Discrimination

Black and another v Wilkinson: Court of Appeal: 9 July 2013

The defendant ran a bed and breakfast at her home. Of the seven bedrooms at the defendant's house, three were let out to guests. Because of her Christian beliefs, the defendant had sought to restrict the sharing of double bedrooms to heterosexual, preferably married, couples. She did not allow couples of the same sex to share a double room and never knowingly allowed an unmarried heterosexual couple to do so either. The claimants were a homosexual couple who were not in a civil partnership.

The first claimant contacted the defendant about booking a double room, she offered him the same and the first claimant sent a cheque for the deposit. On their arrival, the defendant told the claimant that there was a problem as they had booked a double room. She made it clear that she would not accommodate them because she did not like the idea of two men sharing a bed. She refunded the deposit and the claimants left.

Had two separate rooms been available, she would have allowed them to stay but in separate bedrooms. The claimant alleged that they had been unlawfully discriminated against on the ground of their sexual orientation contrary to the Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263. The recorder in the county court held that there had been such unlawful discrimination. The defendant appealed.

The issues for determination were: (i) whether the defendant's house was a 'boarding house or similar establishment' within the meaning of regulation 4(2)(b) of the regulations; (ii) whether reg 4 was inapplicable on the grounds that the case fell within the exception provided by reg 6(1)(a) of the regulations; (iii) whether there had been direct discrimination contrary to regulation 3(1) of the regulations. The court went on to consider whether, if the instant case was not one of direct discrimination, the defendant indirectly discriminated against persons on the grounds of sexual orientation by applying a criterion or practice which satisfied regulation 3(3)(a)(b) or (c) of the regulations and, if so, whether the defendant could reasonably justify the criterion or practice within the meaning of regulation 3(3)(d) of the regulations by reference to matters other than the claimants' sexual orientation.

Consideration was given to Hall v Bull [2012] 2 All ER 1017 (referred to in the judgment as Preddy v Bull). The appeal would be dismissed.

(1) There was no reason to hold that 'board' had to include more than one meal per day. The normal meaning of the word was the provision of accommodation and some food which was prepared, served and cleared away by the provider. Furthermore, a bed and breakfast establishment was similar to a hotel and boarding house in that in each of them accommodation was provided for varying periods of time and the guests received at least one meal per day (some hotels and boarding houses provided full or half board, but many only provided bed and breakfast) (see [11], [12] of the judgment).

There was no policy reason why parliament would have intended to protect individuals from discrimination on grounds of sexual orientation in relation to the provision of half board (that was bed, breakfast and one other meal) but not in relation to the provision of bed and breakfast accommodation. Regulation 4(2)(b) was concerned with protecting the rights of guests staying in commercial accommodation, not just the rights of those who had breakfast plus one other meal (see [13] of the judgment).

In the instant case, the recorder had been correct to find that a bed and breakfast establishment was capable of falling within the meaning of the term 'boarding house' in the regulations. Even if the defendant did not provide accommodation in a boarding house, in the alternative, the accommodation was in a 'similar establishment' within the meaning of reg 4(2)(b) of the regulations (see [12], [13], [60], [81] of the judgment).

Otter v Norman [1988] 2 All ER 897 applied.

(2) The recorder had been correct to reject the defendant's interpretation of the exception contained in reg 6(1) of the regulations. On a natural reading of that regulation, the exception only applied to anything done by a person who took into his home and treated as if they were members of his family 'children, elderly persons or persons requiring a special degree of care and attention'. The defendant's case had had to be that the claimants were persons who required a special degree of care and attention. However, there was no finding that that was what they had required. The fact that, if they had been accommodated by the defendant, they would have received a special degree of care and attention was immaterial (see [15], [60], [81] of the judgment).

(3) Both the recorder and the instant court were bound to follow the decision in Hall v Bull and hold that there had been unlawful direct discrimination on the ground of sexual orientation (see [23], [60], [81] of the judgment).

Hall v Bull [2012] 2 All ER 1017 criticised; James v Eastleigh Borough Council [1990] 2 All ER 607 considered; Rodriguez v Minister of Housing of the Government (2009) 28 BHRC 189 considered.

(4) Had the instant court not been bound to hold that there had been direct discrimination against the claimants, it would have held that the defendant had indirectly discriminated against gay couples on the grounds of their sexual orientation by having applied a policy which put them at a disadvantage as compared with heterosexual couples and which she could not reasonably justify by reference to matters other than their sexual orientation (see [26], [50]-[58], [60] of the judgment).

Henrietta Hill (instructed by Liberty) for the claimants. Sarah Crowther (instructed by Aughton Ainsworth, Salford) for the defendant.