Facts of the case
Mrs Bacon, a director and shareholder of Advanced Fire Solutions Ltd (AFS) had been dismissed from the company following her separation from her husband, who was formerly the managing director and also a shareholder of the company.
She brought a claim against AFS and its then managing director, Mr Ellis, for less favourable treatment on the grounds of her marital status. She claimed that Mr Ellis had sided with her husband in relation to the marital dispute and had dismissed her based on false allegations. Her claim was upheld by an employment tribunal. Mr Ellis appealed to the EAT.
The EAT has upheld the appeal, finding that the claimant had not been discriminated against due to her marital status. The tribunal had applied the wrong test to determine the cause of the unfavourable treatment and had failed to consider the appropriate hypothetical comparator.
The correct approach is to consider whether the less favourable treatment was solely due to being married, not the identity of the person to whom the claimant happens to be married. It is the marital status that is the key consideration. The correct hypothetical comparator for the purposes of establishing less favourable treatment is someone in a close relationship akin to marriage, but who is not actually married. If they would have been treated the same, there is no discrimination on grounds of marital status.
The Birketts view
Prior to this decision, there had been conflicting EAT decisions on marital discrimination, and whether the identity of the spouse was of any relevance. This decision seems to settle the point and limit the extent of the protection only to the status of being married.
Protection from discrimination on the grounds of marital status was first introduced under the Sex Discrimination Act 1975, at a time when it was not uncommon for women to be dismissed upon marriage. This decision reflects the original purpose behind the legislation, and means that it will be difficult for individuals to claim under these provisions when a personal relationship (whether ongoing or broken down) impacts on their role at work.
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