In the recent alleged marital discrimination case of Ellis v Bacon & Advanced Fire Solutions Ltd, the Employment Appeal Tribunal (EAT) held that the Employment Tribunal had failed to apply the correct legal test in finding that Ms Bacon had been directly discriminated against because she was married. Acknowledging the sad facts of the case and the poor treatment suffered by Ms Bacon, the EAT held with “a very heavy heart” that the correct legal test that the Employment Tribunal ought to have considered was whether Ms Bacon had been treated less favourably because she was married, and not because she was married to Mr Bacon.
This case illustrates the narrow legal protection afforded by the protected characteristic of marriage and civil partnership, and serves as a useful reminder to employers of the distinction between close relationships vs marriages and civil partnerships.
Ms Bacon joined Advanced Fire Solutions Ltd (AFS) as a bookkeeper in 2005. In time, Ms Bacon became married to Mr Bacon, managing director and majority shareholder of AFS. Ms Bacon was allotted shares in AFS and appointed to the board of directors in 2008. In 2012, Mr Ellis joined AFS and in 2013, he replaced Mr Bacon as managing director and became a minority shareholder of the company.
In 2017, Ms Bacon informed Mr Bacon that she wished to separate, which led to very acrimonious divorce proceedings. Mr Ellis sided with Mr Bacon in relation to the marital dispute. False allegations were made against Ms Bacon that she had misused company IT systems and a wholly baseless complaint against her was filed with the police. Ms Bacon was removed as a director of AFS, denied monies owed to her through dividend payments and share loan repayments, and her employment at AFS was ultimately terminated on what the Employment Tribunal deemed to be “spurious grounds”.
Ms Bacon brought a claim against Mr Ellis as managing director of AFS in the Employment Tribunal (ET), arguing that she had been directly discriminated against because she was (or had been) married to Mr Bacon.
Marriage and civil partnership is a protected characteristic under Section 4 of the Equality Act 2010. A person holds the protected characteristic of marriage and civil partnership if they are married or a civil partner (section 8).
To establish direct discrimination, a claimant must show that they have been treated less favourably in some way than their employer has treated a real comparator, or would treat a hypothetical comparator. This comparator must be an individual whose “circumstances” are not materially different to the claimant’s, save that, unlike the claimant, the comparator is not in a marriage or civil partnership.
In previous marital discrimination cases, the Employment Tribunal has reached inconsistent decisions when considering whether a claimant can establish a claim for direct discrimination where they have been treated less favourably not simply because they are married per se, but because they are married to a particular person. In Dunn v Institute of Cemetery and Crematorium Management, the EAT moved away from a strict interpretation of the statute and suggested that Mrs Dunn’s claim should succeed because of her close relationship with her husband, which just so happened to be a marital relationship. However, this decision was later criticised by the EAT in the case of Hawkins v Atex Group Ltd and others, which found that the key question to be asked was whether the claimant suffered the less favourable treatment because she was married, not because she was married to the man in question, specifically.
At first hearing, the ET found that Mr Ellis had sided with Mr Bacon in relation to the marital dispute and had been “compliant” with Mr Bacon’s less favourable treatment of Ms Bacon. In the context of the allegation of withheld dividend payments, the ET stated “there is no adequate explanation for Mr Ellis, the inference being that it was because of the claimant’s marital status to Mr Bacon and the claim is therefore well founded”. In relation to the failure to make share loan repayments to Ms Bacon, the ET stated “Clearly that is less favourable treatment. What is the reason for it? The claimant being married to Mr Bacon. There is simply no other reason advanced by Mr Ellis other than the fact he was doing so because they were married and in the middle of a separation”.
Overall, the ET found that Ms Bacon’s claims against Mr Ellis personally for direct marital discrimination were well founded.
Employment Appeal Tribunal
Mr Ellis brought an appeal, arguing that the ET had failed to apply the correct statutory test in determining the cause of Ms Bacon’s less favourable treatment and that it had also failed to consider the correct hypothetical comparator.
The EAT allowed the appeal, following the reasoning in the case of Hawkins in that the key question to be asked was whether Mr Ellis had treated Ms Bacon less favourably because she was married, and not because she was married to Mr Bacon, specifically. The correct hypothetical comparator was someone who was in a close relationship with Mr Bacon but not actually married or in civil partnership with him and then it was necessary to consider whether that person would have been treated differently to Ms Bacon.
The EAT sympathised with Ms Bacon, acknowledging that she was “very badly treated by Mr Ellis”. However, the EAT was bound to apply the law and accordingly allow the appeal by Mr Ellis, but it did so “with a very heavy heart”.
This marital discrimination case illustrates the narrow protection afforded by the protected characteristic of marriage and civil partnership. Historically, this protected characteristic was introduced by the Sex Discrimination Act 1975 to prevent employers from dismissing female employees simply because they decided to marry. It was intended for the simple reason of preventing married people from suffering less favourable treatment than unmarried people. It was not intended to prevent discrimination because of a person’s marriage to a particular individual.
This case also serves as a useful reminder to employers of the distinction between close relationships vs marriages and civil partnerships. There are inherent risks for any employer when two of its employees are involved in a romantic relationship, including but not limited to bias and favouritism, leaking of confidential information and of course the impact on staff morale in the event that the couple ultimately break up on bad terms. Employers may take steps in order to mitigate these risks, for example, altering reporting lines to avoid a situation where one individual is their romantic partner’s professional line manager. If an employer can establish that such steps are taken simply because of the closeness of the relationship between its employees, regardless of whether the individuals are married or not, this will be a proper defence to an allegation of marital discrimination. However, employers should take a sensible approach when establishing what exactly it means by “closeness of the relationship between its employees”, as a prudent employer will not want to breach its employees’ personal boundaries and rights to privacy, and/or waste valuable resources monitoring the closeness of every colleague relationship.
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