< Back to Need to Know - Issue 7 2013

Discrimination claim upheld for unmarried gay couple

Thu 25 Jul 2013

The Court of Appeal has somewhat reluctantly held in Black & Anor v Wilkinson [2013] EWCA Civ 820 that refusing to allow an unmarried gay couple to stay in a double room at a bed and breakfast is direct discrimination. The Court (the Master of the Rolls presiding) made it clear that if free to do so, it would have found that such discrimination was actually indirect.

Ms Wilkinson, the B&B owner, was a committed Christian who believed the bible was the word of God. She shaped her business around a very personal relationship between herself and her guests. Such hospitality was not extended to unmarried couples, however, and when unmarried gay couple, Mr Black and Mr Morgan, arrived in March 2010 having booked a double room, they were turned away on the basis that she “sought to restrict the sharing of the double rooms to heterosexual, preferably married couples”.

One of the questions before the Court was whether this was a case of direct or indirect discrimination. The original judgment had held that it was direct discrimination, following the Court of Appeal decision in Preddy v Bull [2012] EWCA Civ 83. In that case, discriminating against unmarried couples was considered to be direct discrimination against gay people because gay people could never be married.

On appeal, the Court also felt obliged to follow Preddy. Its reluctance stemmed from its reasoning that both Preddy and Black were more correctly examples of indirect discrimination. Since the facts were so similar, the two cases could not be distinguished; it also felt compelled not to overrule the previous Court of Appeal decision.

The Court examined the Equality Act (Sexual Orientation) Regulations 2007 (SI 2007/1263) (the “2007 Regulations”) which have since been repealed (and largely replaced) by the Equality Act 2010 (the “2010 Act”). Somewhat ironically, the similar wording in relation to direct and indirect discrimination means that both cases are likely to have influence on future cases decided under the 2010 Act, even though they are probably decided incorrectly.

For the purposes of the 2007 Regulations, a person discriminates against another directly if, on the “grounds of the sexual orientation” he treats a person less favourably than he treats or would treat others. On the other hand, he discriminates indirectly against gay people if he applies a provision, criterion or practice which applies equally to gay and straight people but which puts gay people at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances) which cannot be reasonably justified.

Despite following Preddy, then, the Court of Appeal in Black set out its reasoning why the cases were, in fact, examples of indirect discrimination. In both cases the proprietors believed it was sinful for gay and straight people alike to have sex outside marriage and restricted occupancy of their rooms accordingly. The Court of Appeal reasoned that it was not material to consider the reason why a person was unmarried, nor that the inability for gay couples to marry was “absolute” while straight couples had the option. The treatment was not “on grounds of the sexual orientation” but on the grounds they were not married. This put gay people at a disadvantage and could not be reasonably justified, and was therefore an example of indirect discrimination.

When even the Master of the Rolls has reservations about his own decision, it is clear how fine the line is between some direct and indirect discrimination cases.