Hall and another v Bull and another

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLady Justice Rafferty,Mr Robin Allen QC,Lord Justice Hooper
Judgment Date10 Feb 2012
Neutral Citation[2012] EWCA Civ 83
Docket NumberCase No: B2/2011/0313 AND B2/2011/0314

[2012] EWCA Civ 83

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM Bristol Civil Justice Centre

His Honour Judge Rutherford DL

9BS02095 and 9BS02096

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Chancellor of the High Court

Lord Justice Hooper

and

Lady Justice Rafferty DBE

Case No: B2/2011/0313 AND B2/2011/0314

Between:
Bull & Bull
Appellants
and
Hall
Respondent

&

Preddy
Respondent

James Dingemans QC and Ms Sarah Crowther (instructed by Aughton Ainsworth) for the Appellants

Robin Allen QC and Ms Catherine Casserley (instructed by Equality and Human Rights Commission) for the Respondents

Hearing dates: 8 th and 9 th November 2011

Lady Justice Rafferty
1

The Appellants seek to set aside the 18 January 2011 declaration of HHJ Rutherford that contrary to regulation 4(1) of the Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263, (`the Regulations'), they discriminated against the Respondents when on the 5 th September 2008 they refused to honour the latter's 4 th September 2008 booking of a double-bedded room at the Chymorvah Private Hotel ("the hotel"). The Judge found that the Respondents had suffered direct discrimination, and were he wrong as to that would have found that they had suffered indirect discrimination. Damages for injury to feelings were set at £1,800 for each Respondent.

2

The Appellants deny discrimination direct or indirect. They have over the many years of their tenure operated a policy of restricting to married couples the provision of double beds ("the restriction") a policy which, before the 2008 arrival of the Respondents, had apparently affected only unmarried heterosexual couples. The Appellants submit that since their policy is directed not towards sexual orientation but towards sexual practice there is no direct discrimination. As to indirect discrimination they accept that their policy constitutes a provision, criterion or practice which, were they to avoid a finding against them of direct discrimination, required justification pursuant to regulation 3(3)(d). At the outset of this case Mr James Dingemans QC for the Appellants candidly accepted that were the court against him on direct discrimination it would be unlikely his arguments on indirect discrimination would prevail, since the issue of justification is inevitably comprehended within his submissions as to direct discrimination.

3

The Appellants contend that they have been attempting to live and act in accordance with their religious beliefs, including the relevant religious belief that monogamous heterosexual marriage is the form of partnership uniquely intended for full sexual relations and that both homosexual sexual relations and heterosexual sexual relations outside marriage are sinful. They argue that were they obliged to offer double beds to other than married couples they could no longer run their business and the inevitability of such closure founds their argument that the Judge failed to balance their rights with those of the Respondents. They contend that their religious beliefs engage both heterosexual and homosexual sexual practices. Whether those beliefs be considered outdated, uneconomic for those operating a hotel, or both, nevertheless they submit that in the particular circumstances of this case they must be entitled to manifest them.

4

Mr Robin Allen QC, for the Respondents, supported by the Equality and Human Rights Commission, submits that the restriction necessarily excludes all homosexual couples in a civil partnership, is a plain case of direct discrimination and that the Appellants are not exempt from liability by reason of their religious beliefs. If the court were against the Respondents on direct discrimination they contend that this is indirect discrimination, the Appellants having failed to justify their treatment of the Respondents.

5

The principal issues before us were distilled as: whether there were direct discrimination on an `ordinary' reading of regulations 3(1) and 3(4); if there were, whether that reading is compatible with the European Convention on Human Rights ("ECHR") and absent direct discrimination, whether there were indirect discrimination.

6

The facts were not in issue. The Appellants let single-bedded and twin-bedded rooms to anyone, regardless of marital status or sexual orientation, but let double-bedded rooms only for occupation by a married couple, and made this plain on the hotel website. They believe that permitting unmarried individuals, heterosexual or homosexual, to share a double bed in a double room involves on their, the Appellants', part the promotion of sin. They were willing to permit homosexual and unmarried heterosexual couples to stay in the hotel in double but single bedded rooms. The Appellants were not young and were nearing retirement and for many years, both before and after the Regulations came into effect, ran the hotel with this consistently applied policy. Print media as long ago as September 1996 had publicized their stance, at least one article headed 'YOU COULDN'T MAKE IT UP' noting that the Appellants warned guests "no sex if you are single". In the Appellants' view their policy had affected many more unmarried heterosexual than it had homosexual couples. Other hotels in the vicinity were willing to provide to the Respondents a double bed. When on 4th September 2008 over the telephone the Respondent Mr Preddy booked a double room he had not seen the booking conditions. Only when the Respondents arrived on 5th September 2008 were they told of it by Mr Quinn on behalf of the Appellants. The Respondents protested, left, found alternative accommodation and were reimbursed their £30 deposit. There was no suggestion that the restriction was explained in a demeaning fashion.

The statutory framework

7

The Regulations are made pursuant to section 81 of the Equality Act 2006 and, subject to affirmative resolution, make provision about discrimination or harassment on grounds of sexual orientation. They recognise that some religious beliefs consider homosexual relationships to be wrong and as a consequence make certain exceptions for religious organisations and in relation to the occupation of property.

8

Regulation 3 – defining discrimination in the context of the Regulations – reads where relevant:

"3 Discrimination on grounds of sexual orientation

(1) For the purposes of these Regulations, a person ("A") discriminates against another ("B") if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).

(3) For the purposes of these Regulations, a person ("A") discriminates against another ("B") if A applies to B a provision, criterion or practice—

(a) which he applies or would apply equally to persons not of B's sexual orientation,

(b) which puts persons of B's sexual orientation at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances),

(c) which puts B at a disadvantage compared to some or all persons who are not of his sexual orientation (where there is no material difference in the relevant circumstances), and

(d) which A cannot reasonably justify by reference to matters other than B's sexual orientation.

(4) For the purposes of paragraphs (1) and (3), the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference in the relevant circumstances."

The effect of Regulation 3(4) is to make it clear in Regulation 3(1) that the fact that A or B is a civil partner and that the other is married is not a material difference for the purposes of Regulation 3(1).

9

Regulation–4—what is unlawful in relation to the provision of goods facilities and services – reads where relevant —

"4. Goods, facilities and services

(1) It is unlawful for a person ("A") concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate against a person ("B") who seeks to obtain or to use those goods, facilities or services—

(a) by refusing to provide B with goods, facilities or services,

(2) Paragraph (1) applies, in particular, to—……….

(b) accommodation in a hotel, boarding house or similar establishment…..…"

Regulation–6—exceptions to Regulation–4—reads where relevant:

"6 Exceptions to regulation[s] 4 …

(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."

Regulation –4—an exemption for religious organizations—reads where relevant:

"14 Organisations relating to religion or belief.

(1) Subject to paragraphs (2) and (8) this regulation applies to an organisation the purpose of which is—

(a) to practise a religion or belief,

(b) to advance a religion or belief,

(c) to teach the practice or principles of a religion or belief,

(d) to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief…."

The Regulations and the Human Rights Act 1998

10

The Appellants argue that the Regulations must be construed consistently with Articles 8, 9,14 and 17 ECHR which read as follows:—

"Article 8 Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public...

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