A rare case of marital status discrimination has been reported by the Employment Appeal Tribunal (“EAT”) this week. Marital status discrimination arises when someone is treated less favourably because they are married or in a civil partnership.
In the case of Ellis v Bacon the Claimant, Mrs Bacon was a company director of AFS Ltd and married to their majority shareholder, Mr Bacon. Mr and Mrs Bacon later separated and became involved in bitter divorce proceedings. False allegations were made that Mrs Bacon had misused company computer equipment and she was reported to the police. She was removed as a director of AFS Ltd and her dividends were not paid. She was eventually dismissed by AFS Ltd’s Managing Director, Mr Ellis. Mrs Bacon brought a claim in the Employment Tribunal against Mr Ellis alleging that he had subjected her to marital status discrimination. This was initially successful in the Employment Tribunal who found that Mr Ellis had sided with Mr Bacon and was complicit in acting with him in removing Mrs Bacon as a director, reporting her to the police, withholding her dividends, suspending and then dismissing her on spurious grounds. They found that these actions amounted to less favourable treatment of Mrs Bacon because she was married to AFS Ltd’s majority shareholder.
Mr Ellis successfully appealed against the Tribunal’s decision. The EAT found that the Tribunal had failed to consider the proper comparator for her less favourable treatment as they had focused on the fact that she was married, rather than looking at a hypothetical comparator of someone who was in a close relationship with the majority shareholder, but was not married. The EAT held that the question was not whether the Claimant was badly treated by Mr Ellis because she was married to a particular person, but was instead whether an unmarried woman whose circumstances were otherwise the same as hers, including being in a close relationship with the majority shareholder, would have been treated differently.
In this case the EAT found that they would not have been treated differently for this reason and so the Claimant’s claim for marital status discrimination was not successful and rejected, although the EAT said that they did so with a “very heavy heart” recognising that Mrs Bacon had been treated very badly by Mr Ellis and AFS Ltd.
Whilst cases such as these are rare they are more likely to arise in family businesses when relationships break down. In such cases emotions are likely to be running high and so taking advice at an early stage can help ensure an objective view is maintained to avoid the risk of claims being made.
If you have been affected by marital status discrimination please contact a member of the Employment Team on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.