In Dunn v Institute of Cemetery and Crematorium Management, the EAT has held that discrimination by reason of ‘marital status’ can include less favourable treatment because an employee is married to a particular person, rather than just because that employee is married.
Mr and Mrs Dunn were both employed by the Institute of Cemetery and Crematorium Management. In 2008 Mrs Dunn raised grievances about changes to her contractual sick pay. During her grievance proceedings, and although it was not directly relevant, Mr Dunn’s ongoing disputes with the employer were mentioned. Mrs Dunn went off sick in September 2008. Shortly afterwards, the Institute wrote to her starting redundancy consultation. In February 2009, Mrs Dunn resigned, claiming (amongst other things) that the Institute had treated her less favourably because she was married to Mr Dunn. The employment tribunal found that she was unfairly dismissed. However, her claim of marital discrimination was rejected because the less favourable treatment was because of her marriage to a particular person, Mr Dunn, and not because of her status as a married person. Accordingly, in the tribunal’s view, it was not covered by the relevant legislation.
The EAT disagreed, saying that the tribunal had interpreted the legislation too narrowly. It held that that any less favourable treatment which is marriage-specific is unlawful. There was a clear link between Mr Dunn and the employer’s conduct towards Mrs Dunn, and it was clear that she had been treated adversely because of her relationship to Mr Dunn. She was treated as ‘an adjunct to his family’. There would have been no reason to mention matters related to him in her grievance proceedings unless they were married. The EAT’s decision follows Chief Constable of the Bedfordshire Constabulary v Graham in which a police inspector succeeded in her claim of marital discrimination where she was turned down for a job because it was in a division commanded by her husband, a Chief Superintendent.
Although this case was decided under the Sex Discrimination Act 1975, the result would probably have been the same under the Equality Act 2010.
It seems that the scope of marital status discrimination is wider than previously thought. There may be legal and practical implications where husbands, wives and civil partners are employed in the same organisation.