Most readers would be able to recite the majority of the protected characteristics under the Equality Act 2010. However, even employment lawyers sometimes forget the lesser spotted protected characteristic of marriage or civil partnership!
This protected characteristic only extends to those in an active marriage or in a civil partnership. As the Explanatory Notes to the Equality Act make clear, those engaged or those divorced are not covered.
This provision is, in some senses, a relic from history. Marriage and civil partnership protection was first introduced by the Sex Discrimination Act 1975 to tackle the issue of female employees being dismissed because they had decided to marry.
Unsurprisingly, there are not that many recent reported cases in this area. However, the Employment Appeal Tribunal has considered it in the recent case of Ellis v Bacon and Advance Fire Solutions Limited (“AFS”).
Bacon v Ellis and AFS: facts
- Mrs Bacon was a director and shareholder of AFS.
- Until 2017, she was married to the majority shareholder, Mr Bacon. The divorce was described as “acrimonious” by the judge.
- Mr Ellis (the managing director) sided with Mr Bacon in the divorce. He suspended Mrs Bacon, did not pay her dividends or share loan repayments, dismissed Mrs Bacon on “spurious grounds” and made a “wholly baseless” complaint to the police accusing Mrs Bacon of theft.
- Mrs Bacon alleged she had been directly discriminated against on the grounds of marital status.
- Bacon v Ellis and AFS: findings
- The first instance Employment Tribunal sided with Mrs Bacon, finding Mr Ellis’ treatment of the Claimant was because she was married to Mr Bacon. The Respondents appealed, arguing the Tribunal had made an error in law.
The Employment Appeal Tribunal allowed the Respondents’ appeal, as the Tribunal had not applied the correct test for discrimination on the grounds of marriage or civil partnership. This extract from the EAT judgment summarises the issue:
“The issue in this case was therefore whether Mr Ellis treated Mrs Bacon in the unfavourable ways that have been identified because she was married. That is where the sentence ends: the question is not whether she was badly treated because she was married to a particular person.”
There has previously been conflicting case law on this point, but the EAT chose to follow the reasoning in the case of Hawkins v Atex Group Ltd and others, which was that the test is not whether the Claimant was less favourably treated because they were married to a particular individual.
Rather, discrimination would only occur if the Claimant was treated less favourably than a comparator in a relationship akin to marriage but who was not actually married. The EAT in Bacon found that was not the case, and therefore allowed the appeal.
Cases of marriage or civil partnership discrimination remain rare. The narrow scope of protection, reinforced by the EAT in Bacon, means it is unlikely that the floodgates will open any time soon.
The EAT was nonetheless sympathetic to the Claimant. It allowed the appeal “with a very heavy heart” noting that Mrs Bacon had been “very badly treated” by the Respondents.
You could say that only a correct application of the Equality Act could save the Respondents’ bacon (sorry).
With thanks to Alex Evans, a paralegal in the employment team, for contributing to this article.
If you require further information about anything covered in this blog, please contact Hugh Young, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, March 2023