To succeed in a claim for marital status discrimination, is it essential to show that the fact that someone was married rather than simply in a close relationship, was part of the ground for the unfavourable treatment?
Yes, held the EAT in Ellis v Bacon.
The Claimant, Ms Bacon, was a company director married to the company’s majority shareholder, Mr Bacon. In the course of acrimonious divorce proceedings, the Managing Director dismissed the Claimant and subjected her to various detriments at Mr Bacon’s behest. The tribunal upheld her marital status discrimination complaint.
The EAT overturned that decision. The tribunal had failed to construct the proper comparator, focusing on the fact of the Claimant being married, rather than looking at an appropriate hypothetical comparator, here someone in a close relationship with the majority shareholder but who was not married.
The EAT noted a previous EAT authority (Hawkins) arising from similar circumstances which had not been cited to the tribunal. The question is not whether the Claimant was badly treated because she was married to a particular person, ask oneself whether an unmarried woman whose circumstances were otherwise the same as the Claimant’s, including being in a close relationship with the majority shareholder, would have been treated differently.
Thanks to Ed McFarlane for preparing this case summary.