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The narrow test on Marital Status Discrimination
The Employment Appeal Tribunal (EAT) in the case of Ellis v Bacon and anor confirmed that the test to be applied when dealing with marital status discrimination claims is a narrow one.
In 2005 Mrs Bacon (the Claimant) joined AFS Ltd as a bookkeeper. Shortly after, the Claimant married Mr Bacon who was the managing director and majority shareholder of AFS Ltd. In 2008 Mrs Bacon became a director and shareholder.
Mr Ellis started work with AFS Ltd in 2012 and in August 2017 he became managing director, replacing Mr Bacon who nevertheless remained the majority shareholder of AFS Ltd. In that same month, the Claimant informed Mr Bacon that she wished to separate which led to the start of bitter divorce proceedings. In January 2018 the Claimant was suspended from AFS Ltd as a result of false allegations that were raised against her. Her directorship was removed, and she was dismissed by a letter signed by Mr Ellis in June 2018.
The Claimant brought a claim for unfair dismissal and direct discrimination because of marriage. The Employment Tribunal (ET) upheld the Claimant’s claim and found that she has been treated less favourably by Mr Ellis because of her marital status as Mr Bacon’s wife.
Mr Ellis, who was personally named as a respondent, appealed.
Under section 13(4) of the Equality Act 2010, marriage and civil partnership is a protected characteristic meaning it is unlawful to discriminate against a person because of their marital/civil partnership status.
The EAT upheld Mr Ellis’s appeal “with a very heavy heart” and found that the ET had erred in addressing the issue. Firstly, the question should have been – and is – whether she was discriminated against because she was married and not because of who she was married to. Secondly, the ET failed to properly compare Mrs Bacon with ‘someone in a close relationship with Mr Bacon but not married to him and ask itself whether such a person would have been treated differently.’
This case confirms that the test used to establish a successful marital status discrimination claim is a narrow one where the existence or fact of a marriage, over and above a person being in a close personal relationship with a person, must be part of the reason for the alleged treatment. This in turn means that the protection from marital status discrimination is limited only to those who are treated less favourably because they are married and not because of who they are married to. Not surprisingly, successful marital status discrimination claims are rare as such, it is important from an employer’s perspective to be alive to the nature of a workplace relationship and how that impacts or may impact upon the handling of an employee. Notwithstanding this case, greater risk of this type of claim necessarily exist with married couples or civil partnerships in the workplace.