The Employment Appeal Tribunal (EAT) has confirmed in the case of Ellis v Bacon that to succeed in a claim for discrimination based on marital status, an employee needs to show they have been less favourably treated because they are married (compared to someone in a close relationship) and not because of who they are married to.
This case illustrates just how narrow the circumstances are in which an employee will succeed in a claim for marital (or civil partnership) discrimination. The decision is helpful for employers and a reminder to employees that marital discrimination cases are rarely brought and rarely won.
Background
It is unlawful for employers to discriminate against employees under the Equality Act 2010 by treating them less favourably because they are married or in a civil partnership.
To succeed in a marital status direct discrimination claim the employee needs to show they have been treated less favourably than a real or hypothetical comparator whose circumstances are similar, but who is not married or in a civil partnership.
Facts
The employee, Ms Bacon, was a director and shareholder of the employer, Advanced Fire Solutions Ltd (AFS). She was married to Mr Bacon, a former managing director of AFS and the majority shareholder.
When Ms Bacon told Mr Bacon that she wished to separate from him it triggered acrimonious divorce proceedings and her mistreatment at work. This included an unfounded complaint to the police; false allegations that she had misused company IT equipment; her removal as a director; non-payment of dividends and suspension and subsequent dismissal (by the current managing director, Mr Ellis).
Ms Bacon brought various Employment Tribunal (ET) claims against AFS, including unfair dismissal. She also brought a direct discrimination claim on the grounds of marital status against both AFS and Mr Ellis. However, the claims against AFS did not proceed as the company went into administration.
ET decision
The ET upheld Ms Bacon's claim. It found that Mr Ellis had sided with Mr Bacon and was complicit in Ms Bacon's mistreatment. He had treated her less favourably because she was married to Mr Bacon.
Mr Ellis appealed.
EAT decision
The EAT, “with a very heavy heart” and recognising that Ms Bacon had been treated very badly, allowed Mr Ellis' appeal and held that Ms Bacon had not been treated less favourably because she was married.
For Ms Bacon’s mistreatment to amount to discrimination because of her marital status, she had to be less favourably treated than a comparator who was not married to Mr Bacon. However, this (hypothetical) comparator was someone in a similarly close relationship to Mr Bacon without being married to him and who said they wanted a separation. Unfortunately there was no evidence that Mr Ellis would have treated such person any differently to Ms Bacon.
Fladgate comment
This is a helpful decision for employers (even if morally uncomfortable) as it:
- demonstrates the limited scope of marital status protection - an employee needs to show they have been less favourably treated because they are married than someone in a close relationship and not because of who they are married to; and
- confirms that protection given to marital status has not been extended beyond that intended by the Sex Discrimination Act 1975, which was to prevent employers from dismissing female employees simply because they got married.
The upshot is that the risk of marital (and civil partnership) discrimination claims arising and succeeding at Tribunal seems low.
Although it is rare for an employee to be treated as badly as Ms Bacon due to a workplace relationship, there will be times when employers need to take steps to manage employees in these circumstances to avoid allegations of undue influence or favouritism - for example, by altering reporting lines, moving employees to different teams or work areas, or restricting the more senior employee from authorising, or influencing, the other’s pay (such as salary increases or bonuses).
An employee could bring a marital or civil partnership discrimination claim in response to such actions, arguing that they were less favourably treated due to their being married to a colleague. This decision confirms that employers can defend such claims by showing it would have taken the steps even if the employee was in a close personal relationship with that colleague, rather than married to them.
That said, employers do risk other claims if they act unreasonably in such circumstances. Indeed, Ms Bacon’s unfair dismissal claim would undoubtedly have succeeded if it had been heard by the ET. There is also a risk of sex discrimination claims if a female or male employee is treated less favourably than their husband or wife or other comparator.
We recommend employers:
- have a relationship at work policy which sets out how these will be managed, including rules with which employees must comply with and steps an employer can take. Make clear that these apply equally to all employees in close relationships (including those which are non-romantic, such as family) and the reason these steps are taken;
- make sure that any steps taken to manage workplace relationships are objectively fair and applied consistently; and
- if a relationship breaks down consider allowing the employees flexibility to deal with the fall-out (for example, time off to attend mediation) and ensure managers and any other staff involved treat them professionally and fairly - without bias due to personal loyalties.
