In the recent case of Ellis v. Bacon, the Employment Appeal Tribunal (EAT) held that a tribunal had erred in finding that an employee had been directly discriminated against because of marital status. The EAT held that the tribunal had failed to consider the correct hypothetical comparator.
Marriage and civil partnership discrimination
Marriage discrimination was initially introduced by the Sex Discrimination Act 1975 in response to increasing awareness that employers were dismissing women when they got married. It was designed to protect married people from being treated less favourably, on the ground of their marital status, compared with people who were not married.
Marriage and civil partnership are now protected characteristics under section 4 of the Equality Act 2010.
Direct marriage or civil partner discrimination occurs when:
- a person (A) discriminates against another (B) because of marriage or civil partnership; and
- A treats B less favourably than A treats or would treat others because it is B that is married or a civil partner.
The protected characteristics of marriage and civil partnership have been misunderstood in some previous cases. In particular there are two conflicting EAT decisions which considered whether a female employee was treated less favourably because she was married or because of the identity of the person to whom she was married.
In Dunn v. Institute of Cemetery and Crematorium Management, a female employee brought a claim for direct marriage discrimination because of treatment she had received due to her relationship with her husband. The tribunal rejected her claim because the poor treatment was not on the basis of her being married but because she was married to a particular individual. The EAT held that the tribunal had erred in this decision, stating that while the employee might have been treated in the same way had she been in a close relationship other than marriage with the individual, this would not defeat a marriage discrimination claim. This decision moved away from the legislative test and seemed to focus instead on the fact of her close relationship with a particular individual.
This approach was discredited in the subsequent case of Hawkins v. Atex Group Ltd and others. In this case, the scope of the protection provided by marriage discrimination legislation was found to be intentionally narrow. The EAT held that the key question is whether the claimant suffered the treatment complained of because she was married to the man in question, as expressed in legislation. It was held that a suitable comparator would be someone in a hypothetical relationship with the claimant’s marital partner that equates to marriage but is not (e.g. a “common-law spouse”).
Ellis v. Bacon
This was the legal background to the new case. Ms Bacon was a director and shareholder of Advanced Fire Solutions Ltd (AFS), while her husband, Mr Bacon, was its managing director and majority shareholder. In August 2017, Ms Bacon told Mr Bacon that she wished to separate and an acrimonious divorce followed. Ms Bacon was falsely accused of misusing company IT following which she was suspended and then dismissed by Mr Ellis who had been appointed managing director of AFS in 2017 as Mr Bacon’s successor while Mr Bacon remained the majority shareholder. An employment tribunal found that Mr Ellis’s dismissal of Ms Bacon amounted to less favourable treatment because of her marital status, as it was a direct result of Mr Ellis’s allegiance to Mr Bacon in the couple’s divorce proceedings.
Mr Ellis appealed the decision and was successful for two reasons that reflect the decision in Hawkins. First, the tribunal had not applied the correct statutory test by asking whether Mr Ellis had treated Ms Bacon less favourably because she was married to Mr Bacon, rather than just because she was married. Secondly, the tribunal had erred in failing to identify the correct hypothetical comparator. As set out in Hawkins, this would be an individual who, while not married to Mr Bacon, was in a relationship that equates to marriage with him.
Ellis v. Bacon confirms that the approach taken to direct marriage and civil partnership discrimination in Dunn was too wide and that the narrow test set out in legislation should be applied. The decision therefore demonstrates how limited the protection is for discrimination on the grounds of marital status, even where the tribunal agrees that the claimant has been badly treated. It is a reminder of the original reasoning behind the protected characteristic as it serves to protect those who are treated less favourably because they are married, rather than because of the person to whom they are married.