Judgment published in “gay cake” appeal

In May 2015 I reported the decision of District Judge Brownlie, sitting in the Northern Ireland County Court in Lee v Ashers Baking Co Ltd and others, otherwise known as the “gay cake case”. I pointed out at the time that the District Judge was given a very tough call in essentially being asked to rule whether, in terms of “competing discriminations” religious belief prevailed over sexual orientation.

In brief, Gareth Lee, a gay man associated with an organisation called Queerspace made an enquiry with Ashers Bakery about them making a cake with a logo on it. He was told that if he brought in a picture of the logo it could be scanned and placed on the cake. A few days later Mr Lee returned to the shop with an A4 sheet of paper showing a picture of Bert and Ernie from Sesame Street (the logo for Queerspace) with a message below which read “Support Gay Marriage”. About four days later one of the bakery owners, Karen McArthur phoned Mr Lee and told him that they could not fulfil the order because the bakery was “a Christian business”. The business owners confirmed that they considered gay marriage to be sinful. Mr Lee was refunded and went elsewhere for his cake.

In the County Court Judge Brownlie found that the bakery owners understood that Mr Lee was gay and associated with others who were gay. However, what Mr Lee wanted them to do would not require them to support or promote gay marriage. They cancelled the order for a reason that was inextricably linked to sexual orientation and Mr Lee did not share their particular religious and political opinion which confined marriage to heterosexuals. Accordingly there was direct discrimination. The Judge also found that, particularly in the prevailing political climate (concerning whether the Northern Ireland Assembly should vote on same-sex marriage) Mr Lee’s support for gay marriage was a political opinion. Since the bakery owners refused to provide the service requested they had treated Mr Lee less favourably on this basis and this also amounted to direct discrimination.

At the time I observed:
Although the judgment has led to a good deal of debate and statements by some that they will continue to act in the same way as did the Bakery in this case, this is in fact a very well reasoned judgment which reaches what has to be the correct conclusion under the law as it stands. As the judge correctly points out, if that is not what society wants then that is a question for the lawmakers rather than those who apply the law.
The bakery owners immediately announced their intention to appeal and the appeal judgment was published on 24 October.

An employee’s right to privacy – are your emails protected?

One of the most common issues encountered by employers today is whether emails sent by employees are able to be used in disciplinary proceedings against them.  Are they the private property of the employee or can an employer use them as evidence if they have an effect on their employees/the workplace?

In the case of Garamukanwa v Solent NHS Trust, an employer was recently held not to have breached an employee’s right to a private and family life (Article 8 of the European Convention on Human Rights) when they reviewed private information that belonged to the employee on the basis that the information related to work and therefore had a potential impact on the employer.

The Claimant (Mr Garamukanwa) worked as a Clinical Manager for the Respondent (Solent NHS Trust), and had formed a personal relationship with a fellow colleague, Ms Maclean.

Following the breakdown of this relationship, the Claimant then believed that Ms Maclean had started a relationship with another colleague, Ms Smith. Ms Maclean and Ms Smith subsequently received an email from the Claimant in which he advised them that unless they told their manager about their relationship, he would do it himself.

Prior to this an anonymous letter had in fact already been sent to the aforementioned manager (Mr Brown), accusing Ms Maclean and Ms Smith of ‘inappropriate sexual behaviour’ in the workplace.  Mr Brown subsequently raised these concerns with Ms Maclean and Ms Smith, who denied both having a relationship and inappropriate sexual behaviour.  Ms Maclean later advised Mr Brown about the email that herself and Ms Smith had previously received from the Claimant and stated that she felt threatened as a result of this.

Mr Brown therefore informally raised these concerns with the Claimant, who apologised for sending the email but denied being the person who had sent the letter to him.  Ms Maclean and Ms Smith were then the subject of a vendetta which consisted of the sending of malicious emails and photos to management and other members of staff, from various anonymous email addresses.  In addition a fake Facebook profile was set up and around 150 of the Respondent’s employees were added to it.  It later became clear that whoever was responsible for the vendetta was following Ms Maclean and Ms Smith, and Ms Maclean believed that the Claimant was in fact stalking her.