Employment Appeal Tribunal takes rare look at ‘marital status’ discrimination

In the recent case of Ellis v Bacon, the Employment Appeal Tribunal (EAT) overturned an employment tribunal’s decision that an employee had been directly discriminated against because of her marital status.

It held that the employment tribunal had used the wrong comparator when deciding that the employee had been subject to less favourable treatment.

It is relatively rare for the issue of marital status discrimination to crop up in litigation and this case provides an interesting insight into how the employment tribunals will handle these allegations in practice.

The legal bit

Marriage/civil partnership is one of the nine ‘protected characteristics’ under s4 Equality Act 2010. A person holds the protected characteristic if they are married or have entered into a civil partnership.

Direct marriage/civil partnership discrimination occurs when an employee who holds the protected characteristic is treated less favourably than others on that basis.

What happened?

Ms Bacon was a director and shareholder of Advanced Fire Solutions Ltd (AFS) and was married to Mr Bacon, the company’s managing director and majority shareholder.

In 2012, Mr Ellis joined AFS. He became a director and shareholder a year later and was appointed as managing director in August 2017.

Around that time Mr and Ms Bacon’s relationship broke down, and they went through a very difficult divorce. False allegations were raised that Ms Bacon had misused company IT, which resulted in her suspension and later to her dismissal (by way of a letter signed by Mr Ellis). A complaint was also made about her to the police which turned out to be without foundation.

An employment tribunal held that Mr Ellis had sided with Mr Bacon in relation to the couple’s divorce, and consequently had suspended and dismissed Ms Bacon unfairly and had reported her to the police without good reason. He had also failed to make payments due to her and failed to investigate a grievance she had raised. The employment tribunal found that all these actions constituted direct discrimination against Ms Bacon on the grounds of marital status, because she was married to Mr Bacon. Mr Ellis appealed against this finding of discrimination

The EAT decision

On appeal, the EAT found that the employment tribunal had incorrectly applied the test for direct discrimination.

The key question was whether Ms Bacon had been subject to less favourable treatment because she was married, not because she was married to a particular person. The identity of her husband was irrelevant. Rather it was her status as married woman that was important.

To correctly apply the law, the employment tribunal should have considered whether an unmarried woman who was otherwise in the same position as Ms Bacon would have been treated in the same way. The employment tribunal had failed to show that a woman in a close relationship with Mr Bacon but not married to him would have been treated any differently. The EAT acknowledged that Ms Bacon had been treated very badly by Mr Ellis, but unfortunately was not protected by the Equality Act 2010 on this occasion.

Comment

This decision illustrates that protection from discrimination on the grounds of marital status will be construed very narrowly by the employment tribunals. Indeed, it is very seldom raised by claimants and is pleaded far less frequently than other protected characteristics such as sex, race, or disability. In fact, the Claimant in this case could perhaps have re-framed her claim as one of sex discrimination rather than discrimination on the grounds of her marital status.

Arguably, protection on the grounds of marital status is losing its significance, now that social norms have evolved, and it is far less common than a few decades ago for couples in long term relationships to be married. The practice of dismissing women on the event of their marriage, or preferring male ‘bread winners’ to married women in recruitment have now all but died out, so the problems the legislation was intended to address appear largely to have disappeared.

However, almost 50 years after the concept of marriage discrimination was first introduced by Sex Discrimination Act 1975 (later absorbed into Equality Act 2010) the protection afforded by the legislation arguably serves a different need. For example, members of the LGBTQ+ community may still encounter discrimination or harassment on the grounds of their civil partnership status.