Marital Status Discrimination – An Update
In terms of the Equality Act 2010, it is unlawful direct discrimination where, because of a protected characteristic, a person (A) treats another person (B) less favourably than A would treat others. There are nine protected characteristics:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
Reported cases in relation to marriage and civil partnership discrimination are fairly rare and it is often an overlooked protected characteristic. The recent Employment Appeal Tribunal case of Ellis v Bacon and Advanced Fire Solutions Ltd serves as a useful reminder of its application and relatively narrow scope.
Background
Ms Bacon joined Advance Fire Solutions Ltd (AFS Ltd) as a bookkeeper in 2005. She later married Jonathan Bacon (JB), the company’s managing director and majority shareholder, and became a director and shareholder herself. Mr Ellis became managing director in 2017, but JB continued to be a majority shareholder. That year, Ms Bacon commenced divorce proceedings against JB. As part of those proceedings, JB made false accusations against her that she had misused company IT. As a result of these allegations, Ms Bacon was subjected to unfair treatment, suspended and ultimately dismissed by Mr Ellis. Ms Bacon raised an Employment Tribunal claim including unfair dismissal and unlawful discrimination on the grounds of her marital status.
ET decision
The Tribunal found that Mr Ellis had sided with JB in the marital dispute and that was a factor in him dismissing Ms Bacon. The Tribunal concluded that Mr Ellis distanced himself from Ms Bacon following her separation from JB and that she was unlawfully discriminated against on the grounds of her Marital status. Mr Ellis appealed.
EAT decision
The EAT allowed the appeal. The EAT found that the ET had focussed on Ms Bacon’s marriage to JB rather than the fact she was married. The question for the ET was whether an unmarried woman whose circumstances were otherwise the same as hers (i.e. being in a close relationship with Mr Bacon) would have been treated differently, which was not satisfied.
Practical implications
This case serves as a useful reminder that the question to ask in cases of potential marital status discrimination is whether the individual was treated unfavourably by virtue of their marriage status in isolation (and not because of their marriage to a particular person).
It is all too common for the waters to become muddied in employment disputes where emotions, relationships and families are involved. Employers should take some comfort in this reminder of the fairly narrow scope of marital status discrimination, however, the risk of claims (and the associated management time and financial cost required to deal with these) still exists.
To assist in resisting any claims, employers should clearly document the basis for any decisions made in relation to the ongoing employment of their staff. Employers could also consider implementing a relationships at work policy.
Please contact our specialist employment team if you would like to discuss any aspect of this blog.
This update contains general information only and does not constitute legal or other professional advice.
Laura Salmond, Partner & Accredited Specialist in Employment Law: lis@bto.co.uk / 0141 225 5315 / Connect with Laura
