The EAT decision in Dunn v Institute of Cemetery and Crematorium Management held that marriage discrimination legislation protects a woman against being treated less favourably because she is married to a particular man.
However, the more recent EAT case of Hawkins v Atex Group Ltd and Others has reached a different conclusion.
Mrs Hawkins was married to the Chief Executive of Atex Group. She had worked for Atex for some time providing HR and marketing consultancy services through a company jointly owned by her and Mr Hawkins. Due to concerns about nepotism and perceived conflicts of interest, Mr Hawkins was informed that he should not engage any family members in the business. Mrs Hawkins was nevertheless appointed as Corporate Marketing Director and her daughter as Global Human Resources Manager. All three members of the Hawkins family were subsequently dismissed. Mrs Hawkins was informed that the reason for her dismissal was that her employment was unauthorised because it was in breach of the instruction to her husband not to engage family members. However, she claimed that her dismissal constituted direct discrimination on the grounds of her marital status.
The employment tribunal held that Mrs Hawkins was not subjected to unlawful discrimination because she was married, but because she was in a close relationship with someone which happened to take the form of marriage. The EAT also agreed that Atex was not motivated by the fact of marriage as such, but by the closeness of the relationship between Mrs Hawkins and her husband. She would still have been dismissed had they been common law spouses. Her appeal was therefore dismissed.
Employers will hope that the Hawkins decision prevails in future cases. For the time being, it seems that employees will need to show that they have been treated less favourably because they are married, not because they are married to a particular person.