Marital status discrimination is one of the lesser-known characteristics protected from unlawful discrimination; therefore, a person who is married or in a civil partnership is protected against unlawful discrimination based on their legal partnership status.
It should, however, be noted that the status of being unmarried or single is not protected, nor are people who intend to marry or form a civil partnership, or who have divorced/dissolved their civil partnership.
In Ellis v Bacon and another , the Employment Appeal Tribunal (EAT) allowed an appeal against an employment tribunal’s decision that an employee was discriminated against because of her marital status. The tribunal had not asked whether the fact that Mrs Bacon was actually married to the employer’s majority shareholder, rather than the closeness of their relationship, caused the less favourable treatment in question, or whether an unmarried woman whose circumstances were otherwise the same as the employee’s, including being in a close relationship with the majority shareholder, would have been treated differently. The tribunal’s assertion that the reason for the unfavourable treatment was that the employee was married was not, in all the circumstances, sufficient, particularly when the fact of being married was mixed up with various other factors.
Mrs Bacon joined AFS Ltd as a bookkeeper in 2005. She thereafter married JB who was AFS Ltd’s managing director (MD) and majority shareholder. She became a director and shareholder in 2008. JB was replaced as MD in August 2017 but continued to be the majority shareholder. That same month, Mrs Bacon confirmed that she wished to separate, which led to acrimonious divorce proceedings. False allegations were raised that she had misused company computer equipment and a wholly baseless complaint was made to the police. Her directorship was removed, and her dividends were unpaid. She was ultimately dismissed by a letter signed by the replacement MD, Mr Ellis. She, therefore, brought an employment tribunal claim against Mr Ellis for direct discrimination on the ground of her marital status. The tribunal upheld her claim and found that Mr Ellis had sided with JB in relation to the marital dispute and was compliant with him in removing Mrs Bacon’s directorship, not paying her dividends, reporting her to the police, and suspending and dismissing her on false grounds. In its view, these actions involved less favourable treatment by Mr Ellis against Mrs Bacon because of her marital status as wife to JB. Mr Ellis appealed to the EAT.
The EAT held that where the reason for the less favourable treatment consisted of both the fact that the claimant was married and the identity of her husband, it was imperative that the fact that they were married rather than simply in a close relationship was part of the ground for the employer’s action. Since there was no prospect of the claimant (in this case) being able to establish that the respondents were motivated specifically by the fact that she and her husband were married rather than simply by the closeness of their relationship, it was correct to strike out the claim.
The issue in this case, therefore, was whether Mr Ellis treated Mrs Bacon less favourably because she was married. The question was not whether she was badly treated because she was married to a particular person. Another way of looking at the issue was to ask whether an unmarried woman whose circumstances were otherwise the same as hers, including being in a close relationship with JB, would have been treated differently. The tribunal had failed properly to address this issue. The bare assertion that the reason for the unfavourable treatment was that Mrs Bacon was married was not enough, especially when the fact of being married was mixed up with other considerations, such as Mrs Ellis’ future with the company and JB ‘pulling Mr Ellis’ strings’. The EAT, therefore, allowed the appeal, but ‘with a very heavy heart’, stating that Mrs Bacon had been very badly treated by Mr Ellis, among others at the Respondent.
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