Guernsey: Battle Of The "Protected Characteristic" - A Unique Concept!

Last Updated: 30 December 2013
Article by Emma Parr

In Bull v Hall & Preddy (27 November 2013), the Supreme Court was asked to consider whether it was lawful for Mr & Mrs Bull, devout Christian hotel-keepers, to refuse a double-bedded room to a same sex couple, Mr Hall & Mr Preddy.

In summary, Mr Preddy made a telephone booking for a double-room for two consecutive nights during September 2008. Although the hotel's website stated "that out of deep regard for marriage we prefer to let double accommodation to heterosexual married couples only", this rule was not made clear to Mr Preddy when he called to make the reservation. The couple arrived at the hotel completely unaware of the owner's strictly held religious beliefs and only realised when they were denied check-in and asked to leave.

Whilst the general premise is that suppliers of facilities, goods and services may pick and choose their customers, there are still limits on how that premise may be exercised in reality; parties still need to be mindful of the duty not to discriminate.

This case has attracted attention as it explores a unique situation known as "battle of the protected characteristics". On the one hand the Bulls wished to manifest their religious beliefs (pursuant to Article 9) of the European Convention for the Protection of Human Rights, whilst Hall & Preddy wished to exercise their right to a private life (pursuant to 8) without discrimination on the grounds of their sexual orientation; both of which are protected characteristics in the eyes of the law. Here, the Supreme Court was placed in a difficult position by having to consider which "right" (if any) held a greater importance.

The case was tried at every level of English Court (having initially started in the Bristol County Court) but soon escalated all the way to the highest judiciary, the Supreme Court. The Bulls consistently argued that only a "divinely ordained sexual relationship between a man and a women is within the bonds of matrimony"; as such they could not support civil partnerships between same sex couples. In response, Hall & Preddy argued that the Bulls1 refusal to allow them occupancy of a double-room due to their sexual orientation was nothing more than discrimination. This assertion was strongly denied by the Bulls; put simply, they were not discriminating against the couple on the grounds of sexual orientation, but on the grounds that they were not married. The Bulls claim to have applied the same rule to unmarried couples of the opposite sex and for that reason could not be regarded as discriminatory as they too suffered the same disadvantage.

However, Lady Hale disagreed with the Bulls and decided in favour of Hall & Preddy. She found great difficulty in trying to reconcile how differing conduct between a heterosexual married couple and a civil partnership could be anything other than discrimination on the grounds of sexual orientation. A civil partnership is not defined as marriage but for all intents and purposes it has the same status; UK law introduced such unions to allow same sex couples the same legal responsibilities and rights enjoyed by married couples. Therefore, to assert that a couple must be "married" is a criterion that a same sex couple would never be able to meet. The law makes it clear that the status of marriage and civil partnership should not be treated as materially different. In other words, people who are married and people who are civil partners are to be regarded as similarly situated.

Whilst Lady Hale accepted that the Bulls should not be compelled to run their business in a way which conflicts with their deeply held religious beliefs, a fair balance needs to be struck between their right to manifest faith, with the right of Hall & Preddy to obtain goods and services free of discrimination. Both protected characteristics held equal importance and one was not greater than the other. However, to achieve this balance the Bulls should manifest their beliefs in other ways such as the symbolism of stationary, decorative items within the hotel, the provision of bibles etc. which do not discriminate against non-believers or adherents of other faiths.

Although many would argue that UK and European laws have no bearing or influence on the laws of Guernsey, that is not strictly true. Admittedly, Guernsey and Jersey have their own laws and follow their own rules, but many Channel Island businesses adopt best practice and pay close attention to legal developments on the mainland. Therefore, if you are a business which employs a person with a "protected characteristic" (be it sex, sexual orientation, age, race, disability etc, to name but a few), you may need to be mindful of any treatment towards them. To quote the words of Lady Hale "these are questions which would have been unthinkable less than two decades ago" but this just shows how far society has come in the recognition of human rights.

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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