What is marital status discrimination?

Under the Equality Act, an employer discriminates against an employee if, because of a protected characteristic, it treats an employee less favourably than it treats or would treat others. Marriage and civil partnership is one of nine protected characteristics covered by the Act.

‘Marriage’ covers any formal union which is legally recognised in the UK as a marriage. A civil partnership refers to a registered civil partnership under the Civil Partnership Act 2004. Only people who are married or in a civil partnership are protected. People who are divorced, have had their civil partnership dissolved, are unmarried or single are not protected under this ground.

An employee claiming direct discrimination because of marriage and civil partnership status will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.

The background

Ms B was employed as a bookkeeper. She married Mr B, the managing director and majority shareholder of her employer (‘the Company’). She later became a director and shareholder of the Company. Mr E subsequently joined the Company, became a director and shareholder, and was appointed managing director.

Ms B informed Mr B that she wished to separate. An acrimonious divorce followed. False allegations were made that she had misused Company IT. She was dismissed by letter signed by Mr E. A ‘wholly baseless’ complaint was made against her to the Police.

Marital discrimination

Ms B issued a claim in the Employment Tribunal, including direct marital discrimination. The Tribunal found that Mr E sided with Mr B and was compliant with him in removing Ms B’s directorship, not paying her dividends, reporting her to the police and dismissing her on spurious grounds. The Tribunal found that Mr E had discriminated against her because she was married.

Mr E appealed to the Employment Appeal Tribunal (EAT). The EAT found that Ms B was treated unfavourably and ultimately dismissed by Mr E. However, it found that the Tribunal had failed to identify the correct comparator. In this case, the correct comparator was someone in a close relationship with Mr B but not married to him. The Tribunal should have asked whether such a person would have been treated differently. As the Tribunal had not asked itself the right question, the EAT allowed the appeal. It was noted that this was done ‘with a very heavy heart’, acknowledging that Ms B was ‘very badly treated’ by Mr E, amongst others.

Comment

In a claim of direct marital discrimination, the key issue is whether the employee has been treated in an unfavourable way because they are married. In this case, that involved asking whether an unmarried woman whose circumstances were otherwise the same as Mrs B’s, including being in a close relationship with Mr B, would have been treated differently.

Ellis v Bacon and Advanced Fire Solutions Limited (In Administration)

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10 March 2023

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21 February 2023

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