A month ago we posted a round-up of our first three months of blogging and noted that judgment was awaited in a case on very similar facts to those in Bull & Bull v Hall & Preddy  EWCA Civ 83 (10 February 2012). A gay couple from Cambridgeshire, Michael Black and John Morgan, had sued the owner of the Swiss Bed and Breakfast in Cookham, Mrs Suzanne Wilkinson, after she had refused on grounds of her religious beliefs to let them stay in a room with a double bed. The case had been heard at Reading County Court and Ms Recorder Moulder had reserved judgment. Her decision in Black & Morgan v Wilkinson  EW (Misc) CC (18 October) has just been handed down.
Mr Black and Mr Morgan – a couple but not civil partners – claimed in tort for breach of statutory duty under Regulation 20 of the Equality Act (Sexual Orientation) Regulations 2007 (revoked with effect from 1 October 2010 by the Equality Act 2010 but not in relation to acts occurring before that date) on the grounds that, contrary to Regulation 4, Mrs Wilkinson had discriminated against them by refusing to provide them with a double room on 19 March 2010. They argued that it was unlawful for a person providing services to the public to discriminate against a prospective customer on grounds of that person’s sexual orientation by refusing to provide that person with those services and that the Regulations applied to accommodation in a hotel, boarding house or similar establishment. In short, the claimants contended either that they had been subjected to direct discrimination contrary to Regulation 3 (1) because, on the grounds of their sexual orientation, Mrs Wilkinson had treated them less favourably than she would have treated others or that her policy of restricting access to double rooms to those who were “heterosexual and preferably married” was indirect discrimination contrary to Regulation 3 (3), because that criterion put homosexual people at a disadvantage by virtue of the fact that they could never be heterosexual or married. (paras 9 & 10).
In response, Mrs Wilkinson contended that she had been acting in accordance with her religious beliefs and in particular her belief that “monogamous heterosexual marriage is the form of partnership uniquely intended for full sexual relations between persons” and that homosexual sexual relations (as opposed to homosexual orientation) and heterosexual sexual relations outside marriage were sinful. She denied that Regulation 4 applied to her situation and relied on Regulation 6 (1):
“Regulation 4 does not apply to anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention”.
She argued that the double bedroom was in the heart of her home and that she treated guests as if they were members of the family, providing a special degree of care and attention to the guests staying in her home. Further or alternatively her refusal related to bedrooms in premises occupied by her own family and therefore the Swiss Bed and Breakfast was not “a hotel, boarding house or similar establishment” within the meaning of Regulation 4 (2) (b). She also claimed the protection of Article 8 (private and family life) and the right to manifest her religious beliefs under Article 9 (thought, conscience and religion) EHCR.
Ms Recorder Moulder found for the claimants. Mr Morgan and Mr Black had been discriminated against within the meaning of Regulation 3(1) because they had been treated less favourably by Mrs Wilkinson than she would treat others, either following the reasoning of the Court of Appeal in Bull that a homosexual couple could never be married or alternatively on the basis that Mrs Wilkinson had treated them less favourably than she would have treated an unmarried heterosexual couples in the same circumstances. Alternatively, they had been discriminated against within the meaning of Regulation 3(3) when compared to a heterosexual couple either on the basis that a homosexual couple could never be married or on the facts when compared to unmarried heterosexual couples and Mrs Wilkinson could not reasonably justify the restriction by reference to anything other than the claimants’ sexual orientation. (para 120).
The Recorder further held that Mrs Wilkinson was not exempted from Regulation 4 by virtue of the operation of Regulation 6(1), nor did the application of the Regulations to her establishment breach her rights under Articles 8 & 9 ECHR because the limitations were prescribed by law, necessary for the protection of the rights and freedoms of others and proportionate in their means and effect. (para 120).
Comment: Readers will probably be aware that Bull has been appealed to the Supreme Court and some of the discrimination cases cited in the judgment are the subject of a separate appeal to the ECtHR. In the circumstances, Mrs Wilkinson was given leave to appeal. As noted at the beginning of this post, the facts in Bull and the facts in Black are remarkably similar: the principal difference between the two cases is that in Bull the claimants were civil partners and in Black they were not. Ms Recorder Moulder took the view that the presence or absence of a civil partnership certificate was not “a determinative factor in the reasoning of Rafferty LJ in reaching her conclusion on the issue of direct discrimination in Bull” (para 39).
Almost certainly the two cases stand or fall together; and Black points up the unimportance of the presence or absence of a civil partnership certificate, because the legal regime for civil partnerships is concerned with the rights of the same-sex couple in areas such as succession and pensions rather than with their sexual relationship.