In Ellis v Bacon and another, the Employment Appeal Tribunal (EAT) considered whether the dismissal of a company director amounted to discrimination owing to her marital status.
The Equality Act Law
Marriage and civil partnership are one of the nine characteristics protected under the Equality Act 2010. Direct marriage or civil partner discrimination occurs when a person treats another person less favourably than they treat, or would treat, others if that person is married or is a civil partner.
The Facts
Ms Bacon, a director and shareholder of Advanced Fire Solutions Ltd (AFS), was dismissed from the company after her separation from her husband, who was formerly the managing director and also a shareholder of the company.
She brought a claim against AFS and Mr Ellis, the managing director of AFS at the time, for less favourable treatment on the grounds of her marital status. She alleged that Mr Ellis sided with her husband in relation to the marital dispute and had therefore dismissed her based on false allegations. An employment tribunal upheld her claim, finding that Mr Ellis had discriminated against her due to the fact she was married. Mr Ellis subsequently appealed to the EAT.
The EAT’s Decision
The EAT upheld the appeal, finding that Ms Bacon had not been discriminated against owing to her marital status.
In its view, the tribunal had applied the wrong test to decide the cause of the unfavourable treatment. The correct question was whether Ms Bacon had been treated less favourably by Mr Ellis on account of her marital status, rather than her being married to a particular person.
As the tribunal had not considered this question, it had also failed to consider the correct hypothetical comparator. The correct hypothetical comparator for the purposes of establishing less favourable treatment was a person in a close relationship with Mr Bacon but who was not actually married or in a civil partnership with him. The tribunal should have then considered whether that person would have been treated differently than Ms Bacon.
While the EAT sympathised with Ms Bacon and acknowledged that she had been very badly treated by Mr Ellis, it noted that it was bound to apply the law and accordingly allowed the appeal with a ‘very heavy heart.’
Our Comments
This case highlights the limited scope of marital discrimination and how its purpose is to protect those who are treated less favourably as they are married, not due to whom they are married to.
If you think you have been unfairly dismissed and/or a victim of discrimination, contact our Employment law specialists to make your case. Email us at info@witansolicitors.co.uk.
