Marriage Discrimination: Who is the Correct Comparator?

Marriage discrimination was initially introduced in the Sex Discrimination Act 1975 because it was not uncommon for employers to dismiss women when they got married.

It was designed to protect married people from being treated less favourably, on the ground of their marital status, compared with people who were not married. More recently, marriage and civil partnership is one of nine protected characteristics covered by the Equality Act 2010. It is unlawful for an employer to discriminate directly by treating a job applicant or employee less favourably than others because that applicant or employee is married or a civil partner.

In the case of Ellis v (1) Bacon and (2) Advanced Fire Solutions Ltd (AFS) the Employment Appeal Tribunal (EAT) had to determine who the correct comparator should be in a claim for marriage discrimination.

What were the facts of the case?

Kirsty Bacon joined Advanced Fire Solutions (AFS) as a bookkeeper in 2005. She subsequently married Jonathon Bacon who was AFS’s managing director and majority shareholder. Ms Bacon also became a director and shareholder of AFS.

In 2012, Mr Ellis joined AFS. He became a director and 10% shareholder in 2013 and was appointed as managing director in August 2017. Ms Bacon informed Mr Bacon in the same month that she wished to separate, and an acrimonious divorce commenced. False allegations were raised against Ms Bacon that she had misused company IT and she was suspended from AFS on 18 January 2018. She was subsequently dismissed by a letter signed by Mr Ellis on 29 June 2018. A baseless complaint was also made about her to the police.

An employment tribunal found that Mr Ellis had sided with Mr Bacon in relation to the marital dispute and was compliant with him removing Ms Bacon's directorship, not paying her dividends, ignoring her grievance, reporting her to the police, and suspending and dismissing her on spurious grounds. The employment tribunal found that these actions amounted to less favourable treatment of Ms Bacon by Mr Ellis because of her marital status as a wife to Mr Bacon. The employment tribunal therefore upheld Ms Bacon’s claim of direct discrimination against AFS and Mr Ellis.

Mr Ellis appealed to the EAT, arguing that the tribunal had failed to properly apply the statutory test in determining the cause of the unfavourable treatment, or to consider the appropriate hypothetical comparator.

What did the EAT discover?

The EAT found that the tribunal had erred in failing to apply the correct statutory test. For direct marriage and civil partnership discrimination to occur, less favourable treatment must be "because of" marriage and civil partnership. The question therefore should have been whether Mr Ellis had treated Ms Bacon less favourably because she was married, not because she was married to Mr Bacon. The appropriate hypothetical comparator should have been someone in a close relationship with but not married to Mr Bacon, and the tribunal should have considered whether such a person would have been treated differently. The tribunal had failed to establish that someone in a close relationship to Mr Bacon, but who was not married to him, would not have been treated in the same way, which is why the EAT agreed with Mr Ellis.

Interestingly the EAT Judge in this case stated that he gave the judgment with a very heavy heart because Ms Bacon had been very badly treated by Mr Ellis, but that he had to apply the law.

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