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Tuesday, 23 October 2012

Black and Morgan v Wilkinson: religious discrimination once more

In advance of the expected judgments of the Supreme Court and the European Court of Human Rights on the issue of sexual equality and religious freedom, the Slough County Court has had to have a go at the issue, in the case of Black and anor v Wilkinson. The judgment can be found here.

The facts
A gay couple asked for a room at a B&B and were refused.  They would have been offered separate rooms but none were available, and the owner objected to unmarried couples sharing a bed. The couple brought a claim for direct discrimination under the regime then in force, namely reg 4(1) of the Equality Act (Sexual Orientation) Regulations 2007 (since repealed by the Equality Act 2010).  That regulation made it unlawful for a person concerned with the provision of services to the public to discriminate against a person who sought to obtain those services on the ground of that person's sexual orientation by refusing to serve them.

The discrimination was not that the proprietor refused gay couples a room per se, but rather all unmarried couples.  It was therefore a question of indirect discrimination, since gay couples presently do not have the right to get married.  The couple involved in the case were not in a civil partnership either as it happens, and on that ground differed from those in the well-known case of Bull v Preddy, though it does not seem to be a material difference.  Incidentally there was evidence that on the odd occasion unmarried couples had been allowed to share a bed, though apparently only when the proprietor had not discovered that they were unmarried until after granting them the room.

A second issue concerned whether the B&B was really a business, or was so closely connected to the proprietor's home that it should be considered as part of the home and thus no-one else's concern.  That might be a grey area in some cases, although in the present case it seems tolerably clear that the defendants were indeed operating a business. But in order to keep this post to manageable length I will leave the point to another day.


On the face of it, the decision seems straightforward.  It is a generally accepted principle of equality that in offering services to the public, one may not discriminate on proscribed grounds.  Few would wish to see B&Bs once again able to display signs saying "no blacks or Irish", and President Obama was rightly applauded when he observed he now held the top job in a city in which many restaurants would have refused to serve his father within living memory.

A slightly differing view is found in this analysis on the UK Human Rights Blog by Alasdair Henderson.  There are some erudite and interesting comments in the discussion thread below as well. Mr Henderson states:

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.


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.

With this I respectfully disagree.  The link in Mr Henderson's article is to a previous blog by Aiden O'Neill QC, to which I responded here.  My conclusion was (and remains) that one is entitled to respect for the right to hold beliefs, but not respect for those beliefs themselves. Just because a person is entitled to hold a belief does not mean that another person has to pay for it, or suffer unlawful discrimination because of it. What is unworkable is trying to determine when and how people are entitled to exemptions from the general law because of a professed religious belief - or belief which they say should be elevated to the same status as religion.

Mr Henderson observes that

... 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.

The problem is that the moment religion enters the public domain one is forced to pick and choose which religions and which of their practices are to be permitted and which are not.  This is not a straightforward exercise, to say the least.  A private member's bill has recently been introduced to the Lords to address one example, and it has provoked some illuminating if disturbing discussion in Hansard.

Still, I cannot help but think that the courts are not always the best way to deal with disagreements.  By using the cudgel of the state's coercive powers to prevent all manifestations of beliefs that we find objectionable, we are in danger of replacing one form of intolerance with another. It is not as though the B&B proprietors in this case or in Bull were out to ban homosexuality or otherwise oppress gay people; they simply had what others would find old fashioned views about marriage. Nor is it their fault that gay marriage is not presently lawful.  Mr Henderson correctly applauds the relatively civil fashion in which the dispute was conducted (in contradistinction to others who dipped their oars into the matter), but given that civility I wonder if litigation was really necessary.

Then again, let us look to the not-so-distant past and a different form of discrimination. In the mid-1970s the Sex Discrimination Act came into force. Yet in some well-known cases that followed soon after(1), elderly male judges ignored the plain meaning of the Act and everything that had ever been said about its purpose. Instead they announced found that separate treatment of men and women might be justified on the grounds of “chivalry and administrative convenience” or disregarded as de minimus.

The judgments read like quaint pieces of social history to modern readers. Perhaps the judges of the day did not see what the fuss was about, or felt that their views were nothing more than “common sense” – as indeed they probably were to an earlier generation. But just as we would now insist in a similar case that the law be applied and the discrimination against women outlawed, so we must decide cases on discrimination involving sexual orientation in the same fashion – unlawful discrimination is unlawful discrimination.

(1) See eg Peake v Automotive Products Ltd [1978] Q.B. 233, where Lord Denning MR offered in the context of different treatment of male and female factory workers "I must say it would be very wrong to my mind if this statute were thought to obliterate the differences between men and women or to do away with the chivalry and courtesy which we expect mankind to give womankind. The natural differences of sex must be regarded even in the interpretation of an Act of Parliament."


  1. "My conclusion was (and remains) that one is entitled to respect for the right to hold beliefs, but not respect for those beliefs themselves. Just because a person is entitled to hold a belief does not mean that another person has to pay for it, or suffer unlawful discrimination because of it".

    A very good point and one I agree with in cases where there is a clash of Article rights, as there is in the B & B cases.

    What about cases where there are no clashes? I refer to the wearing of religious insignia in the workplace.

    Although Article 9 is a qualified right, the right to manifest is a protected fundamental freedom. I understand the term fundamental freedom to mean that there must be good and compelling reasons for interference. I struggle to believe that conformance with an employer's dress code, or that employer disapproval, is a compelling reason.

    I concede H & S, employer reputational risk, or business efficacy could be compelling reasons to justify interference but not much else.

    So I think work place cases should be looked at differently from market place cases, partly because of the power imbalances in the employer/employee relationship (master/servant) and partly because Article clashes rarely arise between employer and employee.

    Individuals should not, in my view, lose ECHR protection by virtue of their status as employees. Human rights and fundamental freedoms should be respected in the workplace too.

    I am aware and troubled that this last paragraph contains an unfashionable view.

  2. Thanks for a very interesting comment. As for the workplaces cases, the actual ones which have been referred to Europe are pretty weak cases on their facts. As I recall, they could have worn the crosses inside their uniform; the ban was on objects being displayed. None of it seemed a big enough deal to be going to court.

    I do not think it is a case of losing one’s rights in the workplace, more a question of what those rights actually entail. It seems to me that there are three options. First, to be a theocracy whereby we mandate wearing certain religious symbols and ban all the others. Second, to try and allow all symbols, but inevitably this will mean picking and choosing, and no doubt ending up with something like a “reasonableness” test. Third, to adopt more of a French approach which is to have a separation of church and state, meaning religion is left to the private sphere. I do not think that it was consistent with that approach for the French to ban the burqa in public: a neutral state would have banned it only in the context where it was necessary to do so for security or other such reasons.

    But what then of the thoroughly unreasonable or capricious employer who allows some religious symbols but not others? If one views an employment contract as a private agreement between two parties in which the state should not generally intervene, then that is up to the employer and employee. If one accepts your point about unequal bargaining power – which is controversial (and if valid potentially applicable to many more private agreements – then we have more grounds to interfere. In which case, we would have to go back to some form of ‘reasonableness’ test, however cumbersome it might be. In other words, employees should be entitled to wear whatever symbol they choose provided it does not ‘reasonably’ interfere with an employers’ dress code. (I am less sympathetic, incidentally, to schoolchildren trying this on as one or two have in cases over the years; the idea we have to label children with their parents’ religion is not one with which I agree.)