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Till Discrimination Do Us Part

Where someone is treated less favourably because they are married to a particular person, can they bring a claim for marriage discrimination?

Under the Equality Act 2010, marriage and civil partnership is a “protected characteristic”, meaning that a person is discriminated against where they are treated less favourably due to their marriage or civil partnership. Marriage discrimination was initially introduced in the Sex Discrimination Act 1975 due to the prevalence of employers dismissing women when they got married – the inclusion of marriage and civil partnership as a protected characteristic is intended to protect those who are married or in civil partnerships from such treatment.

In Dunn v Institute of Cemetery and Crematorium Management, the Employment Tribunal rejected Mrs Dunn’s marriage discrimination claim, on the grounds that the less favourable treatment was due to her relationship with her husband, as opposed to her being married in itself. However, the EAT held that the Tribunal had erred in this finding. They acknowledged that Mrs Dunn would likely have been treated less favourably even if she had been in a similar, non-marital relationship with Mr Dunn, but nevertheless indicated that this did not defeat her marriage discrimination claim. Instead, the EAT took the view that Mrs Dunn’s claim should succeed if she was treated less favourably because of a close relationship with Mr Dunn, irrespective of whether the pair were married.

By contrast, in Hawkins v Atex Group Ltd, the EAT held that the key question was whether the less favourable treatment was due to the claimant being married. The relevant comparator is a person who is not married, but whose relevant circumstances are otherwise the same – so, a hypothetical person in a relationship with the claimant’s spouse which is equivalent to, but is not, marriage. On the facts, the Employment Tribunal had been right to strike out Mrs Hawkins’ claim – she could not establish that her employer had dismissed her due to being married to the company’s chief executive, rather than simply being in a close relationship with him.

Recently, a third case looks to have broken the deadlock between these two decisions. In Ellis v Bacon, Ms Bacon, a director and shareholder of Advanced Fire Solutions Ltd (AFS), was married to Mr Bacon, AFS’s then-managing director and majority shareholder. Mr Ellis joined AFS in 2013, acquiring a 10% shareholding, before being appointed managing director in August 2017. That same month, Ms Bacon informed Mr Bacon that she wanted a divorce. False allegations were then brought against Ms Bacon, with a baseless complaint being raised with the police. Mr Ellis dismissed her from AFS on 29 June 2018.

The Employment Tribunal found that Mr Ellis had taken Mr Bacon’s side throughout the divorce and had treated Ms Bacon less favourably because of her marital status, in being married to Mr Bacon. The Tribunal therefore upheld her claim for marriage discrimination. Mr Ellis appealed, arguing that the Tribunal had failed to apply the correct statutory test or consider the appropriate hypothetical comparator.

The EAT agreed with Mr Ellis that the Tribunal had failed to apply the correct statutory test – the question was whether Mr Ellis had treated Ms Bacon less favourably because she was married, not because she was married to Mr Bacon. The EAT confirmed that the Hawkins case established that, where the grounds for the less favourable treatment consist of both the claimant’s marriage and the identity of their spouse, it is essential that the very fact that the claimant is married forms part of the basis for the employer’s actions.

Further, the correct hypothetical comparator was someone in a relationship with Mr Bacon akin to marriage, but who was not actually married to him. The EAT found that the Tribunal had failed to establish that someone in such a relationship with Mr Bacon would not have been treated in the same way by Mr Ellis.

The EAT’s ruling in Ellis seems to confirm that Hawkins provides the correct interpretation of the law surrounding marriage discrimination, and that Dunn should not be relied upon. As such, employees can only demonstrate marriage discrimination where they are discriminated against because of the simple fact that they are married or in a civil partnership – if a hypothetical person in a similarly close relationship with their partner, but not married or in a civil partnership with them, would not receive the same treatment, then they cannot argue marriage discrimination.

If you would like advice regarding an employee’s grievance, disciplinary, or dismissal, or you require staff training on discrimination, please get in touch at [email protected]