Second Christian B&B case headed for the Supreme Court
23 July 2013
Black and Morgan v. Wilkinson  EWCA Civ 820 – read judgment here.
The Court of Appeal recently dismissed an appeal by a Christian bed and breakfast owner, upholding the decision that she unlawfully discriminated against a gay couple by refusing to provide them with a double bedroom. However, the Master of the Rolls (head of the civil justice system) Lord Dyson expressed doubt about whether the previous binding decision of the Court of Appeal in the very similar case of Hall and Preddy v. Bull and Bull  EWCA Civ 83, was correct, and the Court granted permission to appeal to the Supreme Court.
This decision is the latest in a line of cases which have grappled with the ‘conflict of equalities’, many of which have concerned the potential clash between religious freedom and the prohibition on discrimination on grounds of sexual orientation. It raises difficult questions about how to reconcile competing rights or ‘protected characteristics’ under discrimination law, and it will be very interesting to see how the Supreme Court deals with this and the Preddy case when they are heard together in the autumn.
The background facts to this judgment and the decision in the county court are set out in our previous blog post here. The appeal raised five issues:
(i) was the B&B actually a ‘boarding house or similar establishment’, such that it was caught by the Equality Act (Sexual Orientation) Regulations 2007;
(ii) did the B&B, given the very homely nature of the service provided, fall within the exception in the Regulations covering service done for people as if they were members of the family;
(iii) was this really a case of direct discrimination;
(iv) if it was not direct discrimination, was Mrs Wilkinson’s policy of not allowing unmarried couples to share a bed indirect discrimination; and
(v) if it was indirect discrimination, was Mrs Wilkinson’s policy justified?
The first two issues did not get very far. It was clear that Parliament intended B&Bs to be caught by the Regulations. Similarly, although the county court had found that Mrs Wilkinson provided a “personal and caring, even loving, service” to guests, this did not mean that they fell within the exception to the Regulations covering service provided to persons requiring special care and attention or situations in which persons are treated ‘as if they were members of the family’.
The Court of Appeal found the third question much more difficult. The appellant argued that she did not discriminate on the basis of sexual orientation at all, but rather sexual behaviour. She held to the mainstream Christian belief that the only right place for sexual activity is a marriage between one man and one woman, and had a policy of refusing a double bedroom to any unmarried couple. A similar argument had been run in the Preddy case and been rejected by the Court of Appeal. If this case could not be distinguished then that previous ruling would be binding on the Court. Lord Dyson MR expressed significant doubt about the Preddy decision:
In my view, Preddy was not a case of direct discrimination against a homosexual couple on the ground of their sexual orientation, since there were other unmarried couples who would also be denied accommodation on the ground that they too were unmarried. It was, however, a case of indirect discrimination because the defendants’ policy in that case put homosexual couples at a disadvantage compared with heterosexual couples on the ground of their sexual orientation. The former could not marry, whereas the latter could (which was the very reason given by the court in Preddy for holding that there was direct discrimination in that case).
However, he could not see any reason to distinguish the two cases so “reluctantly” concluded that Preddy was binding and held that there was unlawful direct discrimination.
The Court also held that there was indirect discrimination, for the reason above, and turned to consider the question of whether such discrimination could be justified. The appellant had argued that excluding gay couples from double rooms was a proportionate means of achieving a legitimate aim, namely exercising her right to manifest her religious beliefs (Article 9) and her right to respect for her private and family life (Article 8). However, the Court held that it was not proportionate (or, to put it the other way around, that requiring her to comply with the Regulations was a proportionate interference with her Article 8 and 9 rights), for the following reasons:
- Neither the freedom to manifest your religious beliefs nor the right not to suffer discrimination on grounds of sexual orientation is intrinsically more important than the other. Neither trumps the other. The weight to be accorded each depends on the particular circumstances of the case.
- In considering proportionality the court should give considerable weight to the fact that, following a public consultation, Parliament had already debated the correct balance between the competing rights and reached the conclusion that B&Bs should be caught by the Regulations. Although not conclusive, this was an important factor.
- In Eweida the European Court held that the fact a person can avoid a problem by changing their job or business does not mean there is no interference with their Article 9 rights, but the seriousness of the impact on a person is still relevant to proportionality. No evidence was put forward by the appellant that her business would suffer if she did not offer double bedrooms to anyone (which would have avoided the problem). The burden was on her to show that the restriction on her Article 8 and 9 rights caused her serious economic harm, and she had not discharged it.
It appears there would be a strange twist to this case following the passage of the Marriage (Same Sex Couples) Act 2013 last week. Now that gay couples can get married, it would seem on the above analysis that it is no longer directly or indirectly discriminatory to have a policy like Mrs Wilkinson’s and refuse double beds to all unmarried couples, whether opposite-sex or same-sex. Wouldn’t the position now be that a B&B or hotel owner would only fall foul of the law if they refused a double bed to a married same-sex couple where they would allow a married opposite-sex couple to share a bed?
More generally, the case shows up the difficulty in reconciling competing rights. In particular, it illustrates the problem of discrimination cases turning on whether an act can be analysed as direct (and therefore not justifiable) or indirect (and therefore potentially justifiable) discrimination, which can be quite an artificial or arcane exercise. Lady Hale gave a speech on this very problem of the ‘conflict of equalities’ on the same day this judgment was handed down, which is well worth reading as it canvasses many of the tricky issues that arise.
Finally, it does seem odd that the Court of Appeal held that Mrs Wilkinson’s desire to act in line with her deeply held religious beliefs and her conscience did not justify indirect discrimination, but suggested that if she had shown her business would not have been profitable if she took a different approach this could have justified it. Surely upholding the fundamental human right to freedom of religion should be given more weight in the balancing exercise than merely losing some money?