The idea of employers treating employees less favourably on the grounds of their marital status seems almost an alien concept today. However, it was fairly commonplace as recently as the 1970s for female employees to be dismissed once they got married. Somewhat further back, it was established practice for civil servants and for air hostesses to be dismissed on marriage.

As a result, a provision was included in s3 Sex Discrimination Act 1975 (“SDA 1975”) in order to protect employees from this type of treatment. Since then, employers’ attitudes have changed immeasurably: chances are you won’t have come across many such dismissals recently.

As a result of these huge strides forward, the Government considered leaving marriage discrimination out of the new statutory discrimination framework during the consultation process which eventually led to the Equality Act 2010 (“EA 2010”) on the basis that it no longer had any relevance in the modern workplace. However, ultimately it was retained and the equivalent provision appears at s5 EA 2010.

The recent case of Hawkins v Atex & Others (UKEAT/0302/11/LA) has given some valuable guidance on the relevance of this provision. It also provides some clarity on another recent EAT decision, Dunn v Institute of Cemetery and Crematorium Management, which suggested that the protection could be extended to a claimant alleging that she had suffered less favourable treatment on the ground that she was married to a particular man.

Background

Mrs Hawkins (the Claimant) had worked for Atex since 2006 as a HR consultant. Her husband was CEO of Atex. It was the Respondents’ case that, in 2009, the Atex board of directors instructed Mr Hawkins that Mrs Hawkins’ consultancy should end and that he must not employ any family members in senior roles. Contrary to this instruction, Mrs Hawkins became a full time employee of Atex in January 2010 (as Global Marketing Manager) and Mr and Mrs Hawkins’s daughter (who was unmarried) was also employed as Global HR Manager.

When this was discovered by the Atex board of directors, Mr Hawkins, Mrs Hawkins and their daughter were all suspended. Following an investigation, Mr Hawkins was dismissed and shortly afterwards, Mrs Hawkins and her daughter were also dismissed. The reason given for these dismissals was that their employment had not been authorised by the board. In explaining this, Atex informed Mrs Hawkins that “there was a perception that the Company was being run as a ‘family business’ and that this was inappropriate. It was also felt that having the wife of the CEO perform a senior executive role in the business created an unacceptable conflict of interest”.

Neither Mrs Hawkins nor her daughter had unfair dismissal rights. Mrs Hawkins brought a claim for discrimination on the grounds of marital status contrary to s3 SDA 1975. Her claim form stated that the “real reason” for her dismissal had been her marital status and that she had been treated “less favourably than had she not been married”. However, following an application by the Respondents, the Employment Tribunal struck out Mrs Hawkins’s claim on the grounds that it had no prospect of success. She appealed to the EAT.

EAT decision

Mr Justice Underhill (then President of the EAT) concluded that in all cases concerning marital status discrimination, it is an essential requirement for the claimant to show that they have been treated less favourably as a result of their status as a married person, i.e. that they would have been treated more favourably had they not been married. This was the intention behind s3 SDA 1975, and consequently s5 EA 2010.

In this case, the Judge accepted that Mrs Hawkins would not have been dismissed if she had been married to anyone other than Mr Hawkins. Therefore, the identity of the Claimant’s husband was a key factor. Nevertheless, in order to show discrimination, Mrs Hawkins still needed to show it was her marriage, and not the identity of her husband, that had caused her dismissal. To put it another way, if Mrs Hawkins was dismissed because she was married to Mr Hawkins, this would be marital status discrimination. If Mrs Hawkins had been dismissed because she was married to Mr Hawkins, it would not.

In order to determine whether Mrs Hawkins had any prospect of showing that it was her marital status, rather than the identity of her husband, that was the motivating factor for her dismissal, the Judge considered it absolutely necessary to consider whether Mrs Hawkins would have been treated in the same way if she had been in a relationship with Mr Hawkins but not married to him, i.e. if Mrs Hawkins had been living as Mr Hawkins's "common law spouse".

The Judge felt that it was clear that Atex’s concern in this situation (whether justified or not) had been the closeness of the relationship between Mr and Mrs Hawkins and the consequent risk of conflict of interest. Although the close relationship between Mr and Mrs Hawkins happened to be that of marriage, in the Judge’s opinion it was “impossible to conceive” that Atex would have acted differently had Mr and Mrs Hawkins not been married – indeed, Mrs Hawkins had not pleaded a marriage-specific reason for her treatment. The Judge also noted that the Hawkins's unmarried daughter had been treated in exactly the same way. As a result, the Judge agreed with the Employment Tribunal that Mrs Hawkins had no reasonable prospect of success. She could not show that she had any chance of proving that she had been treated “less favourably than had she not been married”, as she had pleaded, and her appeal was dismissed.

Impact of the Hawkins decision

In reaching the conclusion in Hawkins, Mr Justice Underhill respectfully disagreed with the decision of a differently constituted EAT in a previous case, Dunn v Institute of Cemetery and Crematorium Management. In Dunn, the EAT concluded that it was discriminatory to treat a woman less favourably on the grounds of her marriage to a particular man, and that consideration of whether the Claimant would have been treated in the same way had she been living with and not married to her partner did not fully satisfy the comparative test required by the relevant legislation.

Although this means there are two conflicting EAT judgments in this area, we believe that the Hawkins judgment is to be preferred. Indeed, the decision in Hawkins is consistent with the limited earlier case law, and it is significant that Mr Justice Underhill relied on a case in Hawkins which was not referred to the EAT in Dunn.

Further, the conclusion that discrimination on the grounds of marital status can only be demonstrated where the reason for the treatment complained of is marriage-specific reflects a common-sense interpretation of the legislation. The provisions are narrowly drafted and have a clear intention: to prevent less favourable treatment on the grounds that the claimant is a married person. If the claimant cannot show that they have been treated less favourably than if they were not a married person, they should fail. For this reason, it is difficult to see how it can possibly be correct that consideration of the position of a “common-law spouse” in the claimant’s circumstances would fail to satisfy the comparative test required by the legislation. Surely – as concluded by Mr Justice Underhill – this is the only possible and appropriate comparison that can be made.

It is interesting to note that the effect of the decision in Hawkins is significantly to narrow the impact of marital status discrimination. There are likely to be very few cases where a claimant is able to show that they would have been treated differently had they only been living with, and not married to, their spouse. However, this accords with the intention behind the legislation, which itself was marriage-specific. It should not be forgotten that discrimination legislation exists to create protection where there is otherwise vulnerability. If protection is afforded where no vulnerability exists, then perhaps the law has gone too far. Whatever the impact of the decision in Hawkins, if attitudes in the workplace have changed so drastically as to make the legislation concerning marital status discrimination arguably obsolete, then this can be no bad thing.