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EAT: Does less favourable treatment because of marriage to a particular person constitute marriage discrimination?

13 January 2023

In the recent case of Ellis v Bacon the Employment Appeal Tribunal ("EAT") considered the rare issue of whether an employee was discriminated against because of their marital status.

Legal background

Employers cannot discriminate against employees (including workers and job applicants) due to the reasons listed in the Equality Act 2010 ("the Equality Act"). Such reasons are known as protected characteristics. One of the identified protected characteristics under the Equality Act is marriage and civil partnership.

The Equality Act makes it clear that a person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner. If so, they are protected under the Equality Act from direct discrimination i.e. being subjected to less favourable treatment because of the protected characteristic. 

When deciding whether an employee has been directly discriminated against on this ground, the treatment against the employee must be compared with another actual or hypothetical person in a similar position but who is not married or in a civil partnership. 

Facts

Ms Bacon joined Advanced Fire Solutions Ltd ("AFS") as a bookkeeper in 2005 and became director and shareholder of the company in 2008.  Later that year, she married the managing director and majority shareholder of the company, Jonathan Bacon.

In August 2017, Mr Bacon was replaced as managing director by Mr Ellis, but continued to be the majority shareholder.  That same month, Ms Bacon told Mr Bacon that she wished to separate and this triggered acrimonious divorce proceedings.

False allegations were raised against Ms Bacon in that she had misused company IT and an unfounded complaint was made to the police.  AFS removed Ms Bacon as director and did not pay her dividends.  In January 2018, AFS suspended Ms Bacon and she was subsequently dismissed by way of letter signed by Mr Ellis on 29 June 2018.

Ms Bacon brought a claim in the Employment Tribunal for direct discrimination on the grounds of marital status, together with some ancillary claims.

Employment Tribunal

Ms Bacon's claim for direct discrimination on the grounds of marital status was successful in the Employment Tribunal.  It found that Mr Ellis had sided with Mr Bacon during the marital dispute and was compliant with him in removing Ms Bacon's directorship, not paying her dividends, reporting her to the police and suspending and dismissing her on false grounds.  It also found that Mr Ellis believed everything he was told by Mr Bacon and that Mr Bacon was "pulling the strings".  The Tribunal held that these actions involved less favourable treatment by Mr Ellis against Ms Bacon because of her marital status as wife to Mr Bacon and therefore found that direct discrimination had occurred.

Mr Ellis appealed to the Employment Appeal Tribunal (EAT).

EAT

The EAT upheld Mr Ellis' appeal. 

Whilst it acknowledged that Ms Bacon had been treated very badly by Mr Ellis and others at AFS, the EAT found that this treatment was not because she was married.  The correct legal question to ask, and what  the Employment Tribunal should have considered, was whether Mr Ellis treated Ms Bacon unfavourably because she was married.  The question is not whether she was badly treated because she was married to a particular person.  In other words, the test to consider was whether an unmarried woman whose circumstances were otherwise the same as Ms Bacon's, including being in a close relationship with Mr Bacon (but not married), would have been treated differently.  The EAT found that the Employment Tribunal failed to address this test properly and did not construct the appropriate hypothetical comparator. Therefore the EAT, with reluctance, held that the appeal had to be allowed.  

Comment

This case confirms that the Equality Act is limited to protecting employees from discrimination because they are married and not because of who they are married to.  It also confirms that the appropriate hypothetical comparator is someone in a close relationship but not married and that the Tribunal must consider whether such a person would have been treated differently.  Therefore it is not surprising that in modern times one of the least claimed grounds of discrimination is marriage and civil partnership and successful discrimination claims on this ground are rare.

If individuals feel they have been discriminated against on the grounds of marital status or civil partnership, they should ask themselves whether the unfavourable treatment was due to them being married or in a civil partnership (to or with anyone) or because of their close relationship (which can include marriage or civil partnership) with a particular person. If the latter, then it is unlikely that discrimination due to marital status would have occurred, using the test laid down by the EAT in this case.

Authored by Megan Dickenson

Further Reading