013 9:40 pm

Re: NI Gay Cake case

Postby atticus » Mon Oct 31, 2016 11:22 am

There is a route of appeal from the NI Court of Appeal to the Supreme Court. Whether it is taken in this case is another matter.
User avatar
atticus
 
Posts: 18627
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: NI Gay Cake case

Postby Hairyloon » Mon Oct 31, 2016 11:34 am

atticus wrote:The discrimination was clearly against the customers. Their order was refused.

But that order would have been refused whoever the customers were: that cannot be discrimination.
Take me to your lizard...
User avatar
Hairyloon
 
Posts: 9304
Joined: Thu Nov 01, 2012 3:12 pm
Location: From there to here and here to there... Funny things are everywhere.

Re: NI Gay Cake case

Postby atticus » Mon Oct 31, 2016 11:38 am

I am going to suggest that you read the judgment to understand why that analysis is incorrect. It can be found on http://www.courtsni.gov.uk - go to the Judicial Decisions tab.

You will find that the court held that there had been direct discrimination on grounds of sexual orientation. You will also see that the lower court had also found that there was direct discrimination on grounds of belief (in same sex marriage); the CA of NI does not appear to have found it necessary to rule on that question.
User avatar
atticus
 
Posts: 18627
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: NI Gay Cake case

Postby Hairyloon » Mon Oct 31, 2016 12:46 pm

Take me to your lizard...
User avatar
Hairyloon
 
Posts: 9304
Joined: Thu Nov 01, 2012 3:12 pm
Location: From there to here and here to there... Funny things are everywhere.

Re: NI Gay Cake case

Postby b1969 » Mon Oct 31, 2016 2:53 pm

David linked to the decision itself in the original post.
b1969
 
Posts: 287
Joined: Tue Nov 06, 2012 1:48 pm

Next

Return to Employment

Who is online

Users browsing this forum: No registered users and 1 guest