"Tommy Robinson, You're Barred"
Can pub/restaurant owners refuse to serve people based on what they believe?
This weekend was a bit of an education for me and I’m very grateful to Sean Jones KC for his input on this topic.
The weekend started with the news that Stephen Yaxley-Lennon AKA Tommy Robinson and four others had been asked to leave the Hawksmoor steakhouse near London’s Piccadilly Circus, after they had already been served some drinks and starters.
The restaurant’s explanation for asking them to leave was “because guests and staff felt uncomfortable and had complained”. The bill was allegedly waived as part of the restaurant’s request for them to leave, which they did.
Yaxley-Lennon then took to social media saying, “Restaurants and businesses should not be political. We weren't loud, aggressive or inappropriate, so this can only be my politics.”
Hawksmoor’s Chief Executive has since denied that it was about politics or beliefs and reiterated its stance that guests and staff “felt uncomfortable” - a curiously vague reason given that there have been no suggestions from Hawksmoor or anyone else that the group were being loud or aggressive.
So where to start?
In the eyes of Stephen Yaxley Lennon and many on the political Right who then joined in the chorus against Hawksmoor, this inevitably touches on our old friend ‘free speech’, because it suggests that services supposedly available to all are actually limited to those whose speech the service provider approves of. Hawksmoor, the service provider in this case, has been clearly careful to steer away from such an explanation but that doesn’t mean it is not the real underlying explanation.
And most importantly: even if they did in all truth eject Yaxley-Lennon and his group because of political beliefs the restaurant disapproved of, is that morally and legally OK?
The first and most superficial support for Hawksmoor was along the lines of “it’s always been true that pubs and restaurants can refuse to serve anyone, and they don’t have to give reasons. It’s house privilege.”
That may have been true back in the days of “No Irish, No Blacks, No Dogs” - the infamous sign allegedly put up outside London Boarding houses in the1950s - but it has not been true for years, precisely because it provided a licence to discriminate in very bad ways.
A general first principle here is that one can refuse service for a ‘legitimate reason’, so long as that reason is applied equally to all customers. An easy example might be a night club refusing entry to anyone wearing jeans because that’s not in the dress code. This is legitimate. So is refusing to serve anyone who is clearly intoxicated.
The issues arise where so-called ‘protected characteristics’ come into play e.g. gender, sexuality or race. So one cannot deny service to someone who is black while continuing to serve white people - race is not a legitimate reason.
The Equality Act of 2010 brought the law together on this front, and declared the following as protected characteristics:
Age (if 18 or over)
Disability
Gender reassignment
Pregnancy and maternity
Race
Religion or belief
Sex
Sexual orientation
This has come up in a number of instances where there has been denial of service, most famously in the ‘gay cake’ legal case of Lee v Ashers Baking Company Ltd but also when Coutts Bank closed Nigel Farage’s bank accounts. In both instances, the crucial question was whether this was discrimination based on protected characteristics. In Lee’s case, both his sexuality and Ashers religious belief, and in Farage’s case (which did not go to law), his political beliefs.
Indeed it is the concept of ‘belief’ as a protected characteristic that becomes central, and this is very much the case in the Tommy Robinson-Hawksmoor incident.
‘Belief’ is a broad term that can in theory encompass almost anything, including the wild, whacky and dangerous. The law therefore draws a line.
The key case defining what might be classed as a legitimate ‘protected philosophical belief’ is Grainger plc v Nicholson - an Employment Appeal Tribunal case in 2010. This concerned a Mr Nicholson who was told he was selected for redundancy because he believed in climate change.
The judgment talked of five criteria for whether a ‘belief’ like this was protected:
The belief must be genuinely held.
It must be a belief and not an opinion or viewpoint based on the present state of information available.
It must be a belief as to a weighty and substantial aspect of human life and behaviour.
It must attain a certain level of cogency, seriousness, cohesion and importance.
It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others
The judgment found in Mr Nicholson’s favour. A number of cases have since applied the Grainger tests and certain beliefs have consequently been classed as ‘protected’, perhaps most famously the Forstater case and her ‘gender critical’ belief.
In terms of the Yaxley-Lennon incident where Hawksmoor asked him to leave the premises, the key Grainger test is very likely the fifth: whether Yaxley-Lennon has a belief that is worthy of respect in a democratic society.
Helpfully, there is established case law in precisely this area.
An employment tribunal in 2023 - Mr A Cave v The Open University - found specifically that a belief in ‘ethno-centric’ English nationalism - essentially the belief of Stephen Yaxley-Lennon, a former leader of the English nationalist English Defence League - was unworthy of respect under the fifth of the Grainger criteria.
This has since been supported by the Employment Appeal Tribunal case of Mr S Thomas v Surrey and Borders Partnership NHS Foundation Trust in 2024. Once again, a belief in English nationalism and a linked belief that there is no place in British society for Muslims or Islam became the question around whether this was a protected belief. The judgment was that it is not a protected belief, again failing the fifth criterion in Grainger.
Both of these cases are essentially about dismissal from employment, not whether an individual was refused service in a restaurant like Hawksmoor. But the underlying legal principles signal that even if Hawksmoor now admitted that Yaxley-Lennon was asked to leave because staff and/or guests didn’t like his political beliefs, he would probably be unsuccessful in winning a legal case against Hawksmoor. His ‘belief’ in English Nationalism infused with anti-Islam and anti-Muslim rhetoric is not a protected belief.
This should end the matter there, but it doesn’t. Not quite.
Following the rise of the Populist Right, the issue with modern discussions about ‘free speech’ is that it’s not really about free speech as parliament and the law define it. It is about pushing back the boundaries of any/all constraints on free speech - constraints that have been captured in law over the years, precisely because we don’t want to return to a world of pure self-policing. A world of ‘No Irish, No Blacks, No Dogs’.
There are some legitimate and interesting questions about freedom of expression, its scope and limits. But in a modern, mixed-ethnicity society, that is not it.
I’m also very grateful to Steve Peers and to Bluesky user Snigdha for their pointers on this subject.