Procedural Posture
Michael Black and John Morgan filed a claim under the Equality Act (Sexual Orientation) Regulations 2007 that Susanne Wilkinson had discriminated against them by refusing to provide them a room at her bed and breakfast.
Facts
Claimants are a same-sex couple who are not in a civil partnership or married. They booked a room at the bed and breakfast but when they arrived the defendant met them in the driveway and explained that she did not like the idea of two men sharing a bed and had no alternative rooms to offer them. She returned their deposit.
Issue
Whether there was direct or indirect discrimination against the claimants and whether the defendant had a justification based on her freedom to manifest religious belief, as protected by Article 9 of the European Convention.
Domestic Law
Equality Act (Sexual Orientation) Regulations 2007
Human Rights Act 1998 (incorporating into domestic law the European Convention for the Protection of Human Rights and Fundamental Freedoms)
Bull and Bull v. Hall and Preddy, Court of Appeal, 2012 (finding violation of Equality Act Regulations when same-sex couple in civil partnership were denied accommodation at hotel)
Comparative Law
Ontario Human Rights Commission v. Brockie, Ontario Superior Court of Justice, 2001
International Law
European Convention for the Protection of Human Rights and Fundamental Freedoms
C v. United Kingdom, Application No. 10358/83, European Commission of Human Rights, 1983 (“Article 9 of the Convention does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief.”)
Pichon and Sajous v. France, Application No. 49853/99, European Court of Human Rights, 2001 (finding inadmissible claim of pharmacists that refusal to sell contraceptives was manifestation of their religious beliefs).
Reasoning of the Court
The Court found first that there was less favourable treatment of the claimants than opposite-sex couples because they were refused a double bedroom. There was evidence that the defendant had permitted unmarried opposite-sex couples to share a bedroom.
On the religious freedom claim, the Court found that the refusal to accept the claimants was a “manifestation of her religious beliefs within Article 9(2).” The question then was whether the restriction imposed by the Equality Act Regulations was a justified interference with that manifestation. Was it prescribed by law and necessary in a democratic society for the protection of the rights and freedoms of others?
The claimants argued that the proper balance to be struck between religious beliefs and freedom from discrimination on grounds of sexual orientation was considered by the Parliamentary Joint Committee on Human Rights when it considered proposed exemptions for Christian hostels and commercial bed and breakfast establishments with religious owners. The Parliamentary Joint Committee had concluded that where “businesses are open to the public on a commercial basis they have to accept the public as it is constituted.” In other words, it rejected the proposed exemption.
The Court agreed that this issue had been decided by Parliament and recalled the deference due to the legislature and executive. The Court emphasized that the defendant was had chosen to run this business and thus was in a different position from an employee who has new duties imposed on him by an employer. The Court stated: “In my view the application of the regulations to the Defendant’s bed-and-breakfast establishment does not prevent her from holding her religious beliefs but she has chosen to operate a commercial business.”
The Court concluded that the application of the regulations to the Defendant and the finding that the refusal of the room constituted direct discrimination was not in breach of her Article 9 rights. Rather they were a limitation prescribed by law, necessary for the protection of the rights and freedoms of others, and proportionate in means and effect.
Black and Morgan v. Wilkinson, Slough County Court, United Kingdom (18 October 2012), (Full text of judgment, PDF)
