The marriage discrimination provisions of the Equality Act 2010 largely reflect the protection afforded from discrimination for married persons as set out in the original Sex Discrimination Act 1975. Marriage and civil partnership discrimination occurs when there is direct discrimination, indirect discrimination or victimisation on the basis of the union. Compensation is uncapped and not time-barred and tribunal awards can be substantial, particularly if there are malicious or aggravating circumstances.
Thankfully, the historic interests of the original Act in preventing unlawful actions against married women are mostly mute; also a well constructed ‘relationship at work’ policy can proportionately set out a legitimate aim for the business on personal relationships without resorting to ill-advised heavy restrictions or blanket bans. Valid considerations may include working in the same team or on the same projects, or protecting against bias where one party may be line manager to the other partner.
The Equality Act on marriage discrimination reflects current challenges faced by women, men and same-sex partnerships. The tribunal in Ms K Bacon v Advanced Fire Solutions Ltd went further by exploring who the claimant was married to. Ms Bacon was suspended pending investigation for the apparent misuse of company IT equipment, an action that failed to contain any specific allegations. Mr Bacon and Managing Director Mr Ellis had also made reports to the police of a love rival ‘having an affair with his wife and accessing the company IT network’. They made further reports of cyber breaches and unauthorised use of email, however the police on both occasions chose to take no further action.
Ms Bacon was dismissed for gross misconduct by letter and a subsequent appeal was dismissed by Ellis. A grievance raised in response by Ms Bacon remained unanswered throughout the process.
The tribunal heard a concurrent back-story running with the employment issues, that Ms Bacon had intended to divorce Mr Bacon, but wanted to remain in her role within the Company. Evidence showed Mr Ellis clearly sided with Mr Bacon; he removed access to accounting software, removed her as a signatory on account, advertised her position and struck her from the director’s list at Companies House without her permission. Mr Ellis also allowed company funds to be used to pay solicitors for divorce costs for Mr Bacon, a privilege not extended to the claimant.
On finding that Mr Bacon ‘was pulling Ellis’s strings’, the tribunal concluded that he had subjected Ms Bacon to marital discrimination and victimisation.
The judgement is a welcome further clarification on previous conflicting case law on this issue, where it was found at first instance in Dunn v Institute of Cemetery and Crematorium Management that who you were married to, fell outside of the scope of protection afforded by the Equality Act. This was overturned in the EAT, although it was interestingly non-committal in setting clear precedent going forward.
Employers should not treat employees differently on account of who their spouse is. This is likely to become relevant if a) you have husbands, wives or civil partners that work together in the same organisation; and b) you have policies that segregate husbands, wives or civil partners into different parts of the business, prevent working together or assigning partners different tasks.