Marital status discrimination – beware of the risks that can arise when discrimination and family law collide

Civil partnership and marital status discrimination is certainly the lesser known of the “protected characteristics” identified in the Equality Act 2010 and cases of marital or civil partnership status discrimination have been rare and remain unusual.  However, both within family businesses and more broadly, many married or civil partnership couples work together, or may be employed for perceived tax efficiency and it is easy to think of scenarios whereas a result of marriages or civil partnerships breaking down, there is a knock-on impact on their employment or within the workplace.

Perhaps the reason why cases are uncommon is that it is necessary to show that the unfavourable treatment was carried out on the ground that the person was married, not simply because they were in an otherwise close relationship.

In this case, the Claimant was employed as a bookkeeper by Advanced Fire Solutions Ltd (“AFS Ltd”) in 2005. Mr Bacon was the managing director of AFS Ltd at this time and was a majority shareholder of the company. In due course, Ms Bacon and Mr Bacon got married and in 2008 she became a shareholder and subsequently a Director. Mr Ellis took over as Managing Director from Mr Bacon in August 2017 and became the majority shareholder. At around this time, Ms Bacon informed Mr Bacon that she wanted a divorce. Following this announcement, Ms Bacon was treated differently in that she was removed as a director, not paid dividends and false allegations were raised against her, amongst several other things.

She raised a grievance in relation to harassment and victimisation in March 2018 and raised concerns about the impartiality of those involved in investigating this.  The grievance was not resolved and Ms Bacon was dismissed in June 2018. Her dismissal letter was signed by Mr Ellis.

Following this, she brought a claim for direct marital discrimination, amongst other claims, and relied on Mr Ellis’s treatment of including his taking sides with Mr Bacon and agreeing to exclude and dismiss her, stopping her share loan repayments by diverting them to Mr Bacon, disregarding her grievances, allowing Mr Bacon to use company funds to pay for his divorce proceedings and raising false allegations against her internally and to the police

Legal Test

To succeed with a claim of marital discrimination claim, an employee must show that they have been treated less favourably than someone, whether that person be real or hypothetical, in a close relationship but not married. The less favourable treatment must have occurred because of the employees marital or civil partnership status.

In the first instance, the employment tribunal found in favour of Ms Bacon that Mr Ellis had treated her less favourably by way of his actions because of her marital status to Mr Bacon and because Mr Bacon was effectively ‘pulling Mr Ellis’ strings in the process’.

Mr Ellis appealed this decision and the appeal was successful, because the Tribunal had not used the proper comparator by focussing on the fact that Ms Bacon was married, rather than looking at the appropriate comparator which was someone who was in a close relationship with Mr Bacon but not married. The question would then have been whether a person who was not married to Mr Bacon but in a close relationship would have been subjected to the same type of treatment and if not, was marriage the reason for the treatment.

The decision seems harsh but there will be circumstances where marriage is the reason for the treatment. This could be the case in disputes involving divorce proceedings where actions are taken by one party within the employment context to influence the standing of the parties or to avoid the legal implications of marriage on particular assets.