When considering a claim of discrimination based on marital status, tribunals have to ask whether someone who was not married would have been treated differently. In Ellis v Bacon, the EAT held that the tribunal had failed to construct the appropriate comparator and had, therefore, failed to ask itself this crucial question.
Ms Bacon, who started working as a bookkeeper for Advanced Fire Solutions Limited in 2005, later married the managing director and majority shareholder, Jonathan Bacon. In 2008, she also became a director and shareholder. Mr Ellis joined the company in 2012, becoming a director and 10 per cent shareholder in 2013. He was appointed managing director in August 2017.
Very shortly after Mr Ellis became MD, Ms Bacon told her husband she wanted a separation, prompting acrimonious divorce proceedings. Mr Ellis subsequently accused Ms Bacon of misusing company IT. After reporting her to the police for theft, he suspended her in January 2018, and then dismissed her by letter on 29 June that year.
Ms Bacon lodged claims of direct discrimination on the ground of marital status against Mr Ellis.
Section 8 of the Equality Act states that: “A person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner”.
Section 13(1) states direct discrimination occurs when: “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”.
Section 13(4) states that section 13(1) only applies to a contravention of a work situation if the treatment is because it is B who is married or is a civil partner.
The tribunal agreed with Ms Bacon that Mr Ellis had sided with her former husband in relation to the marital dispute. In particular, he had helped to remove her as a director, ensured she did not receive any dividends, reported her to the police, and then dismissed her on spurious grounds. In effect, it found that Mr Bacon was “pulling Mr Ellis's strings”.
The tribunal concluded that these actions involved less favourable treatment by Mr Ellis against Ms Bacon for the sole reason that she was married to Mr Bacon. Mr Ellis appealed, arguing that the tribunal had failed to address the statutory test as to the cause of the unfavourable treatment or to consider the appropriate hypothetical comparator.
The EAT agreed with Mr Ellis that the question for the tribunal was not whether Ms Bacon was badly treated because she was married to a particular person, but rather whether Mr Ellis had treated Ms Bacon less favourably than someone who was not married.
Although the tribunal had asserted at various points in the judgment that the reason for the unfavourable treatment was because Ms Bacon was married, this was not enough in terms of the legal test, not least because the tribunal had muddled these assertions with other considerations about Mr Ellis acting on Mr Bacon's instructions.
The EAT concluded that the tribunal had made two mistakes. Firstly, it had failed to construct the appropriate comparator, namely someone in a close relationship with Mr Bacon but not married to him; and secondly it had failed to ask itself whether that person would have been treated differently compared to Ms Bacon.
As the tribunal had failed to address those questions, the EAT had to allow the appeal, albeit “with a very heavy heart”.
Whilst the tribunal may have erred in law when applying the test, this case presents a cautionary message to solicitors when drafting pleadings for direct discrimination on the grounds of marital status. Namely, to ensure that the correct hypothetical comparator for the purposes of establishing less favourable treatment is someone in a close relationship with that person but who is not actually married, rather than attempting to pin the discriminatory behaviour on the fact that the claimant is married themselves.
However, the outcome appears to restrict the law in so far as claims will generally always arise because an individual is married to a particular person. That creates the risk for claimants in cases of this type that a tribunal could find that anyone unmarried, but in a close relationship with that person, would likely have been treated in the same way.