But judges fail to agree whether it was a case of direct or indirect discrimination under the Equality Act
In the case Bull and Bull v Preddy and Hall the Supreme Court considered a claim for discrimination brought by a homosexual couple prevented from sharing a double room in a hotel. This was not an employment case, although the law on discrimination is the same.
The case involved three legal issues. The first was whether the hotel’s policy was direct discrimination under the Equality Act (Sexual Orientation) Regulations 2007 (now superseded by the Equality Act 2010, although that is not material). The second was whether this policy amounted to indirect discrimination, which could not be justified. The final issue was the extent to which the legislation ought to be interpreted to take into account the human right of the hotel’s owners to practise their religion.
Facts
The Bulls were committed Christians and, in accordance with their beliefs, had a policy of allowing only heterosexual married couples to share a double room at their hotel. Anyone could stay in a single or twin room. Preddy and Hall were civil partners. In 2008 they arrived at the hotel and were informed of this policy. They left and sought alternative accommodation.
Court of Appeal
The couple successfully brought a claim against the hotel for direct sexual orientation discrimination before Bristol County Court, and were awarded £1,800 each in damages for injury to feelings. The Court of Appeal unanimously upheld this decision, reasoning that the restriction imposed by the hotel amounted to direct discrimination. This was because the requirement that a couple should be married was necessarily linked to heterosexual orientation as homosexual couples could not at this time marry.
Supreme Court
The Supreme Court ruled, by a majority of three to two, that the policy amounted to direct discrimination. The court was unanimous in its decision that the policy amounted to indirect discrimination, which could not be justified, and also that human rights legislation did not assist the hotel owners.
Comment
While exceptions to the discrimination legislation are allowed for religious organisations such as church youth groups, these do not benefit religious individuals. It is also clear that the courts will take a strict line on non-religious organisations trying to exempt themselves from discrimination law. An employer trying to justify indirect discrimination, or to argue for a human rights exception to the law, is likely to be given short shrift.
What is most interesting about this case is the split within the court over whether the hotel’s policy amounted to direct or indirect discrimination. On the face of it, it would appear to be indirect as Preddy and Hall were not discriminated against because they were gay, but because they were not a heterosexual married couple - a criterion that would also exclude non-gay people. But as one judge explained, it is important to focus on the criterion employed by the hotel. It required a couple sharing a room not only to be married, but to be in a heterosexual relationship, which meant that a same sex couple married under a foreign jurisdiction, for example, would also have been refused a double bed.
The judge used the analogy of a hotel which reserves double beds for married couples over the age of thirty, a requirement that would directly discriminate against a married person on the grounds of age. However, two of the justices argued this was a case of indirect discrimination only; a different finding would change the normal and well-established distinction between direct and indirect discrimination.
Anna Macey is a barrister at Kings Chambers
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