The prohibition against marital discrimination was initially introduced many years ago to protect women from being treated less favourably simply because of the fact that they were married or because of an employer's fear that they would be soon leaving their employment to have children after marriage. It is now contained in section 8 of the Equality Act 2010.
There have been two recently decided cases in the Employment Appeal Tribunal (the "EAT") which have considered the scope of protection from discrimination on the grounds of marriage, which appear to conflict.
In the case of Dunn v. Institute of Cemetery and Crematorium Management UKEAT/0531/10, Mrs Dunn raised a grievance with her employer about her entitlement to contractual sick pay. Her grievance was not upheld, which resulted in her going on sick leave and resigning. She claimed direct marriage discrimination not because she was married, but on the basis that her employer had treated her less favourably during the grievance proceedings, as she w s married to Mr Dunn who had also been employed by the same employer and was in dispute with them about an overlapping issue.
The Employment Tribunal rejected Mrs Dunn's claim. It held that there was no discrimination, as sex discrimination legislation did not prohibit discrimination because an individual was married to a particular person. However, on appeal Mrs Dunn's claim was upheld by the EAT. It held that treating a married person less favourably because they are married to a particular person can amount to unlawful discrimination.
Another division of the EAT considered a similar question in the case of Hawkins v. Atex Group Limited and Ors UKEAT/0302/11. In this case the President of the EAT, Mr Justice Underhill doubted the reasoning in Dunn and confirmed that less favourable treatment because someone is married to a particular person will only be unlawful discrimination if the action taken by the employer is specifically because the person is married, and not because they are in a close relationship which happens to take the form of a marriage.
In this case, Mrs Hawkins was married to the CEO of Atex, Mr Hawkins. From September 2006, Mrs Hawkins was engaged as a consultant and provided HR and marketing services to Atex through a company jointly owned by herself and Mr Hawkins.
The new Board decided that it wished to change the image of the Company away from being a family run business, and were also concerned about close relationships between the senior employees including Mr and Mrs Hawkins, which could lead to conflict of interests. In April 2009, the Chairman of Atex told Mr Hawkins that he was not permitted to employ any family members in an executive or professional capacity beyond the end of 2009. Despite this instruction, Mr Hawkins employed his wife as Corporate Marketing Director on 1 January 2010. As a result of Mr Hawkins' direct breach of the Chairman's instruction, Mrs Hawkins was dismissed together with Mr Hawkins and their daughter, who was employed by Mr Hawkins in December 2009 as Global Human Resources Manager. Mrs Hawkins brought a claim for unlawful discrimination on the grounds of her marriage.
The EAT struck out Mrs Hawkins' claim on the basis that it had no reasonable prospect of success. The EAT recognised that it is often the case that an employer will take specific action, not because a couple are married but simply because of the fact of their close relationship and the problems that this may cause internally with conflicts etc. Mr Justice Underhill stated that it will sometimes be legitimate for employers to treat employees who have close personal relationships differently in order to avoid conflicts of interest and perceptions of favouritism.
In this case, Mr Justice Underhill accepted that the company would have treated Mrs Hawkins in exactly the same way if she was simply living with Mr Hawkins as a common-law wife (to use historic language) and was not married to him. It was the closeness of the relationship to a particular person which caused the issue in this case and not the fact that she was married.
It has been stated by several commentators that the Hawkins case is more persuasive and convincing than the Dunn case. As the President of the EAT gave the decision in Hawkins, it is more likely that the reasoning will be followed in subsequent similar cases in the Tribunal. So if in these situations the employer can show that the dismissal of a married person was genuinely for other reasons, eg legitimate concerns about senior employees' close relationships and potential conflicts, then it is probable that a dismissed employee's claim of marriage discrimination will fail. As always though, each case very much depends on the facts.
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