Discrimination on the grounds of marital status revisited

7 March 2023

In Ellis v Bacon [2022] EAT 188 (published 6/1/23), the Employment Appeal Tribunal overturned a finding that an employee was discriminated against because of her marital status.

The test is whether there was less favourable treatment because the employee was married, NOT whether there was less favourable treatment because the employee happened to be married to a particular person.

Ms Bacon joined AFS Ltd as a bookkeeper in 2005. In due course she married JB who was the majority shareholder. In August 2017, Ms Bacon informed JB that she wished to separate. This precipitated acrimonious divorce proceedings. Ms Bacon was ultimately dismissed by the Managing Director of AFS Ltd (Mr Ellis).

Ms Bacon then brought a successful employment tribunal claim for direct discrimination on the ground of her marital status. She said that the Managing Director (Ellis) had sided with JB in relation to the marital dispute and was compliant with him in suspending and then dismissing her on spurious grounds.

EAT decision:

The employment tribunal should have asked itself whether an unmarried woman in a close relationship with the majority shareholder (but not married to him), would have been treated any differently.

In other words, was it the fact of her marriage to JB or merely the existence of a close relationship to him (and the subsequent break down of that relationship) that was behind Ms Bacon’s detrimental treatment at work?

The EAT observed that the employment tribunal had failed to direct itself in accordance with Hawkins v Atex Group Ltd (EAT 2011). It was essential that the reason for the treatment (at least in part) was the fact that the two people were married rather than simply in a close relationship.


Daniel Hobbs

Call 1998

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