The EAT has ruled, in a second recent case on this topic, that it was not unlawful discrimination to dismiss a spouse on the grounds of being married to a particular person. The EAT said it would only amount to such discrimination if the ground for the less favourable treatment is specifically marriage, as opposed to a close relationship which takes the form of marriage.
Mrs Hawkins was married to the Chief Executive of Atex Group Ltd (Atex). Atex became concerned about a perception that the company was being run as a family business. Mr Hawkins had recruited his daughter as global human resources manager in December 2009 and went on to recruit his wife as marketing director in January 2010 – which was (according to Atex) flouting an explicit instruction not to recruit any further family members. All 3 (husband, wife, daughter) were subsequently dismissed.
‘Marital status’ is a protected characteristic under the Equality Act 2010, and Mrs Hawkins claimed that her dismissal was unlawful marriage discrimination. (Remember, this protection applies in the same way to civil partnerships and applies equally to a man.)
An employment tribunal struck out Mrs Hawkins’ claim and her subsequent appeal to the EAT was unsuccessful. The EAT held that on the particular facts of this case, there was no general rule or criterion applied by Atex about married women. The decision to dismiss applied to this particular person and Atex was not motivated by the mere fact of marriage.
Readers may recall our recent case law update in Dunn v Institute of Cemetery and Crematorium Management where the EAT held that discrimination legislation not only protects employees on the grounds of marriage, but also on the grounds that an employee is married to a particular individual. This judgment, given a few months later, says something rather different.
Here, the EAT reviewed the case law on direct marriage discrimination. It found that action based on close relationships (including marriage), rather than on marriage itself, will not be discriminatory and that the scope of the protection provided by marriage discrimination is intentionally narrow. Essentially, the question is not whether the complainant suffered the treatment in question because she was married to a particular man, but whether she suffered it because she was married to that man.
In many cases of this kind, employers who have policies about relationships at work tend to be worried about how the relationship might cause potential conflicts of interest and/or perceptions of favouritism or nepotism. In practice, the driver for the employer to take action, such as dismissal, is the fact that there is a close relationship rather than whether it’s a marriage or not.
We think the decision in this case, which was given by the President of the EAT, is to be preferred to Dunn. However, be prepared for claimants to seek reliance on the Dunn case, and continue to watch this space for any further updates!