The pursuer (BGEA) is a charity registered in England and Wales and a limited company: its objects include supporting and extending the worldwide evangelistic mission of the US-based Billy Graham Evangelistic Association and now headed by Franklin Graham, Dr Graham's son. The defender (SEC Ltd) is a private limited company incorporated in Scotland: it operates the Hydro and is 90 per cent owned by Glasgow City Council. In July 2019, BGEA and SEC Ltd contracted for BGEA to hire the SSE Hydro Arena and Box Office in May 2020 for what was to be known as the ‘Franklin Graham Event’ – the beginning of Graham's UK tour. Although the agreement described the event as ‘private’, it was known to and agreed by SEC Ltd that it would be non-ticketed with free entry to the public. The event was part of an evangelistic outreach tour to profess and promote religion or philosophical belief: Christianity derived from an interpretation of the bible. The intended audience was the general public, irrespective of any religious belief or none, and irrespective of sexuality.
Subsequently, SEC Ltd became aware of opposition to the event in the mainstream press and social media. The objections were drawn to the attention of Peter Duthie, the defender's Chief Executive Officer and, after consulting Glasgow City Council, the SEC's board unilaterally cancelled the letting. In January 2020, the Chief Executive of Glasgow City Council wrote to the defender cancelling the booking. The BGEA sued.
In Glasgow Sheriff Court, Sheriff McCormick began the substantive part of his judgment as follows:
Mindful that this judgment may be quoted out of context I commence by stating the obvious: the Equality Act 2010 applies to all, equally. It is an Act designed to protect cornerstone rights and freedoms within a pluralist society. It applies to the LGBTQ+ community as it does to those of religion (including Christianity) and none. It follows that in relation to a protected characteristic (here: religion or philosophical belief) no section of society can discriminate against those with whom he, she or they disagree. The court was told, in terms, that it is no part of the defender's case that the activities of the pursuer were unlawful. The event on 30 May 2020 was a Christian evangelical outreach event. Whether others agree with, disagree with or even, as was submitted on behalf of the pursuer, find abhorrent the opinions of the pursuer or Franklin Graham is not relevant for the purposes of this decision. This applies even where, as I heard evidence, members within the Christian community may not agree with the pursuer. The court does not adjudicate on the validity of religious or philosophical beliefs [emphasis added].
SEC Ltd had argued that in terms of s.23 Equality Act 2010 a suitable comparator had to be identified and that the BGEA had ‘led no evidence that an appropriate comparator would have been treated differently’. He rejected that argument: although there would be many circumstances where a suitable comparator could readily be identified, that was not the case here. A pursuer was not required to provide or construct a comparator and, although in many cases a comparator might be available, to construct a hypothetical comparator ‘would be a distraction from the real issue’. Given that SEC Ltd was a service provider in terms of section 29 of the 2010 Act and ‘must not discriminate against a person requiring the service by not providing the person with the service’, no comparator was required.
He noted that in Efobi v Royal Mail Group Ltd [2021] UKSC 33, Lord Leggatt had said at paragraph [28] that ‘it did not matter if the employer had acted for an unfair or discreditable reason provided that the reason had nothing to do with the protected characteristic’. On the basis of Lord Leggatt's opinion in Efobi, SEC Ltd had been required to show that the reason for the decision had ‘nothing to do with’ a protected characteristic (here, religion or philosophical belief) of the BGEA – and it had not done so.
It was accepted that the event was a lawful evangelical outreach event. That being so, it followed ‘that the decision to cancel was a breach of the Equality Act 2010 in that the event was cancelled as a commercial response to the views of objectors’ and there was no business case defence in law. Accordingly, on that basis alone, SEC Ltd had breached the terms of s.29(2) Equality Act 2010 by terminating the provision of the service to the pursuer. Furthermore, although the concern of Glasgow City Council for people from the LGBTQ+ and Muslim communities might be understandable, that missed the point: ‘The lawful opinions of others based here on religious or philosophical belief (whether mainstream or not) are not to be preferred one over another. All are protected.’ SEC Ltd had discriminated against the BGEA on the basis of a protected characteristic for the purposes of the Equality Act 2010 and the Sheriff awarded the BGEA £97,000 plus expenses. [Frank Cranmer]
