Describing Section 8 of the Equality Act 2010 as “marital status” is, I admit, a bit misleading. The actual protected characteristic is “marriage and civil partnership”.
In effect, this means that the status which is afforded protection in law is that of being either in a marriage or a civil partnership; protection does not extend to other descriptors of marital status.
In a recent case, which Chris Dobbs looks at in this article, the Employment Appeal Tribunal also made it clear that the test requires proof of marriage rather than simply being in a close relationship.
Marriage/Civil Partnership Cases
This particular protection in law is something of a carryover from older legislation designed to protect women from being denied roles because they were married.
Prior to the introduction of older sex discrimination legislation, it had not been unusual for a woman to be dismissed once she got married due to the society expectations on her at the time.
Such situations would now be covered under sex discrimination for the most part, but the concept of marriage discrimination still exists in law.
Surrounding case law
Unsurprisingly, there have been relatively few cases on the issue of marriage or civil partnership discrimination and most of those have tested the definition itself rather than deciding whether discrimination had taken place.
In most cases, the tribunals have found that any detrimental treatment was suffered not because of the fact that the claimant was married, but rather to whom they were married.
Marriage discrimination is often cited in workplace disputes where the claimant is married to a senior member of staff, often disputes between directors in family-owned businesses.
What are the issues with these claims?
The obvious difficulty with such claims is that the claimant must show that it was the fact of the marriage that caused the difference in treatment.
The employer will only have to show that the fact of a marriage or civil partnership made no difference to the treatment and that, for example, a single person or divorcee may have been treated in the same way.
Ellis v Bacon
It was exactly this situation which arose in the case of Ellis v Bacon where the claimant who was married to the company’s majority shareholder was allegedly treated in a poor way at his request.
They had been going through a particularly difficult divorce and so the claimant sought to rely on marriage discrimination.
What did the tribunal find?
The tribunal originally upheld her complaints however the Employment Appeal Tribunal found that the original tribunal had applied the wrong comparator test.
The tribunal had focused incorrectly on the fact of the marriage and that it gave rise to the desire to treat the claimant badly rather than the wider context.
The correct comparator, according to the Employment Appeal Tribunal, was someone who was in a close relationship but not married.
There is no doubt that Ms Ellis was treated badly. She was denied dividend payments, reported on baseless grounds to the police and ultimately suspended and dismissed for no good reason.
However, with even what it described as “a heavy heart”, the Employment Appeal Tribunal was obliged to find that the test for discrimination had been incorrectly applied.
An Employment Solicitor’s View
Chris Dobbs, Employment Solicitor at Frettens, said: “Marriage discrimination is often overlooked as an Equality Act claim because, as indicated above, it is quite rare.
It is particularly important for a claimant to not incorrectly make a claim for marriage discrimination by misunderstanding and wrongly applying the test in this way.
It is only applicable where the employee is married or in a civil partnership and it is the fact of that marriage or civil partnership which causes the discrimination.
Genuine cases of marriage or civil partnership discrimination are therefore incredibly rare. An employer who finds themselves on the receiving end of such a claim should also be aware of the test so that it can be robustly responded to in any defence to a claim.”
Employment law advice and guidance: Stay up to date
To keep up to date with employment news, tribunal and updates; you can register for our free newsletter here.
Employment & HR Solicitors
If you have any questions following this article, or would like to speak to a member of the team, please don’t hesitate to get in touch with our bright Employment Experts.
Call us on 01202 499255, or fill out the form at the top of this page, for a free initial chat.
Comments