Our employment and family teams take a look at a recent marital status discrimination case.
Marriage & civil partnership status: the law
Marital and civil partnership status is a protected characteristic under the Equality Act 2010, which means it is unlawful for an employer to discriminate against an employee because they are married or in a civil partnership. Interestingly, this type of discrimination is not often claimed – partly due to the fact that it is no longer common practice to dismiss workers when they marry, but partly because the legislation is narrow in scope as follows:
- the status of being unmarried or single is not protected;
- the protection does not apply to anyone engaged to be married or intending to form a civil partnership; and
- as we will see from the case below – the discrimination must be based on the status of marriage (or civil partnership) and not who the person is married to.
Ellis v Bacon and Advanced Fire Solutions Ltd (In Administration)  EAT 188
The Claimant, Ms Bacon, commenced employment with Advanced Fire Solutions Ltd (AFS) in 2005. She became a director and shareholder of AFS in 2008, and in the same year married the Managing Director (MD) and majority shareholder, Mr Bacon.
In 2012 Mr Ellis joined AFS. He replaced Mr Bacon as MD in 2017, although Mr Bacon remained the majority shareholder. In August that year, the Claimant informed her husband that she wanted to separate, and acrimonious divorce proceedings followed. It seems that Mr Bacon used his power and position, through Mr Ellis, to make life at AFS difficult for the Claimant. For example, she was removed as a director, her dividends were withheld, a grievance was ignored, and false allegations of theft were made to the police. Eventually, on 29th June 2018, Mr Ellis dismissed the Claimant on the grounds of (false) allegations that she had misused company IT equipment.
The Claimant pursued claims of unfair dismissal and direct discrimination on the grounds of sex, marriage and civil partnership. The Employment Tribunal (ET) concluded that Mr Ellis had sided with Mr Bacon in relation to the marriage breakdown and had dismissed the Claimant on spurious grounds. Therefore, it held that she been dismissed on the grounds of her marriage to Mr Bacon.
The Employment Appeal Tribunal (EAT)
The EAT overturned the decision. Although it concluded that the Claimant had been treated badly, the issue was whether the ET had applied the correct test. The EAT held as follows:
- The issue is whether Mr Ellis treated the Claimant less favourably because she was married not because she was married to a particular person.
- The correct comparator in this case should in fact be someone in a close, intimate relationship with Mr Bacon (and going through an acrimonious break up), but not married to him. Would they have been treated in the same way? The detrimental treatment has to be connected to the status of marriage, not the close relationship / break up with Mr Bacon.
This case demonstrates how limited the protection is for this form of discrimination. Its purpose is to protect those who are treated less favourably because they are married, not because of who they are married to.
Whilst the Claimant was not successful in her employment claim, it is likely the actions taken by Mr Bacon would have had a consequence in the Divorce Proceedings between them.
If as a result of the Claimant’s dismissal she no longer had an income, then it is possible that the Family Court may have considered Mr Bacon should support her from his own income until such time as she were able to find alternative employment, particularly given it appears it was his actions that led to her losing her job.
In certain circumstances the Court might also consider that such behaviour is sufficiently serious to be considered as conduct that it would be inequitable to disregard in the Divorce Proceedings and again that could affect the settlement between couples in circumstances such as this.
When couples separate and they are also working together, whether that be as co-directors and shareholders or employer and employee, there can be various inter-connecting employment and family law claims which need to be addressed correctly to avoid criticism and consequences in any potential ET or Family Law Proceedings.
It is therefore important people take advice about their situation before taking any unilateral steps to dismiss employees or seek to remove them as directors or shareholders of a company.