UK Discrimination Law Review: Sexual orientation discrimination: Court of Appeal rejects appeals in bed and breakfast claims
- Employment and labour law
In two separate cases the Court of Appeal has recently upheld findings of sexual orientation discrimination after same-sex couples were turned away from hotel and bed and breakfast accommodation that they had booked. The cases are both now heading for the Supreme Court and in this article we outline the issues that will be considered.
Bull v Hall and Preddy
The first case to be considered by the Court of Appeal was Bull v Hall and Preddy. The case came about after a same-sex couple, who were in a civil partnership, were not permitted to stay in a hotel in a double room; the hotel owners were Christians and would only allow married couples to stay in a double room. Notwithstanding the owner’s argument that an unmarried heterosexual couple would not have been permitted to stay in a double room either, the Court of Appeal upheld the claims of direct sexual orientation discrimination. The reason for this conclusion was that the only distinction between a couple in a civil partnership and a married couple is their sexual orientation, and the law makes it clear Act that the fact that one person is married and the other a civil partner is not a material difference in their circumstances.
The Court of Appeal recognised that this conclusion would restrict the hotel owners’ ability to manifest their religious beliefs. However, the right to manifest religious beliefs under Article 9 of the European Convention is not absolute: it is qualified by the need to protect the rights and freedoms of others. Therefore, the hoteliers’ fundamental rights were not considered to have been breached by requiring them to accommodate same-sex couples in civil partnerships.
Black v Wilkinson
The second case to be decided by the Court of Appeal was slightly different, in that the same-sex couple were not in a civil partnership. However, the Court of Appeal ruled that this made no difference to the outcome and that it was bound to follow it’s earlier decision.
Despite this conclusion, however, the Court of Appeal expressed doubts as to whether cases like this are really claims of direct, rather than indirect, discrimination given that the policy of refusing accommodation was applied to all unmarried couples, not just same-sex couples. The distinction is significant because indirect discrimination is capable of justification, whereas direct discrimination is not. On the facts of the case and the evidence put forward by the defendants, the Court of Appeal felt that any indirect discrimination would not have been justified. However it does not follow that the same conclusion would be reached in all cases involving a clash of rights.
The cases are now due to go before the Supreme Court. This will be the first time the Supreme Court will have considered a case involving the interplay between sexual orientation discrimination and religious beliefs. On a wider front, the case provides the Court with a welcome opportunity to clarify where the boundary lies between direct and indirect discrimination.
Bull v Hall and Preddy  EqLR 338
Black v Wilkinson  EqLR 894
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