Creating a fairer Britain
This was an appeal from the Bristol County Court at which Mr Preddy and Mr Hall won their claim of sexual orientation discrimination when they were refused occupation of a double room by the hotel owners Mr and Mrs Bull because of their deeply held Christian beliefs.
At the one and a half day hearing in the Court of Appeal, Robin Allen QC and Catherine Casserley Counsel were instructed by the Commission for Mr Preddy and Mr Hall; James Dingemans QC and Sarah Crowther Counsel were instructed by the Christian Institute for Mr and Mrs Bull.
The thrust of the appeal from Mr and Mrs Bull was that there was in fact no direct discrimination as the County Court had held. Mr Dingemans seemingly had no new arguments for the Court of Appeal and more or less reiterated his submissions to the County Court. The issue for Mr and Mrs Bull was a concern about sexual behaviour rather than sexual orientation – they had put in place a restriction that there should be no sexual relations outside marriage at their property. The Defendants relied on the fact that unmarried heterosexual couples were also affected by the restriction. Thus, rather than the case being one of direct discrimination, it was one concerning indirect discrimination which was capable of being justified. The justification was that the restriction was necessary to protect the deeply held religious rights of the Defendants. In his submission that the restriction was proportionate, Mr Dingemans QC argued that 'proportionality should achieve a situation where, so far as possible, all persons of whatever protected characteristic – a religious belief or sexual orientation - can live and work together.'
In his response to the submissions Mr Allen simply pointed to the provisions of S3 of the Equality Act (Sexual Orientation) Regulations 2007 (now incorporated into the Equality Act 2010) which state:
(1) For the purposes of these Regulations, a person ('A') discriminates against another ('B') if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances)...
4) …, the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference in the relevant circumstances.
Thus in assessing the claim of Mr Preddy and Mr Hall that they had experienced discrimination in breach of these Regulations the court has no choice but to apply the rule that a married heterosexual couple is in the same position as a homosexual couple in a civil partnership (as indeed Mr Preddy and Mr Hall are). The application of this legal rule he submitted, is the beginning and end of the matter: the Appellants did not treat married couples in the same way as those in a civil partnership i.e. They did not treat sexual behaviour within marriage in the same way as sexual behaviour within a civil partnership. Thus, there was direct discrimination. Mr Allen also submitted that it is clear that once national law has recognized the legal status of same sex partnerships, the principle of equal treatment applies (see the judgment of the ECJ of 1/4/2008 in Case C 267/06 Maruko  ECR I 1757) so as to require those in a civil partnership to be treated in the same way as those in a marriage.
In respect of an individual’s right to hold absolutely a religious belief, in line with Article 9.1 of the ECHR, Mr Allen said it was arguable that adverse views regarding homosexuality do not reach the threshold of the basic standards of human dignity and integrity, as such views are not compatible with affording dignity to the private life of those who are not heterosexual. Nevertheless, he acknowledged that the Judge in the County Court found that the Appellants hold an orthodox Christian belief in the sanctity of marriage and the sinfulness of homosexuality; and that it falls within Article 9 of the Convention. The Judge further held that running a hotel along Christian principles was a manifestation of their religion. However, the ultimate question that the judge determined in favour of the Respondents concerned the issue of whether any interference with the manifestation of belief could be justified i.e. whether the interference was in accordance with law; a legitimate aim was being pursued; and the means of achieving the aim were appropriate and necessary - the manifestation of a religious belief must be compatible with the rights and freedoms of others – in this case the rights of gay men who have entered into a civil partnership to be treated in the same way as married couples. Thus, Mr Allen submitted that the Judge had taken an entirely correct approach.
Mr Allen went on to submit that the Appellants had endeavoured to overstate the Respondents’ case (and thereby the aims of the Commission) with the use of emotive language – referring to their being 'driven from their work' and having to close down - a finding of discrimination in this case means no such thing. It is up to the Appellants to adapt their working practices so as to comply with the law. Adaptation of working practices to address new laws that seek to extend equal treatment rights to groups that have suffered discrimination is nothing new.
A decision in the appeal was reserved and will be handed down at a later date.