The thorny issue of religious belief and discrimination law (again)
20 October 2012
Black & Morgan v. Wilkinson (unreported, 18 October 2012, Slough County Court) – Read judgment
The Christian owner of a B&B in Berkshire was found to have discriminated against a gay couple by refusing to allow them stay in a double-bedded room because of her belief that all sexual activity outside of marriage is wrong.
Although a county court judgment, this case has been splashed all over the headlines, partly because of BNP leader Nick Griffin’s comments on Twitter (about which see more below) but also because it is so factually similar to the high-profile case of Bull v. Hall and Preddy which is currently before the Supreme Court (see our analysis of the Court of Appeal judgment here). This judgment has also come along at a time when the European Court of Human Rights’ decision is awaited in the four conjoined cases of Ladele, Eweida, Macfarlane and Chaplin, all of which involve issues of religious freedom and two of which involve the same potential conflict between the right not to be discriminated against on grounds of sexual orientation and the right to religious freedom (see our posts here, here and here). Moreover, Recorder Moulder’s comprehensive and careful judgment has helpfully been made available online (see link above), so it can be considered in detail.
Some novel points
There were two elements which made this case different from Bull v. Preddy. First, Mr Morgan and Mr Black are not in a civil partnership, whereas Mr Hall and Mr Preddy, the claimants in the Bull case, are. Mrs Wilkinson said this was an important difference, because it meant the correct comparator for a discrimination claim was an unmarried opposite-sex couple, and she would also have refused to allow such a couple to have a double bed. However, Recorder Moulder considered that the decision in Bull was not dependent on the fact that Mr Hall and Mr Preddy were civil partners, and thus she was bound to follow the Court of Appeal.
He also noted that, if she were wrong about that, it would still be direct discrimination using an unmarried comparator as it appeared Mrs Wilkinson had allowed unmarried opposite-sex couples to share a bed on a few occasions because she had not found out, until it was too late to refuse, that they were unmarried (see para 44).
[One interesting side-issue to note from this judgment is that much turned in Bull, and therefore in this judgment as well, on the fact that same-sex couples cannot get married, so discriminating on the grounds of marriage was in effect the same as discriminating on the ground of sexual orientation. On the other hand, Recorder Moulder referred to regulation 3(4) of the relevant Equality Act (Sexual Orientation) Regulations 2007, which provides that there is no material difference between marriage and civil partnership. This seems to contradict Bull. If, as is proposed, same-sex ‘civil’ marriage is to be introduced, but not ‘religious’ marriage, this issue might become even more complex (particularly as it is unclear what the difference would be between the two).]
Second, the ‘Swiss B&B” which Mrs Wilkinson owns has its guest bedrooms in the centre of the family home (unlike the Bulls’ B&B where the guest bedrooms were in a separate part of the house) . She argued that this meant her B&B was not a hotel or boarding house for the purposes of regulation 4(2)(b) of the Regulations. However, Recorder Moulder held that, although different to a hotel or boarding house, the Swiss B&B is clearly a commercial venture and is a “similar establishment” to a boarding house, so did fall within regulation 4(2)(b).
Alternatively, Mrs Wilkinson argued that because she treated guests as if they were part of the family, her B&B fell within regulation 6(1), which exempts from the scope of the Regulations:
anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons or persons requiring a degree of special care and attention
Recorder Moulder did find that Mrs Wilkinson provided a personal and caring, even loving, service to her B&B guests. However, this did not fall within a straightforward reading of the regulation, which is intended to cover people (such as children) who are taken in as if they were family and/or require special care and attention. B&B guests such as Mr Morgan and Mr Black did not fit into this category.
Recorder Moulder therefore held that the Regulations did apply to the Swiss B&B and there was direct and indirect discrimination, following the decision in Bull. The final stage was to consider whether this effect of the Regulations was in breach of Mrs Wilkinson’s Article 8 (private and family life) and Article 9 rights (religious freedom) under the European Convention. After considering the case-law and the circumstances, he held that whilst Mrs Wilkinson’s Article 8 and 9 rights were interfered with, such interference was justified because Parliament had decided the approach to be taken where rights conflicted in this way and its decision should be deferred to (see para 103).
Unsurprisingly, given the fact that Bull is currently before the Supreme Court, Recorder Moulder granted permission to appeal.
Given the current case-law it is not surprising that Recorder Moulder reached the conclusions he did. It is up to the Supreme Court or European Court of Human Rights to change the approach taken thus far to these cases.
There does seem to be a good argument for a different approach to cases where religious belief clashes with discrimination law (as has been suggested previously on this blog). At present, the impression given by the courts is that Article 9 is about the least effective part of the European Convention. Although the protection of the holding of a belief under Article 9(1) is absolute, the protection of manifestations of belief under Article 9(2) is interpreted so narrowly as to have almost no impact at all in relation to whole swathes of public life.
As the UK Government argued before Strasbourg last month in Ladele et al, the reading of Article 9(2) by the European Court in previous cases has the effect that if people find their religious beliefs conflict with their jobs, they should either ‘leave their beliefs at home or get another job’. Article 9 will not help them. The practical effect of decisions like Bull and Wilkinson is that, at least in relation to some issues, self-employment is no escape either – if people find their beliefs conflict with their customers’ beliefs, they should either keep their beliefs to themselves or start a different business.
Article 9 protects a poor form of religious freedom indeed, if it does not extend to either the workplace or the marketplace. The current approach is in danger of forcing millions of people to be hypocrites; able to act in line with their beliefs in their own homes or at the mosque/church/synagogue/temple, but having to put on a different face at work or in business. That is unacceptable and unworkable.
But the principle of non-discrimination on grounds of sexual orientation is also hugely important, and carving out exceptions would make it meaningless. Reconciling the two is difficult, but there must be a means of doing so that ensures religious freedom is more than just the freedom to believe what you want in private, and which celebrates and protects the fact that we live in a society which tolerates all kinds of different belief systems.
Postscript – how to debate these issues (and how not to)
The manner in which the parties in this case have gone about resolving their dispute stands in stark contrast to many would-be ‘supporters’ of either side. Whilst Mrs Wilkinson was firm in her refusal to offer a double bed to Messrs Black and Morgan, they confirmed that she was “polite and courteous” and said she would have offered them single rooms had any been available. Mr Black and Mr Morgan did not kick up any huge fuss, but simply had their deposit returned and left. The case itself appears to have involved very little argument over the facts, turning almost solely on careful legal argument.
In contrast to the measured way that both sides dealt with this, Mr and Mrs Wilkinson described last month how they and their children have been subjected to months of hate mail, death threats and fake negative reviews about their B&B on TripAdvisor by various anonymous ‘supporters’ of Mr Black and Mr Morgan’s position.
Then on Thursday Nick Griffin of the BNP tweeted Mr Black and Mr Morgan’s address and appears to have threatened them with reprisals as a result of this judgment. Thankfully the couple do not seem too frightened by this – calling the threats a ‘damp squib‘ . Mrs Wilkinson also immediately issued a press release expressing sympathy for the couple and condemning Mr Griffin’s comments.
Given that the issue of how best to reconcile religious beliefs with discrimination law does not seem likely to go away any time soon, it is to be hoped that the debate will be carried out in the style of Mrs Wilkinson, Mr Black and Mr Morgan, rather than that of Mr Griffin and the anonymous trolls who made Mrs Wilkinson’s life so unpleasant.