Not in my house you don’t! Bed and Breakfast and the Sexual Orientation Regulations
Meredith Hurst Wednesday, August 7, 2013
You may have personal experience of holidays that could well feature on a television programme called 'holidays from hell'. Well this case concerns a bed and breakfast business that was less than welcoming to same-sex couples.
In the case of Black v Wilkinson,the Court of Appeal has held that Mrs Wilkinson's bed and breakfast business discriminated against a same-sex couple contrary to the Equality Act (Sexual Orientation) Regulations 2007. As the case concerns the provision of goods and services it falls outside the usual Employment Tribunal regime. It was heard in the County Court in the first instance and then the Court of Appeal but it is illuminating nonetheless as it highlights how the Courts generally are prepared to interpret the regulations when considering the delicate tensions that between those manifesting certain religious beliefs and the right to a private life.
Mrs Wilkinson's primary reason for running the business was financial, although she provided a personalised service and special care and attention to her guests. As a committed Christian she believed that sexual relations should only occur within heterosexual marriage. As a matter of policy she sought to restrict the sharing of double beds to married heterosexual couples, although in practice it was not always possible to determine whether a heterosexual couple was married. She never allowed couples of the same sex to share a double room and never knowingly allowed an unmarried heterosexual couple to do so.
The Claimants were same-sex partners who were not in a civil partnership. They had made a booking at Mrs Wilkinson's bed and breakfast and when they arrived she refused them accommodation. She did not like the idea of two men sharing a bed and refunded their deposit. The Claimants alleged that Mrs Wilkinson unlawfully discriminated against them in the provision of bed and breakfast facilities.
The case proceeded to the Court of Appeal and the issues the Court had to consider were as follows:
1. Was Mrs Wilkinson's house a 'boarding house' or similar establishment within the meaning of the regulations?
2. Was this a case of direct discrimination? In other words did Mrs Wilkinson treat the Claimants less favourably than she would treatthose in a heterosexual relationship?
3. If the case was not one of direct discrimination did Mrs Wilkinson indirectly discriminate on the grounds of sexual orientation byapplying a criterion or practice which placed same-sex couples at a substantial disadvantage compared with heterosexual couples.In other words was the practice of refusing double bedrooms to same-sex couples more likely to discriminate against those insame-sex relationships than heterosexual couples.
The Court held that the bed and breakfast business was a boarding house. Therefore it came within the remit of the regulations in the provision of goods and services.
As a result of an earlier case called Preddy by which it was bound, the Court reluctantly found that this was a case of direct discrimination. Without Preddy, the Court would have held that there was no direct discrimination against a same-sex couple on the ground of their sexual orientation, since there were other unmarried couples who would also be denied accommodation on the ground that they too were unmarried.
The test of indirect discrimination was satisfied because although not all married heterosexual couples were allowed to stay in a room, some at least were.
Mrs Wilkinson sought to justify the criterion of practice of refusing same-sex couples a double bedroom. She asserted her Christian beliefs and her rights of enjoyment of her home. She asserted that her beliefs justified the prohibition that she proposed on same-sex couples.
The Court observed that neither religious belief nor sexual orientation trumps the other. In a balancing exercise, the Court took into account the impact on Mrs Wilkinson upholding that her policy was contrary to the regulations. Although a restriction on her to run her business as she chose might be commercially damaging to her (as she would not be able to offer double rooms to everyone) she had not put any evidence before the Court of the likely financial effect of such restriction on her.
This decision may not come as a surprise against the backcloth of other cases reported recently which deal with those holding Christian beliefs. The message here however is that religious beliefs do not automatically exempt service providers from observing the laws on equality. That is not to say that those beliefs must always give way on questions of sexual orientation. Black v Wilkinsondoes not exclude the possibility that the financial impact on an existing business may be relevant to justification if appropriate evidence is available.
On a lighter note, next time you consider booking a bed and breakfast make sure there are no hidden catches.