What the Ashers decision means for business
'View from the Chair' article by Dr Michael Wardlow, Chief Commissioner, Equality Commission NI, published in the Business Newsletter, 26 May 2015
There has been a great deal of publicity around the recent court decision on the refusal of a bakery to fulfil an order for a cake with a “Support Gay Marriage” slogan. It is understandable that people in many different types of business might be concerned about what the implications are for themselves, we have dealt with a number of queries already.
First, the decision has not changed or expanded the law. The court’s judgement confirmed the legal position which the Equality Commission has always held and which it has always used as the basis for our advice to service providers and employers.
Businesses operating in the commercial sphere, providing services to the public, cannot discriminate against people on any of the grounds covered by anti-discrimination law in Northern Ireland governing the provision of goods, facilities and services to the public. Those grounds are disability, gender, race, religious belief and political opinion, and sexual orientation. Consultation on the extension of the anti-discrimination laws on age to cover goods, facilities and services is being prepared by OFMDFM and is expected to be legislated later in this mandate.
The issues in the “cake” case involved the grounds of sexual orientation and religious belief and political opinion. The judge was satisfied from the evidence that the order for the cake was refused because the bakers took the view that the message on it conflicted with their views on sexual orientation and their religious and political views on a campaign to change the law on marriage. Accordingly she found that their decision was discriminatory under the laws covering these grounds.
Some of the commentary around this decision has posited extreme and provocative scenarios which, it is claimed, would pose insoluble problems for business people, particularly those with deeply held religious views. It is important to remember that the judgement spelt out clearly the limits of what the law requires. The judge found the bakery’s refusal to be unlawful, because they were contracted on a commercial basis to bake and ice a cake with entirely lawful graphics, and to be paid for it. She was clear that what the bakery was asked to do did not require them or their bakery company to support, promote or endorse any viewpoint.
For any business it will be a help for them to be clear and open about what goods facilities or services they offer to the public, just as they should have clear policies and procedures in employment matters. All business people make decisions on what they do or do not supply, usually on straightforward commercial grounds. Their policy can make it clear if there are services or goods they do not supply, but these should not be defined in such a way as to be discriminatory on any of the protected grounds.
The Equality Commission has always engaged extensively with businesses, large and small, providing advice on equality law, how to ensure businesses comply with it and what measures they can take which will help to address potential problems. We will be continuing this work and will be happy to give guidance to any businesses concerned by the discussions and misleading interpretations which have arisen around this particular judgement.