In Hawkins v Atex Group the Employment Appeal Tribunal (EAT) found that employers can continue to apply particular rules to married employees (or registered civil partners), provided that those in a close unmarried relationship are treated in the same way.

A recent EAT case decided that treating an employee less favourably because he or she is married to a particular person is unlawful marital status discrimination, even where the employee would have been treated the same had he or she been in a close unmarried relationship with that person.

This called into question employer policies such as prohibiting employees in close relationships from working together or refusing to employ those in a close relationship with someone working for a competitor due to the risk of disclosure of confidential information.

Employers will welcome another EAT decision disagreeing with this approach and preferring the orthodoxy that there is only unlawful marital status discrimination where the employee would have been treated more favourably had his or her relationship been close but unmarried. Although there are now two conflicting decisions at EAT level, this more recent ruling from the president of the EAT, which is supported by other case law, should be preferred.

For further information on this topic please contact Andrew Brown at Herbert Smith LLP by telephone (+44 20 7374 8000), fax (+44 20 7374 0888) or email ([email protected]).