Historically, marriage discrimination was introduced to protect women from the once not uncommon occurrence of finding themselves dismissed by their employers once they were married. Although, fortunately, times have moved on, this protection still remains embedded in discrimination legislation. This article will consider recent case law which has shed some light on the scope of marriage discrimination.
The statutory provisions which covered this type of discrimination were initially set out in section 3 of the Sex Discrimination Act 1975. This Act has now been repealed and replaced with the Equality Act 2010, the majority of which came into force on 1 October 2010. The Equality Act lists a number of “protected characteristics”, including marriage and civil partnership, and states that it is unlawful to discriminate against an individual on the basis of these protected characteristics.
Direct discrimination because of a protected characteristics is now covered by section 13(1) of the Equality Act 2010 which states:-
“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
The cases of Dunn v Institute of Cemetery and Crematorium Management and Hawkins v Atex Group Ltd and Others illustrate the approach taken recently to marriage discrimination. They were both considered under the provisions set out in the Sex Discrimination Act 1975.
Dunn v Institute of Cemetery and Crematorium Management
The facts of this case relate to an employee, Mrs Dunn, who raised a grievance regarding her contractual sick pay entitlement. Ultimately, she resigned from her employment and claimed constructive dismissal and also that she had been discriminated against in breach of the Sex Discrimination Act 1975 on the grounds of being married. Focussing on the marriage discrimination claim, Mrs Dunn argued that she had been treated less favourably during the grievance process as a consequence of being married to Mr Dunn who was also employed by the Respondent. Mr Dunn had been involved in a dispute with the Respondent at that time. The Employment Tribunal rejected the marriage discrimination claim and held that if Mrs Dunn had been subjected to less favourable treatment this was not due to her being married but rather would have been due to her relationship with Mr Dunn.
On appeal, the EAT overturned this decision. The EAT chose to rely on the case of Chief Constable of the Bedfordshire Constabulary v Graham when reaching its decision. It held, based on this case, that a married woman was protected due to her being married to her particular husband. The EAT concluded that Mrs Dunn had been treated less favourably because of her relationship with Mr Dunn and the marriage discrimination claim was remitted to the same Employment Tribunal. The EAT also acknowledged in this case that Mrs Dunn might have been treated the same had she been in a close relationship other than marriage and went on to suggest that this may not defeat her marriage discrimination claim.
Hawkins v Atex Group Ltd and Others UKEAT/0302/11
This case related to an employee, Mrs Hawkins, who was dismissed on the basis that her employment went against an instruction to her husband that no member of his family should be employed by the employer beyond the end of 2009. Mrs Hawkins claimed that her dismissal was unlawful direct marriage discrimination in breach of the Sex Discrimination Act 1975. The claim was struck out on the basis that it had no reasonable prospects of success as the case put forward by Mrs Hawkins was not capable of constituting marriage discrimination. On appeal, the EAT upheld the decision to strike out the claim.
The EAT held in this case that it was clear from the legislation that the protected characteristic is the fact of being married, with the appropriate comparator usually being someone in a relationship that equates to marriage but who is not actually married.
This highlights a difficulty for employees hoping to succeed with such a claim where the reason for the treatment is not only the fact that the Claimant is married but is also due to the identity of their spouse. In such cases, the basis for the employer's actions are usually not the fact that the Claimant is married but rather the closeness of the relationship and the difficulties that this, in itself, can cause. It follows that if an employee in a close relationship (but unmarried) was treated in the same manner then there would be no direct marriage discrimination.
The EAT therefore disagreed with the decision reached in Dunn v Institute of Cemetery and Crematorium Management. It disagreed with the suggestion that there was no difference between where an employer’s actions are motivated by the Claimant being married and where they are motivated by the Claimant being in a close relationship, even though this close relationship could be one of marriage. The EAT concluded in this case that there was no realistic prospect of it being found to be the case that the employer’s actions were motivated by the Claimant being married, rather than due to the closeness of her relationship with her spouse.
There has clearly been a drawing back from the position as set out in the Dunn case. The EAT in the Hawkins case has essentially held that any actions based on close relationships (which would include marriage), rather than on the fact alone that someone is married, will not amount to marriage discrimination.
This significantly limits the circumstances where a claim for discrimination on the grounds of marriage can succeed.
It should be noted that although both cases were decided at EAT level, it appears the decision in the Hawkins case (given by the President of the EAT) is to be preferred.