Labour & European Law Review Weekly Issue 332 14 August 2013
The law says that people who provide goods, facilities or services to the public cannot discriminate on the grounds of sexual orientation by refusing to provide those services. In Black and Morgan v Wilkinson, the Court of Appeal found that although people who run commercial ventures have the right to hold religious views, they must operate their business in such a way that it does not discriminate on those grounds.
Mr Black, a homosexual man in a same sex relationship with Mr Morgan, e-mailed the bed and breakfast run by Mrs Wilkinson on 11 March 2010 to enquire about booking a double room for 19 March. After she confirmed availability, Mr Black sent a cheque for the deposit.
However, when they turned up, Mrs Wilkinson made clear that she would not accommodate them because, as a Christian, she did not like the idea of two men sharing a bed and generally tried to restrict the use of double rooms to married, heterosexual couples. As she had no separate rooms available, she refunded their deposit and the two men left.
The couple brought a claim for direct and indirect discrimination under the Equality Act (Sexual Orientation) Regulations 2007 (now the Equality Act 2010). Mrs Wilkinson argued, amongst other things, that excluding homosexual couples from the double room was justified as a proportionate means of fulfilling her legitimate aim of "holding a genuine and protected legitimate religious belief” under article 9 (the right to freedom of religion) of the European Convention of Human Rights.
County Court decision
The county court judge disagreed. Relying on the decision of the Court of Appeal in Bull and Bull v Hall and Preddy (weekly LELR 262), the judge held that Mr Black and Mr Morgan had been treated less favourably than heterosexual couples because they were refused a double bedroom. As homosexual couples could not marry, they could never comply with the requirement. The two men had therefore been subject to both direct and indirect discrimination.
Nor was there any breach of Mrs Wilkinson’s rights under article 9. The Court found that there had to be a balance between her right to hold her religious views while requiring her, as someone who ran a commercial venture, to operate in a way which did not discriminate against homosexuals.
Court of Appeal decision
The Court of Appeal found (albeit reluctantly) that the judge was right to follow Preddy and hold that there had been unlawful direct discrimination. But in the Court’s view, this was a case of indirect, rather than direct, discrimination as Mrs Wilkinson’s policy put homosexual couples at a disadvantage on the ground of their sexual orientation, when compared with heterosexual couples.
But could it be justified? The Court considered whether, on the facts of the case, there was any reason to give Mr Black and Mr Morgan’s right to respect for their private life more weight than Mrs Wilkinson’s right to manifest her religious belief.
It found that it should, for a number of reasons. Firstly, because the 2007 regulations specifically provided for certain religious exemptions, but these did not include the situation in which Mrs Wilkinson found herself.
It also held that she had not discharged the burden on her to show that the restriction on her right to manifest her religious belief would cause her serious economic harm. As a result, the Court said that she could not point to specific facts showing how the regulations had failed to strike a fair balance between her right to manifest her religious belief and the rights of the two men not to suffer discrimination.
This meant that the balance came down in favour of Mr Black and Mr Morgan and that Mrs Wilkinson was not justified in her actions. She had, therefore, discriminated against them.
This is the second Court of Appeal case to find on the facts that, where the right of one party not to be discriminated against on the grounds of sexual orientation competes with someone else’s right to manifest their religious belief, the balance comes down in favour of the first. However, this does not mean to say there are no circumstances in which the justification defence could apply.