Refusal to Bake a Cake was Not Discrimination


The Supreme Court has accepted an appeal by a bakery, previously held to have discriminated against a customer on the grounds of sexual orientation. 

The case of Lee v Ashers Baking Company Limited has received extensive media coverage as it progressed through the courts and appeal system from 2014 onwards. The customer, Mr Lee, placed an order with the bakery as part of their ‘Build a Cake’ offering. He ordered a cake with a slogan printed on the icing saying “Support Gay Marriage”. The message was also accompanied by a picture of Bert & Ernie from the TV show Sesame Street who are used on the logo for QueerSpace, a community group in Belfast.

After the shop accepted the order, and received payment, the owners of the bakery had second thoughts due to their religious beliefs. The owners were committed Christians, who disapproved of gay marriage – the company name had been chosen due to the biblical reference to “bread from Asher”. The owners contacted Mr Lee and advised him they could not process his request and they refunded his money.

Mr Lee pursued a claim for discrimination in the supply of goods and services. His claim received the support of the Equality Commission for Northern Ireland. Mr Lee succeeded in his claim at the first instance court. The company appealed to the Northern Ireland Court of Appeal, who still upheld the decision in favour of Mr Lee. The only remaining option for the company was a final appeal to the Supreme Court.

Lady Hale, giving the lead judgment on behalf of the Supreme Court on 10th October, overturned the two previous decisions and upheld the appeal. The essential part of Lady Hale’s reasoning was that the bakery did not object to the customer’s sexual orientation, but to the slogan “Support Gay Marriage”. Lady Hale sums up her reasoning concisely at paragraph 22: “The objection was to the message, not the messenger.” Even if a heterosexual person requested a slogan in support of gay marriage the bakery would have rejected that order as well. 

The Supreme Court decision is not without controversy. Many commentators and campaigners have suggested the decision creates the risk of suppliers refusing services when it conflicts with their personal beliefs. However, it is important for businesses to realise that treating an employee or a customer less favourably because of a protected characteristic is still unlawful discrimination. The Supreme Court upheld that principle, but decided the actions of the bakery were not because of Mr Lee’s protected characteristics.

These are complex issues, and we always recommend that further advice is obtained in such situations. If you have any questions on these issues please do not hesitate to contact our Employment lawyers on 0161 941 4000 or by email