In a recent decision of the Workplace Relations Commission (WRC) it was found that a Dublin bakery did not discriminate by refusing to bake a cake containing the words, “gay marriage is a perversion of equality”. The man who placed the order with the bakery took a case under the Equal Status Acts after the decision in the Belfast case of Ashers bakery. The Court found Ashers bakery had discriminated against the customer by refusing to make a cake with a pro-gay-marriage message.

The complainant in the instant case described the Ashers case as, what he believed to be, relevant case law with the roles reversed. Further, he stated that he wanted to balance out the Asher’s bakery case, saying, “Why should the law favour people of a gay orientation and not deal with me the same way”. The requested wording read, “BY THE GRACE OF THE GOOD LORD, I (name redacted), ORIGINALLY OF (address redacted) and c/o (other addresses redacted) that in my honest opinion – “GAY MARRIAGE” IS A PERVERSION OF EQUALITY and the 34th Amendment to the Irish Constitution should be REPEALED”.

The Adjudicator asked the complainant why he had included the address of the bakery in the message: He replied that he used to live in the building the shop now occupies and including that address (and that of a nearby historical site) in his message was for “personal and existential reasons”.   I asked the Complainant if the cake was viewed by the public (on social media platforms or elsewhere), might they associate the shop and/or its’ owners with the message being expressed and he replied that it was not his intention to confuse people as to whose religious beliefs were being expressed.

The bakery responded by saying they were exceptionally busy and had closed their books to bespoke cakes. They offered to bake the cake, suggesting the topping be made elsewhere. The Managing Director (MD) of the bakery wrote to the complainant stating, inter alia, that the decision was a commercial one. The legal representative for the respondent bakery contended the claim was vexatious. The complainant contended that the bakery had never intended to complete the order and their refusal to do so amounted to unfair treatment on religious grounds.

At hearing, the MD of the bakery stated that they were at no stage aware of the complainant’s religious affiliations, the order was complicated and at the time their books were closed to further bespoke cakes.  Others were similarly refused and evidence (email) was available to support this. The Adjudication Officer asked the MD of the bakery if the requested wording was the real issue, to which the MD responded saying the bakery had not moved beyond the initial consideration of the cake.  He stated that the complainant must prove that he had been treated less favourably than another person as a result of his religious beliefs.

The complaint failed as prima facie evidence had not been heard to show the bakery had discriminated against the complainant on the religion ground.  In this case there were non-discriminatory related reasons for the refusal.

Consideration of the Basis of the Claim

The complainant asserts that his opening words in respect of God indicate his intent was religious although it does not refer to any particular religion and such a phrase could be relevant to many religions.  Overall the message appears political in nature, as mentioned by the Adjudicator, and indeed for some it could be objectionable on that basis which is unrelated to any of the grounds.  However, the complainant appears to have taken a case on the religion ground to object to issues relating to the sexual orientation ground using what is a largely political message not focused on either ground.

Given the manner of the making of the order, including the complainant taking pictures of staff when he first ordered the cake and the apparent nature of the subsequent emails from him to the bakery, it is possible that a refusal to serve him on the basis of that behaviour is within their entitlement.  Indeed, this might be considered in accordance with section 15(1) of the Acts.