Bull v Hall: why the Supreme Court found direct discrimination

The Supreme Court has recently dismissed the appeal by Mr and Mrs Bull ('the Appellants') against the finding of the Court of Appeal that they had discriminated against Mr Preddy and Mr Hall ('the Respondents'), civil partners, when they refused them a double room in their hotel.

The central issue in this appeal was whether a requirement in equality law not to discriminate because of sexual orientation amounts to disproportionate interference by the State in someone’s right to live according to their religious beliefs. However, the appeal also addressed an interesting debate on whether blanket policies against unmarried couples amount to direct or indirect discrimination against civil partners. The significance of this difference of course is that there is potential to justify indirect discrimination, whereas there is no scope to justify direct discrimination.

Mr and Mrs Bull had refused to honour a booking by the couple of a double room in their hotel because such rooms were reserved for ‘heterosexual married couples’ only. The hoteliers had this policy in place to uphold their religious belief in the sanctity of marriage between a man and a woman. The Respondents brought a complaint of sexual orientation discrimination in the County Court. The Judge found that the treatment amounted to direct discrimination and, even if he were wrong in that, it would amount to unlawful indirect discrimination because it was not objectively justified under the Regulations. The Appellants appealed the decision to the Court of Appeal.

They argued that they did not discriminate because of sexual orientation, but because the Respondents were not married. The Appellants pointed out that they had applied exactly the same criteria to unmarried opposite sex couples. They accepted that this policy amounted to indirect sexual orientation discrimination, but contended that it was justified by their right to freedom of religion. They said that the requirement not to discriminate on grounds of sexual orientation in the Equality Act (Sexual Orientation) Regulations 2007  imposed a disproportionate burden on their right to freedom of religion and that the Regulations were therefore incompatible with Article 9 of the European Convention on Human Rights.

The Court of Appeal decided that the case was on all fours with James v Eastleigh Borough Council :  Sir Andrew Morrit noted that heterosexuals may be married but homosexuals cannot and therefore the restriction is absolute for homosexuals but not for heterosexuals. Therefore it must constitute direct discrimination on grounds of sexual orientation.
The Court concluded that the Regulations did limit the Appellants’ right to manifest their religious belief, but they did so in a way that was necessary in a democratic society to protect the rights of others, and were not therefore incompatible with the Convention.

The finding that this treatment amounted to direct discrimination was subsequently questioned by the Court of Appeal in Black v Wilkinson.   That case concerned a same sex couple (not civil partners) who were denied a double room by a BB owner because she had a policy of restricting double rooms to married heterosexual couples, in accordance with her religious beliefs. In the leading judgment Master of the Rolls, LJ Dyson, said that the only material factor was whether or not the couple were married. That there was an absolute bar on homosexual couples marrying, whilst heterosexual couples were free to marry, was not relevant . He considered that a policy which was applied to all unmarried couples constituted indirect discrimination. However, as he was bound by the previous CA judgement in the Bulls’ case, he reluctantly held that the treatment of Mr Black and Mr Morgan amounted to direct discrimination.
Inevitably, the question of whether the requirement to be married amounted to direct or indirect discrimination was examined in detail in the Supreme Court in Mr and Mrs Bulls' appeal. With a 3:2 majority, the Court concluded that denying civil partners a service because they are unmarried amounts to direct discrimination.

Giving the leading judgment, the Deputy President of the Supreme Court, Lady Hale, said that on considering European jurisprudence it was clear that this case was not on all fours with James v Eastleigh BC because although all same sex couples were denied, so too were some opposite sex couples .  However, Lady Hale regarded the fact that Mr Preddy and Mr Hall were civil partners as significant when determining whether the treatment amounted to direct discrimination as the Sexual Orientation Regulations stipulated that people who are married and those in a civil partnership are in materially the same position.

She therefore had difficulty in seeing how discriminating between married and civilly partnered people could be anything but direct discrimination on grounds of sexual orientation. She noted that the principal purpose of both institutions is to provide a legal framework within which stable and committed adult relationships can flourish. However, as marriage is only open to heterosexuals and civil partnerships are only open to same sex couples both institutions were 'indissociable' from the sexual orientation.  Moreover, applying a criterion that Mr Hall and Mr Preddy’s relationship was not that of one man and one woman was indistinguishable from a criterion based on sexual orientation. She noted that their revised policy made clear that they would have denied a double bed to a same sex couple who were married under foreign law.  She therefore found direct discrimination.

Lady Hall also considered indirect discrimination. The Bulls accepted that their treatment of Mr Hall and Mr Preddy amounted to indirect discrimination but argued that it was justified. The question for the court was therefore whether it could reasonably be justified by reference to matters other than sexual orientation.

The Appellants argued that they should not be compelled to allow unmarried couples to share a bed because they regard sex outside marriage as a sin. Lady Hale thought that a belief that sexual intercourse between civil partners was sinful could only relate to their sexual orientation. Further, she noted that the purpose of the Sexual Orientation Regulations was to ensure that those of homosexual orientation were treated equally with heterosexuals when accessing goods, facilities and services. Parliament had made exemptions for religious organisations and ministers of religion, but had not inserted a general conscientious objection clause. Lady Hale concluded that Regulations were not intended to go further than those exemptions.

She then went on to consider the Human Rights Act and noted that the right to religious freedom is one of the foundations of a democratic society, but that it could be limited to protect the rights of others. Lady Hale accepted the Appellants’ argument that, at least in some cases, consideration of reasonable accommodation of beliefs was part of the assessment of determining whether the right to manifest faith had been interfered with disproportionately. However, Lady Hale concluded that the Appellants could not get around the fact that UK law prohibits them from treating the Respondents less favourably than a married couple. The question of whether it could be done at less cost to the religious rights of the Appellants simply did not arise in this case she said.

Lady Hale reiterated that sexual orientation is a core component of a person's identity which requires fulfilment through relationships with others of the same orientation and referred to the Strasbourg principle that 'very weighty' reasons are required to justify discrimination on grounds of sexual orientation. She concluded that the Court should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals was a disproportionate limitation on their right to manifest their religion. She observed that the Appellants were free to manifest their religion in many other ways in providing the service, for example, via the symbolism on their stationery, decorative items in the hotel, provision of bibles etc. She rebutted the contention that this was a question of legal oppression of one community (homosexual couples) with the legal oppression of another (those sharing the Appellants' beliefs). She said that, had the situation been reversed and the Respondents had run a hotel which denied a double room to the Appellants whether due to their faith or sexual orientation, they would have found themselves in the same situation as the Appellants were now.

Lord Kerr and Lord Toulson agreed with Lady Hale’s conclusion that the treatment of the Respondents amounted to direct discrimination. The President of the Supreme Court, Lord Neuberger, and Lord Hughes, however, found that the policy did not amount to direct discrimination as it was also applied to unmarried heterosexual couples.  

All of their Lordships agreed with Lady Hale, that if she was wrong in finding direct discrimination, the policy was nevertheless indirectly discriminatory and unjustified. The Court also unanimously agreed that the legislation prohibiting service providers from treating civil partners less favourably than married couples does not disproportionately interfere with the Convention right to manifest religious beliefs.

Jayne Hardwick
Senior Lawyer

Last updated: 07 Apr 2016