Marital Discrimination: What Happens when Your Employees Split?

Today, some tabloids have been covering what they are calling the “first known case of marital discrimination.” This is the case of Bacon v Advanced Fire Solutions. In fact, marriage and civil partnership has always been one of the protected characteristics under the Equality Act 2010, alongside age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Marriage and civil partnership discrimination: the law

It is unlawful for an employer to discriminate against an employee because they are either married or in a civil partnership; it does not apply if you are engaged to be married. Interestingly, the distinction is based on the status of marriage (eg, the fact of your marriage) and not who that person is married to.

Direct Discrimination

Direct discrimination would occur in situations where employees are treated worse than other workers in your workplace because they are married or in a civil partnership.

Indirect Discrimination

Indirect discrimination would be seen to occur if an employer has a policy or way of working that puts people who are married or in a civil partnership at a disadvantage. Such a policy is only permitted if your employer is able to show that there is a good reason for it and if the implementation of the policy is appropriate and necessary.

Another example of indirect discrimination may be where a company tradition is to attend a single’s resort every year; this might be inappropriate for a person who is married and they may not attend the resort, which would mean that they would miss out on this perk.

Victimisation

Victimisation is when an employee is treated badly as a result of having made a complaint of marriage or civil partnership related discrimination. Victimisation would also be held to occur if you are in support of an individual who has made a complaint of such discrimination.

It is not legally possible to be harassed for marriage and civil partnership status.

What happened in this case?

In this case, an employer of two married co-workers was discriminatory in choosing to fire an employee’s wife following their split.

The employer, Mr Ellis, fired Ms Bacon for an alleged IT breach, reported her to the police for theft and withheld a £31,560 dividend. It was alleged that Mr Bacon had “pulled his strings” to exclude and finally dismiss Mrs Bacon, because Mr Bacon was supposedly suspicious that she was seeing another man. Mr Bacon then went on to use the company funds to pay for his divorce, with Mr Ellis’ consent.

The panel found:

“It is clear that the claimant was being subjected to less favourable treatment on the grounds of her marital status and Mr Ellis simply has no other explanation for that treatment other than he was siding with Mr Bacon who he no doubt felt was where his future lied within the company rather than that with Mrs Bacon.

The reason for that treatment was clearly the claimant’s marital status to Mr Bacon.”

It was held to be clear Mrs Bacon was being subject to less favourable treatment on the grounds of her marital status; Mr Ellis had no other explanation for such treatment other than the fact he had taken to side of her husband and was therefore held to have committed marital discrimination.

It was also held that Mr Ellis had vindictively demanded that Mrs Bacon return the iPads which were used by her family, as a direct retaliation for her having raised a grievance regarding the discrimination. This was a clear case of victimisation.

Does it change anything?

In short, no, but interestingly, the Tribunal did find that Mrs Bacon was discriminated against because of her marriage to Mr Bacon. This somewhat goes against the precedent which is on the basis of marital status rather than who that marriage is to. Of course, by virtue of being married to Mr Bacon, she also has her marital status, so it is unclear whether the Tribunal intended to make any variations to the law here.

Why is it important? Because some people have tried to run cases where they are (for example) not hired because of who their husband is, or where they are fired, because of who they are married to. This would be claims not based on marital status, but based off who they are married to.

If either party appeals this matter, we may yet see some clarity on this point from the Appeals Tribunal.

Our advice to employers

Where your employees are in a relationship or married, you always run the risk of a potential break up which the employer (especially in small companies) may become a casualty of. With this in mind, some companies have relationships at work policies, which cover the event of a split and make the companies’ objectivity clear, in advance of any issues occurring.

Where there is a divorce between employees, to avoid discrimination, an employer should:

  • Stay objective! Insofar as possible, the employer should avoid being involved in the issues and try not to take sides.
  • Be as consistent as possible; what is said to one party, should be said to the other.
  • Consider giving employees more flexible working arrangements, perhaps to attend mediation, divorce proceedings, or just to avoid each other in the workplace.
  • Discourage office gossiping insofar as possible.
  • If the situation considerably deteriorates, consider whether to offer a settlement agreement and a negotiated exit to one party. Should Mr Ellis have given this option consideration back in 2017, he would likely have saved himself reputational damage and (probably) legal fees. Although it can be difficult to suggest one party lose both their marriage and their job, it may be a more amicable outcome in the long term.

If you feel you have been subject to any form of discrimination by virtue of your marital status, please contact us.

By Alicia Collinson

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