For many couples, a weekend escape to a country B&B should be the pinnacle of relaxation in an otherwise busy working life. However, one same-sex couple found their retreat to be just the opposite when they found themselves the subject of discriminatory behaviour at the hands of the proprietor.
In a recent high profile case, the Christian owner of "The Swiss Bed and Breakfast" failed to successfully appeal the decision of Slough County Court that the claimants were discriminated against on the grounds of sexual orientation. Here, the couple had booked a double room under one name, but on arriving at the B&B they were told that they could not be accommodated in a double room as they were both men. The owner has sought to restrict the sharing of double rooms to "heterosexual, preferably married couples" due to her religious beliefs. The couple's deposit was refunded and they left.
The couple brought a claim for direct discrimination under the Equality Act (Sexual Orientation) Regulations 2007 (the "Regulations") (since repealed by the Equality Act 2010). The Regulations made it unlawful for a person concerned with the provision of services to the public to discriminate against a person who sought to obtain those services on the ground of that person's sexual orientation by refusing to serve them. Although there was much discussion on the technicalities of the Regulations what is perhaps more interesting is that this case considered the compatibility of discrimination legislation and the ECHR.
It was maintained by the appellant that the effect of the Regulations was interference with her Article 8 (private and family life) and Article 9 (religious freedom) rights under the European Convention. However, the claimants' Article 8 with Article 14 (prohibition of discrimination) rights were also engaged. This situation reflects an all-too-often balancing act that the courts must perform when trying to reconcile parties' Article rights.
The current impression given by the Courts is that Article 9 is not given much weight when considering a clash between discrimination and religious beliefs. Although the right to hold a belief is protected absolutely, the right to manifest that belief is subject to qualifications often leading to a narrow interpretation of what constitutes a manifestation. Indeed, in her judgment of this case Arden LJ seems to place more emphasis on an implied hierarchy of rights under which race and sex must be given greater weight than, for example, religion and belief or freedom of association.
Although it is held that no right or principle is intrinsically more important than the other, the consistent approach adopted by Strasbourg jurisprudence and UK courts is that rights concerning immutable characteristics, such as race and sex, require more convincing and weighty reasons to justify interference, therefore affording better protection for these attributes. Rights under Article 9, for example, have often found themselves on the lower end of the balancing scale as it is argued that the principles underpinning these rights reflect changeable preferences. For example, a person can change his religion but not his race or sex.
The practical effect of this apparent hierarchy of rights is that if people find their religious beliefs conflict with their jobs, they should either 'leave their beliefs at home or get another job' as Article 9 will not help them. Commentary suggests that this is a harsh and unworkable principle to follow, and that it does not reflect the diverse and tolerant society we live in. However, it does not prevent anyone from holding certain beliefs, simply from manifesting them to the detriment of another.
It seems unlikely that the debate on balancing these two Article rights will be convincingly resolved in the near future, and it is maintained that each case will turn on its particular facts rather than ever having a pre-formed hierarchy of rights. What this recent decision shows, however, is that religious beliefs protected by Article 9 are likely to receive less consideration and more interference than others. Although this case was not brought in an employment context, it is increasingly apparent that both employers and employees alike need to be aware of the potential issues associated with exhibiting their religious beliefs at work.
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