In a marriage discrimination claim, do you need to determine whether a claimant has suffered less favourable treatment because of marriage, or less favourable treatment because of a close relationship with a particular person?
What is marriage and civil partnership discrimination?
Marriage and civil partnership are a protected characteristic under the Equality Act 2010 and a person holds this protected characteristic if they are married or a civil partner.
Direct marriage or civil partnership discrimination occurs where a person (A) treats another (B) less favourably than A treats or would treat others, and the treatment is because B is married or a civil partner.
An employee claiming direct marriage and civil partnership discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.
The decision of the Employment Appeal Tribunal (EAT)
In the recent case of Ellis v Bacon and another, Mrs Bacon was a company director and shareholder who was married to the company’s managing director and majority shareholder Mr Bacon. Mr Ellis later joined the company as a director and shareholder and was appointed as managing director. The marriage between Mr and Mrs Bacon unfortunately broke down and during what were acrimonious divorce proceedings, false allegations were raised about Mrs Bacon by the company about misusing IT and she was suspended from the company and then ultimately dismissed by Mr Ellis.
Mrs Bacon claimed direct discrimination by Mr Ellis, based upon marital status. The Employment Tribunal found that Mr Ellis had taken Mr Bacon’s side over his dispute with his wife and had been compliant with the numerous detriments she had been subjected to. These detriments included the removal of Ms Bacon’s directorship, not paying her dividends, a groundless complaint about her being made to police and ignoring her grievance. The Employment Tribunal agreed with Mrs Bacon’s direct discrimination claim and held that this amounted to less favourable treatment because of her marital status. Mr Ellis appealed.
At the EAT, the decision was overturned and Mr Ellis’ appeal was allowed. The correct question was whether Mr Ellis had treated Mrs Bacon less favourably because she was married, not because she was married to Mr Bacon.
The EAT said the Employment Tribunal had failed to use the correct hypothetical comparator and should have focussed on someone who was in a close relationship with Mr Bacon but not married to him, rather than whether Mrs Bacon was married or not. The EAT said the question should have been whether an unmarried woman in a close relationship with the majority shareholder and therefore in the same situation as Mrs Bacon, would have been treated any differently, and not if the claimant was badly treated because she was married to a particular man.
The concept of marriage discrimination was initially introduced in the 1970’s under the Sex Discrimination Act 1975, as it was not unusual at that time for employers to dismiss women or ask them to resign when they got married and so the scope of this protection is intentionally narrow – designed to protect people from discriminatory treatment because of their marital status as compared with people who are not married. This case highlights that, despite the circumstances of this case and Mrs Bacon’s very poor ill-treatment, to be successful in a direct discrimination claim for marital status, the reason for less favourable treatment must be because of the fact that a person is married. A comparator needs to be used to establish whether this is what has happened – being someone in the same position – in this case in a close relationship, with Mr Bacon but not married to him. In this case the treatment was therefore not because of her marital status per se.
For advice on issues surrounding this judgment please contact a member of the Employment Team.