Can your marriage or relationship with the boss be a ground for a discrimination claim…?

17 January 2023

Historically, marriage discrimination was introduced (in 1975 for those you who are history buffs) because it was not uncommon for employers to dismiss women when they got married. Laws were introduced to protect married people from being treated less favourably, on the ground of their marital status, compared with people who were not married. This is now one of the protected characteristics under the Equality Act 2010.

But, under these laws what if you are dismissed because you are married to a particular person? Is that still protected under the law?

The courts have swung both ways on this point but in the recent case of Ellis v Bacon and another in November 2022 the Employment appeal Tribunal (EAT) clarified the interpretation of the law. Here’s what happened…

Ms Bacon, a director and shareholder of Advanced Fire Solutions Ltd (AFS), was married to Mr Bacon, its managing director and majority shareholder. When their marriage broke down (instigated by Ms Bacon) Mr Bacon, with the support of the MD of AFS (Mr Ellis), dismissed Ms Bacon under rather spurious allegations in relation to the misuse of company IT and a baseless report to the police. Ms Bacon lodged a claim against the MD in the employment tribunal who agreed that she had been discriminated against because of her marriage (and subsequent breakdown) to Mr Bacon. Mr Ellis appealed the decision in the EAT.

The EAT upheld the appeal: they disagreed with the tribunal’s decision and said that the question was whether Mr Ellis had treated Ms Bacon less favourably because she was married, not because she was married to Mr Bacon. But what’s the difference here? Under most discrimination laws, if you complain of a (mis)treatment because of a protected characteristic you are required to compare that treatment with someone (real or hypothetical) who does not share the protected characteristic which, in this case, would be someone who was not married. When you compare the treatment of Ms Bacon to a comparator who was not married to Mr Bacon, would the treatment have been the same? If the answers if yes, then it is not marriage discrimination. This is because the ‘treatment’ is not because of marriage per se, but because of the marriage to Mr Bacon. If Ms Bacon had been in a long term relationship with Mr Bacon as opposed to being married to him and their relationship had broken down would she have been treated the same… – the court said yes. This might be a hard pill to swallow but, thinking back to why the laws were introduced back in 1975, it was to protect woman from being dismissed when they got married not because they were married to a particular person.

Clearly not a happy conclusion for Ms Bacon, the Judge delivered his verdict with ‘a very heavy heart’ and clearly would have preferred a more favourably outcome for her, however, he had to reach the decision which was correct in law.

There are 9 protected characteristics to protect you in your employment: marriage and civil partnership being only one. If you think you have been treated unfairly because of a protected characteristic such as race, religion, sex, disability, gender etc then get in touch with our head of employment law, Nicole Humphreys through 01273 447 065, who will be happy to discuss your options with you.

For those interested in reading about this case here’s the link:

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