Protected Characteristics in Conflicts

Protected Characteristics in Conflicts

The Court of Appeal has recently heard the case of Black and Morgan v Wilkinson [2013] EWCA Civ 820 which involved a homosexual couple who were not in a civil partnership who wanted to stay in a bed and breakfast owned by a Christian hotelier. The couple was not offered a double bedroom on the basis that the owner’s religious beliefs would only tolerate the sharing of double bedrooms by monogamous heterosexual married couples.
Whilst this is not strictly an issue related to a person’s employment it is relevant to the interpretation of the Equality Act (Sexual Orientation) Regulations 2007 (now contained within the Equality Act 2010) when protected characteristics are in conflict with each other. This is often relevant in relation to whether or not there is discrimination within employment.
The question at hand was whether restricting the offer of double bedrooms in a small family-run bed and breakfast to married couples was unlawful.

In this case the Court of Appeal said this could be an act of both direct and indirect discrimination.

The Master of the Rolls considered that the County Court was right to conclude that this was a case of direct discrimination as the couple was treated less favourably than others on the basis of their sexual orientation.

It is not possible to to succeed in a claim for both direct discrimination and indirect discrimination based on the same set of facts. They are mutually exclusive as confirmed in R (E) v Governing Body of JFS [2010] 2 AC 728. However the master of Rolls noted that if for some reason this were not an example of direct discrimination it would still have been one of indirect discrimination as the Defendant’s policy put homosexual couples at a disadvantage on the grounds of their sexual orientation when compared with heterosexual couples.
The main difference between these claims is that indirect discrimination can be justified whereas direct discrimination cannot.
In this case if was found that the Defendant would not have been able to justify her treatment of homosexual couples by reference to her right to manifest religious beliefs and enjoyment of her home as any consideration of proportionality would have fallen in favour of the Claimants. This is because priority is only given to religious beliefs in certain narrowly circumscribed circumstances and the Defendant had failed to show that she would have suffered serious damage if she were not to be permitted to refuse rooms to homosexual couples.
If you consider that your employer has discriminated against you because of your religious beliefs sexual orientation or any other protected characteristic including race age sex or disability please contact Michael Lewin Solicitors whose dedicted employment team will be happy to discuss the issues with you and assist you wherever possible with a claim for discrimination.

Written by Anthony Fox

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