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"Regulations") (since repealed by the Equality Act 2010).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
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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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