Marital Discrimination – ET Failed to Ask the Right Question

To treat employees unfavourably because they are married amounts, unsurprisingly, to unlawful discrimination. However, as one case showed, proving a causal link between such treatment and marital status can be highly demanding.

The case concerned a bookkeeper who was married to the principal shareholder of the company for which she worked. After their relationship ended in acrimonious divorce, she was dismissed by the company’s managing director (MD). An Employment Tribunal (ET) subsequently upheld her complaint that the MD had discriminated against her because she was married.

In its decision, the ET found that the MD had sided with her husband in making false allegations against her and dismissing her on spurious grounds. She was wrongly accused of misusing the company’s IT system and, at one point, a wholly baseless complaint was made against her to the police. She was stripped of her directorship and was not paid dividends that were due to her.

In upholding the MD’s challenge to the ET’s ruling, however, the Employment Appeal Tribunal (EAT) found that the ET had failed properly to address the issue of whether it was her marital status that was the cause of her unfavourable treatment, as opposed to the fact that she was married to the shareholder.

The question was not whether she was badly treated because she was married to a particular person. The ET had failed to construct an appropriate comparator or to ask itself whether a hypothetical person in a close relationship with the shareholder, but not married to him, would have been treated any differently.

The EAT reached its conclusion with a heavy heart. The ET’s conclusion that she had been very badly treated by the MD, amongst others, could not be challenged. It had nevertheless failed to address its mind to the true issues in the case and its finding that the MD had subjected her to marital discrimination, contrary to Section 13(4) of the Equality Act 2010, could not stand.