404: Marital status discrimination: marriage status matters, not who you marry

Marriage or civil partnership discrimination can arise when an employer treats someone less favourably because they are married or in a civil partnership. In the recent case of Ellis v Bacon and another, the Employment Appeal Tribunal (EAT) considered whether a director was subjected to marital status discrimination when she was dismissed after her marriage to a colleague became acrimonious.

Mrs Bacon was a director and shareholder of Advanced Fire Solutions Ltd (AFS Ltd). She was married to the majority shareholder of AFS Ltd, who was formerly also the managing director prior to the appointment of Mr Ellis (who was also a shareholder). Mr and Mrs Bacon separated and went through an acrimonious divorce, during which false allegations were made by Mr Ellis and Mr Bacon that Mrs Bacon had misused confidential information and company IT. Mr Ellis and Mr Bacon also made a number of baseless complaints about Mrs Bacon to the police, including an allegation of theft. She was subsequently dismissed, removed as a director, and not paid dividends.

Mrs Bacon brought an Employment Tribunal claim against AFS Ltd and Mr Ellis alleging that she had been subjected to less favourable treatment on the grounds of her marital status. She claimed that Mr Ellis had sided with her husband in relation to their divorce and had dismissed her on the basis of false allegations. Her claim was upheld by an Employment Tribunal. Mr Ellis appealed to the EAT.

Upholding Mr Ellis’ appeal, the EAT ruled that Mrs Bacon was not subject to direct marital status discrimination. The Tribunal had at first instance, applied the wrong legal test and failed to consider the appropriate hypothetical comparator. The correct approach was to determine whether the less favourable treatment was solely due to being married. There is no discrimination on grounds of marital status if someone who was unmarried, but in a close relationship, would have been treated in the same way. In this case, Mrs Bacon had been treated unfavourably because of the identity of the person she was married to, not because she was married.

Prior to this decision, there were conflicting EAT cases on whether a female employee was protected where the reason for her less favourable treatment was not that she was married per se, but because she was married to a particular man. The EAT now seems to have settled the issue, confirming that the Equality Act only applies where discrimination is due to an employee’s marriage or civil partnership, rather than who their spouse or civil partner is. This is consistent with the original purpose of the legislation on marital status, which was first introduced in the Sex Discrimination Act 1975, at a time when it was not uncommon for women to be dismissed upon marriage. Unsurprisingly, marital status discrimination cases are now rare. Nonetheless, many organisations have relationship at work policies to ensure that colleagues in relationships behave appropriately and professionally both during a relationship and after it ends.