NO ROOM AT THE INN: The Bed and Breakfast Dilemma Continues

05 Dec

As we approach the Christian celebration that is Christmas, and we are reminded of Mary and Joseph struggling to find room at an Inn for the night, Leanne Buckley-Thomson provides an overview of Bull and another v Hall and another [2013] UKSC 73 which reminds us that our faith cannot dictate who we accommodate if we own a bed and breakfast.

Christian owners of bed and breakfasts up and down the country will no doubt have been waiting with bated breath for the result of the appeal of Mr and Mrs Bull, the Judgment for which was given very recently on 27 November 2013. 

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As we approach the Christian celebration that is Christmas, and we are reminded of Mary and Joseph struggling to find room at an Inn for the night, Leanne Buckley-Thomson provides an overview of Bull and another v Hall and another [2013] UKSC 73 which reminds us that our faith cannot dictate who we accommodate if we own a bed and breakfast.

Christian owners of bed and breakfasts up and down the country will no doubt have been waiting with bated breath for the result of the appeal of Mr and Mrs Bull, the Judgment for which was given very recently on 27 November 2013. 

Background
For those who are not familiar with the case, Mr Preddy and Mr Hall are civil partners.  On 4 September 2008 Mr Preddy booked a double room via telephone at the Chymorvah Private Hotel for his civil partner and him.   The owners, Mr and Mrs Bull, are devout Christians with the sincere belief that the only divinely ordained sexual relationship is that between a man and a woman within marriage.   Their online booking form made it clear that out of a deep regard for marriage they prefer to let double-bedded accommodation to heterosexual married couples only.  Mr Preddy was unaware having booked by telephone and Mrs Bull unusually did not ask.   On arrival Mr Preddy and his partner were informed of the Policy and told that the booking could not be honoured.  Although the deposit was refunded the couple found the refusal very hurtful and had to seek alternative accommodation elsewhere.

Proceedings commenced in March 2009 supported by the Equality and Human Rights Commission under the Equality Act (Sexual Orientation) Regulations 2007.  Regulation 4 makes direct or unjustified indirect discrimination on the grounds of sexual orientation unlawful.  It is direct discrimination pursuant to Regulation 3(1) where person A treats person B less favourably than others on the ground of B’s sexual orientation.  Indirect discrimination exists pursuant to Regulation 3(3) where person A applies a general policy or practice to person B and others not of B’s sexual orientation, which puts B at a particular disadvantage compared to those others, and the policy or practice is not reasonably justified by reference to matters other than B’s sexual orientation.  Regulation 3(4) provides that civil partnership and marriage are not to be treated as materially different for the purpose of Regulations 3(1) and 3(3).

At first instance His Honour Judge Rutherford held that the refusal to allow the couple to occupy the double room was due to their sexual orientation and was direct discrimination within Regulation 3(1) . The Regulations were a necessary and proportionate intervention to protect the rights of others thus not incompatible with Mr and Mrs Bull’s ECHR rights. In any event it would be unjustified indirect discrimination within Regulation 3(3) .  Permission to appeal was given and the Court of Appeal ([2012] EWCA Civ 83) subsequently held that this was direct discrimination on the grounds of sexual orientation not capable of justification.  Although the policy of the Hotel was due to the religious beliefs of the owners within Article 9, the limitation imposed by the Regulations was necessary for the protection of the rights of others.  It is of note that in the lull before this case was heard in the Supreme Court, the case of Black v Wilkinson ([2013] EWCA Civ 820) was heard in the Court of Appeal with very similar facts.  Mrs Wilkinson did not pursue her appeal although permission was given for it to be heard with this case.

The Supreme Court
Mr and Mrs Bull’s appeal was on the basis that:
i)    their policy did not constitute direct discrimination
ii)    their policy did constitute indirect discrimination, but this was justified
iii)    if their policy did contravene the Regulations they should be read and given effect compatibly with their Article 9 ECHR right of freedom to manifest their religion

The leading Judgment was given by Lady Hale and the appeal unanimously dismissed by the Supreme Court.  Of the five Judges Lady Hale, Lord Kerr and Lord Toulson held that the Hotel Policy did amount to direct discrimination on grounds of sexual orientation.  Lady Hale was of the view that “civil partnership is not called marriage but in almost every other respect it is indistinguishable” [paragraph 26] and with or without Regulation 3(4) “had the greatest difficulty in seeing how discrimination between a married and civilaly partnered person can be anything other than direct discrimination on grounds of sexual orientation”  [paragraph 29].  Lady Hale was clear that is not the case that sexual orientation is to be favoured over religious beliefs stating that “if Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today” [paragraph 54].  Lord Kerr took the view that “this is not a question of Regulation 3(4) transforming what was indirect discrimination into direct discrimination” but that “by virtue of that paragraph of the regulation, they could not be distinguished, as a matter of law, from a couple who were married. The fact that this applies both in the direct and indirect discrimination contexts does not derogate from the impact that the provision has on the operation of Regulation 3(1) . There is no material difference between Mr Preddy and Mr Hall and a married couple”[paragraph 59].


Lord Neuberger and Lord Hughes disagreed and were of the view that the Policy amounted to indirect discrimination as “Mr and Mrs Bull would have treated an unmarried heterosexual couple in precisely the same way that they treated Mr Preddy and Mr Hall” [Lord Neuberger at paragraph 77] and “the reality is that it is on grounds of being unmarried” [Lord Hughes at paragraph 91].  The Court considered indirect discrimination and unanimously held that if this were the case, it would not be justified. I note that it was already accepted by the Appellants that their Policy did amount to indirect discrimination.  Lady Hale states at paragraph 35 that “it would be hard to find that a belief that sexual intercourse between civil partners was sinful was a ‘matter other than [their] sexual orientation’, because by definition such sexual intercourse has to be between persons of the same sex”.  Further it was considered that “it is very much in the public interest that intimate relationships be conducted in this way.  Now that, at long last, same sex couples can enter into a mutual commitment which is the equivalent of marriage, the suppliers of goods, facilities and services should treat them in the same way” [Lady Hale at paragraph 36].

As to whether or not there was a breach of Article 9 of the ECHR the Court unanimously held that although the Regulations engaged Article 9, interference with the same was a justified and proportionate means of achieving a legitimate aim.  In particular Lady Hale outlines at paragraph 51:

“I have already held that, if justification is possible, the denial of a double bedded room cannot be justified under regulation 3(3)(d) . My reasons for doing so are equally relevant to the Convention question of whether the limitation on the right of Mr and Mrs Bull to manifest their religion was a proportionate means of achieving a legitimate aim. The legitimate aim was the protection of the rights and freedoms of Mr Preddy and Mr Hall. Whether that could have been done at less cost to the religious rights of Mr and Mrs Bull by offering them a twin bedded room simply does not arise in this case. But I would find it very hard to accept that it could”.
 
Conclusion
This is a significant Judgment for Employment lawyers dealing with discrimination claims given its consideration of the competing rights of two different groups of people.  Although focusing on the Equality Act (Sexual Orientation) Regulations 2007, the provisions are also contained in the Equality Act 2010 and therefore of relevance now. One key thing to take away from this Judgment is that it isn't restricted to businesses like that of Mr and Mrs Hall but is applicable to all suppliers of goods, facilities and services.

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