“Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple? Does it make any difference that the couple have entered into a civil partnership? These are questions which would have been unthinkable less than two decades ago. That they can now be asked is a measure of how far we have come in the recognition of same sex relationships...” This powerful opening paragraph from Lady Hale’s judgement in the case of Bull & Bull v Hall & Preddy (handed down yesterday morning) sets the tone for a collective judgement of the Supreme Court Justices which symbolises the complexity and, very often, the tension created by competing beliefs and rights in society. The headline news is that Mr and Mrs Bull (the hotel keepers) did unlawfully discriminate against Mr Hall and Mr Preddy (a homosexual couple in a civil partnership), when they refused to let them stay in a double-bedded room in their hotel.

The facts of the case are simple: Mr Hall and Mr Preddy booked a two night stay at the Bulls’ hotel. Had they booked online, they would have seen the following statement on the Bulls’ website: “Here at Chymorvah we have few rules, but please note, that out of a deep regard for marriage we prefer to let double accommodation to heterosexual married couples only – thank you”. However, the booking was made over the phone and, due to an oversight, they were not advised of this policy. When Mr Hall and Mr Preddy arrived at the hotel, they were told that double-bedded rooms were for married couples only and they were, therefore, refused the right to stay in one of those rooms, even although they explained they were civil partners.

Mr Hall and Mr Preddy raised a successful claim of discrimination on the grounds of sexual orientation in Bristol County Court, relying upon the legislative provisions prohibiting discrimination in the provision of services (separate to but associated with the provisions dealing with discrimination in employment). The Court of Appeal upheld this decision, and so the Bulls appealed to the Supreme Court.

The key battle grounds of the case were as follows:

Direct Discrimination

Mr Hall and Mr Preddy claimed they were discriminated against directly on the grounds of their sexual orientation. The Bulls denied direct discrimination, stating that their policy regarding double-bedded rooms applied to all unmarried couples, not just homosexual unmarried couples. By a majority of 3 to 2, the Supreme Court found that direct discrimination on the grounds of sexual orientation had taken place.

Lady Hale, who gave the leading judgement, stated that the Bull’s concept of marriage (flowing from their devout Christian beliefs) was the union of one man and one woman. Lady Hale held that the criteria of marriage or civil partnership could not be dissociated from the sexual orientation of those people qualifying for the particular statuses (based on the law at the time of this case being that only a man and a woman can marry and only homosexual couples can enter into a civil partnership). Put simply, Lady Hale found that the stated reason for the treatment in question (that they were unmarried) was inextricably linked to Mr Hall and Mr Preddy’s sexual orientation and so the policy constituted direct discrimination.

The President of the Supreme Court, Lord Neuberger, respectfully disagreed with Lady Hale’s reasoning in relation to direct discrimination. In doing so, he stated that in his view it was important to keep the law on this area (direct vs indirect discrimination) clear, and the notion that the discriminatory behaviour of the Bulls “ought to be” or “feels like” direct discrimination should not lead to a decision which blurs an otherwise clear area of law.

This disagreement between the President and Deputy President of the Supreme Court on a key concept of discrimination law is, in my view, one of the most fascinating parts of the judgement.

Indirect Discrimination

It was accepted by the Bulls that their policy constituted indirect discrimination, but they argued that this could be justified on the basis that they shouldn’t be compelled to run their business in a way that conflicted with their deeply held beliefs, and that a fair balance should be struck between Mr Hall and Mr Preddy’s right not to be discriminated against and their right to manifest their religious beliefs. The Supreme Court unanimously held that this discrimination could not be justified.

In another powerful chapter of her judgement, Lady Hale states that it is in the public interest to encourage stable, committed long-term relationships, whether homosexual or heterosexual. She reflected on the fact that the purpose of the discrimination legislation in question was to ensure that those of homosexual orientation were treated equally. Against that backdrop, to allow people (such as the Bulls) to treat homosexual people differently in this way would be to create a class of individuals who were exempt from anti-discrimination legislation, and this should not be permitted. If Parliament had intended for there to be such an exemption, they would have provided for it in the legislation (as they did (to some extent) for religious organisations).

Human Right to Manifest Religious Beliefs

Echoing the issues raised in the European Court of Human Rights’ cases of Eweida and Others v the United Kingdom (Ms Eweida being the British Airways employee who challenged BA’s uniform policy which prohibited her from visibly wearing a cross), the Bulls sought to rely on their Human Right to manifest their religious belief. The Supreme Court gave a robust view on this aspect of the appeal, stating that although the Bulls’ right to manifest their beliefs was recognised, it could (and in this case should) be limited where the rights and freedoms of others were being protected.

What Does This Decision Mean?

It’s important to note that this case was not concerned with discrimination in the workplace, rather discrimination in the provision of services. That said, employers and service providers alike must take note of the judgement and the implications for them. But what are these implications?

The Supreme Court was at pains to emphasise that this decision does not elevate one group of individuals with a protected belief (in this case, homosexuals) over another group with a competing protected characteristic (in this case, deeply held religious beliefs). To compare the Bulls and Mr Hall and Mr Preddy in that way is to miss the key point: the Bulls were not being discriminated against - Mr Hall and Mr Preddy were. In a “penny-dropping” moment of her judgement, Lady Hale explains that if the roles had been reversed and Mr Hall and Mr Preddy had refused to provide services to the Bulls on account of them being Christians, the Bulls would have been protected under discrimination law.

The Supreme Court’s judgement makes it clear that those who enter into the sphere of service provision or employment must do so with their eyes open, on the very clear understanding that:

• they cannot treat individuals with protected characteristics less favourably;
• only in very limited circumstances will they be able to apply a policy that disadvantages protected groups; and
• their human right to manifest their religion and beliefs in the way they provide services must be balanced against the need in a democratic society to protect the rights and freedom of others.

The last of these points is, in my view, the most notable. There’s a tangible trend in discrimination law cases of human rights arguments being invoked to justify otherwise discriminatory conduct. The cases of Eweida and Others brought this “clash of rights” principle to the fore. And the Supreme Court touched again on it in this case by discussing the concept of “reasonable accommodation” of competing rights. I see this as becoming a hot topic in the next few years, and so employers and service providers should look out for potential areas of conflict and, when these issues (inevitably) crop up, they should tread extremely carefully.

I see this decision, particularly the majority’s view on the delineation between direct and indirect discrimination, signifying yet another significant development in discrimination law, which is already notoriously difficult to navigate. I suspect we will now see more cases where both direct and indirect discrimination are pled, with Claimants and Respondents no doubt relying on Lady Hale and Lord Neuberger’s judgements respectively to support their positions. It’s becoming a cliché in our sphere of legal practice, but it’s yet another case of “Watch This Space…”

Related News, Insights & Events