Labour & European Law Review Weekly Issue 355 05 February 2014
It is illegal under the Equality Act 2010 to discriminate against someone on the grounds of their sexual orientation. In Bull and Bull v Hall and Preddy, the Supreme Court said that courts should be slow to accept that prohibiting hotel keepers from discriminating against gay people was a disproportionate limitation on their right to manifest their religion.
In September 2008, Mr Preddy and Mr Hall, a same sex couple in a civil partnership, booked a double room for two nights over the phone at the guesthouse run by Mr and Mrs Bull. However, when they got there, the Bulls refused to allow them to stay because, as Christians, they said they only let double-bedded rooms to heterosexual married couples, a policy displayed clearly on the website.
As there were no rooms with twin beds available, Mr Preddy and Mr Hall were given their money back and had to find alternative accommodation.
The two men complained under the Equality Act (Sexual Orientation) Regulations 2007 (now incorporated into the Equality Act) that the hotel owners had directly and/or indirectly discriminated against them on the grounds of their sexual orientation.
Mr and Mrs Bull argued that the policy had nothing to do with sexual orientation as it applied to all unmarried couples. They also argued that the regulations had to be read in conjunction with their rights under the European Convention on Human Rights (ECHR), including articles 8 (respect for private and family life), 9 (freedom of thought, conscience and religion) and 14 (prohibition of discrimination).
Decisions of lower courts
The county court judge concluded that the refusal to allow the men to stay was based on their sexual orientation, which constituted direct discrimination. The fact that the policy was based on marital status was irrelevant. It was also indirect discrimination, in that the Bulls had clearly applied a provision, criterion or practice which put Mr Hall and Mr Preddy at a particular disadvantage and which could not be justified.
He also ruled that the regulations were compatible with the ECHR. The right of the Bulls to a private and family life could be met in the part of the building that they did not use as a guesthouse. And although the regulations affected their article 9 rights, this was qualified and could be limited to protect the rights and freedoms of Mr Hall and Mr Preddy. The Court of Appeal agreed.
Decision of Supreme Court
The Supreme Court held that Mr and Mrs Bull did not deny Mr Preddy and Mr Hall a double bed just because they were unmarried. They also refused them a room because their “legal relationship was not that of one man and one woman”. As they would undoubtedly have denied a double bed to a same sex couple who were legally married under some foreign law (or if it became law in the UK), this amounted to direct discrimination on grounds of sexual orientation. If it was indirect discrimination (as two of the judges found), it could not be justified.
This finding was compatible with the right of Mr and Mrs Bull under the ECHR to manifest their religion, in that it could be justified as a proportionate means of achieving a legitimate aim - to protect the rights and freedoms of Mr Preddy and Mr Hall. As the court in Strasbourg demands “very weighty reasons” to justify discrimination on these grounds, courts in the UK “should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion”.