Defendants running hotel - Defendants having strong religious beliefs

Hall and another v Bull and another: Court of Appeal, Civil Division (Sir Andrew Morritt, Lord Justice Hooper and Lady Justice Rafferty): 10 February 2012

The defendants were hoteliers. They were devoutly religious. They believed that monogamous heterosexual marriage was the form of partnership uniquely intended for full sexual relations, and that both homosexual sexual relations and heterosexual sexual relations outside marriage were sinful. For that reason, they offered double-bedded rooms to married couples only, while they let single bedrooms without any restriction.

In September 2008, they refused to honour a reservation made by the claimants for a double-bedded room. The claimants subsequently brought a claim for discrimination. The judge held that the restriction operated by the defendants, of refusing double-bedded rooms to homosexual couples, constituted direct discrimination, and ordered the defendants to pay damages of £1,800 for each claimant. The judge also found that the restriction was a genuine manifestation of the defendants' religious beliefs. The defendants appealed.

The issues were whether: (i) the restriction imposed by the defendants had been direct and/or indirect discrimination; and (ii) if there had been discrimination, that restriction had nonetheless been compatible with the European Convention on Human Rights as being a result of the exercise of the defendants' own rights to manifest their religion. Consideration was given to the Equality Act 2006 and to the Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263 (the Regulations). The appeal would be dismissed.

(1) Although the defendants applied the restriction to unmarried heterosexual, as well as homosexual couples, it was still direct discrimination on grounds of sexual orientation. The reason for this was straightforward. The restriction imposed by the defendants was absolute in relation to homosexual couples but relative in relation to heterosexual couples, simply because, while the latter might be married, the former could never be. The restriction was one with which a homosexual couple was unable to comply. In those circumstances, it had to constitute discrimination on grounds of sexual orientation. Such discrimination was direct. Accordingly, there no was need to ask whether there had been indirect discrimination (see [40]-[42], [61] of the judgment).

James v Eastleigh Borough Council [1990] 2 All ER 607 applied; Ladele v London Borough of Islington [2009] All ER (D) 148 (Dec) applied; Kokkinakis v Greece [1993] ECHR 14307/88 considered; Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 considered; R (on the application of Amicus - MSF section) v Secretary of State for Trade and Industry [2004] All ER (D) 238 (Apr) considered; R (on the application of Williamson) v Secretary of State for Education and Employment [2005] 2 All ER 1 considered; Christian Institute, Re [2007] NIQB 66 considered; R (on the application of the Countryside Alliance) v A-G; R (on the application of Derwin) v A-G [2008] 2 All ER 95 considered; R (on the application of E) v Governing Body of JFS (Secretary of State for Children, School and Families, interested parties) (United Synagogue intervening) [2010] 1 All ER 319 considered.

(2) The defendants' rights to manifest their religious belief under article 9 of the Convention was circumscribed by the Regulations. It was clear from the terms of article 9(2) that the right to manifest one’s belief, as opposed to the right to hold it, was qualified by such limitations as were prescribed by law and were necessary in a democratic society for the protection of the rights and freedoms of others.

Such rights included the claimants' rights under the Equality Act (Sexual Orientation) Regulations 2007. If, as had been found, the defendants directly discriminated against the claimants, then the fact that they did so by way of a manifestation of their religious belief did not give rise to any incompatibility between their rights under article 9 and the claimants' rights under the Equality Act (Sexual Orientation) Regulations.

Under article 14 of the Convention, to which the Regulations gave effect, if the claimants' Convention rights were engaged, then the manifestation of the defendants' religious beliefs could not excuse the direct discrimination of the claimants. The Regulations aimed to ensure in a commercial context equality for all regardless of sexual orientation, and that civil partnerships were treated as is marriage for the purposes of the provision of goods, facilities and services. No individual was entitled to manifest his religious belief when and where he chose so as to obtain exemption in all circumstances from some legislative provisions of general application (see [46], [51], [63]-[65] of the judgment).

Ghaidan v Godin-Mendoza [2004] 3 All ER 411 applied; Ladele v London Borough of Islington [2009] All ER (D) 148 (Dec) applied; R (on the application of Saeedi) v Secretary of State for the Home Department [2010] All ER (D) 16 (Apr) considered; McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 considered.

Per curiam: 'Whilst the appellants’ beliefs about sexual practice may not find the acceptance that once they did, nevertheless a democratic society must ensure that their espousal and expression remain open to those who hold them. It would be unfortunate to replace legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the appellants’ beliefs); rather there should be achieved respect for the broad protection granted to religious freedom as underlined in Kokkinakis v Greece ([1993] ECHR 14307/88).

'Any interference with religious rights, specifically identified in article 9 and listed in article 14 of the Convention, must satisfy the test of "anxious scrutiny". However, in a pluralist society it is inevitable that from time to time, as here, views, beliefs and rights of some are not compatible with those of others. As I have made plain, I do not consider that the appellants face any difficulty in manifesting their religious beliefs, they are merely prohibited from so doing in the commercial context they have chosen.

'The Court of Appeal, Civil Division, in dismissing the defendant hoteliers' appeal against the judge's decision that their policy of refusing to let double-bedded rooms to unmarried heterosexual couples or homosexual couples was directly discriminatory against homosexuals, held that the finding of direct discrimination was utterly sound, and that the defendants' rights to manifest their religion was limited by the claimants' right to freedom from discrimination on grounds of their sexual orientation' (see [56] of the judgment).

Robin Allen QC and Catherine Casserley (instructed by Equality and Human Rights Commission) for the claimants; James Dingemans QC and Sarah Crowther (instructed by Aughton Ainsworth) for the defendants.