Case law update: ‘Speak now or forever hold your peace’ - discrimination on the grounds of marital status

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The EAT has recently held that discrimination legislation not only protects employees on the grounds of marriage (or civil partnership), but also on the grounds that an employee is married to (or in a civil partnership with) a particular individual.

Background

The Sex Discrimination Act 1975 first introduced protection from discrimination on the grounds of marital status as a response to the then common practice of employers dismissing female workers when they got married. Since then employers’ attitudes and practices have changed somewhat and discrimination on the grounds of marriage is now only rarely cited as a ground of complaint. However, ‘marital status’ remains a protected characteristic under the Equality Act 2012.

In the recent case of Dunn v Institute of Cemetery and Crematorium Management, the EAT considered the scope of discrimination on the grounds of marital status and clarified that treating an employee less favourably because of who they are married to, as opposed to simply because they are married per se, can also constitute marriage discrimination. In doing so, the EAT has confirmed that the scope of the protection on the grounds of marriage or civil partnership may be broader than previously thought.

Facts

Mrs Dunn was employed by the Institute of Cemetery and Crematorium Management (‘ICCM’) as a technical services manager. Her husband was also employed by ICCM. Mrs Dunn disputed her contractual sick pay entitlement and raised a number of grievances with ICCM about her treatment. Mrs Dunn’s husband had separate issues of disagreement with ICCM and in particular had a very difficult relationship with ICCM’s Chief Executive.

Following investigations Mrs Dunn’s grievances were dismissed. Subsequently, Mrs Dunn resigned and brought employment tribunal claims for constructive dismissal and direct discrimination on the grounds of her marital status. She asserted that ICCM had discriminated against her on the grounds of her marital status because she was married to a particular person, Mr Dunn, with whom ICCM’s Chief Executive was in dispute.

The Employment Tribunal found that during ICCM’s investigations of Mrs Dunn’s grievances criticisms made of Mr Dunn by the Chief Executive, which had no bearings on the issues in hand in relation to Mrs Dunn, were taken into consideration. In light of its finding the Employment Tribunal went on to conclude that Mrs Dunn had been unfairly dismissed. However, it found that there was no discrimination on the basis of Mrs Dunn’s marital status, as the treatment of which Mrs Dunn complained had occurred not because she was married per se, but because she was married to Mr Dunn in particular and was not therefore within the scope of marital discrimination protection.

Mrs Dunn appealed.

The Employment Appeal Tribunal (EAT) decision

On appeal the EAT overturned the Employment Tribunal’s decision, finding that treating an employee less favourably because of the ‘identity’ of their spouse (or civil partner) could fall within the scope of discrimination protection.

Comment

This case is of particular relevance to smaller family-run companies where divorce, family shareholder disputes and other family fall-outs can have a significant negative impact on day-to-day management. In light of Dunn, such disputes might now also risk potentially expensive discrimination claims.

Also, some employers (although increasingly limited numbers), implement policies which restrict husband and wives or civil partners from working together in the same teams or same parts of an organisation because of potential conflicts of interests. These blanket ban policies have always been difficult to police, but in light of Dunn, also expose employers to increased risks of claims of discrimination. Employers operating such policies are advised to consider the need to retain them in light of the potential risks of enforcement.

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