Summary

Two recent Employment Appeal Tribunal (“EAT”) decisions have reached different conclusions on the tricky issue of whether it is discrimination on the grounds of marital status (a form of unlawful discrimination) if an employer treats a woman less favourably not because she is married, but because she is married to a particular man. In Dunn - v- The Institute of Cemetery and Crematorium Management the EAT held that any less favourable treatment because someone is married is unlawful, even if it is because they are married to a particular person rather than because of the fact of their marriage. However, in the slightly later case of Hawkins - v - Atex Group Ltd a different division of the EAT held that discrimination on marriage grounds only occurred if the ground for the treatment is that the couple are married rather than that they are in any type of close relationship.

Facts

Dunn - v - The Institute of Cemetery and Crematorium Management

Mrs Dunn was initially a volunteer at The Institute of Cemetery and Crematorium Management (the “Institute”) and became an employee in December 2007, with the intention that she would set up an office in the north of England. Her husband was also employed by the Institute. Mrs Dunn was told in February 2008 that her sick pay entitlement was going to be changed. Whilst she was being consulted about this change, issues arose about her performance and responsibilities which upset her and she raised a grievance about the changes to her contract. During the course of the grievance procedure, the Institute’s Chief Executive presented evidence to the person hearing Mrs Dunn’s appeal against the outcome of her grievance. Mrs Dunn was not shown this material and it was about Mrs Dunn’s husband and not actually relevant to her own grievance. Ultimately, Mrs Dunn went off sick, alleging sex discrimination and victimisation. A week later the board decided not to continue with the proposed new northern office. It started redundancy consultation with Mrs Dunn.

Mrs Dunn contended that the Institute had discriminated against her because she was married to Mr Dunn, who had also brought a grievance against the Institute. The relevant law was at that time contained in section 3 of the Sex Discrimination Act 1975, which said that a person discriminates against A if he treats A less favourably on the ground that A is married or a civil partner. The Employment Tribunal found that there was no reason to think that the Institute’s Chief Executive would have intervened in Mrs Dunn’s grievance procedure to present material about her husband if she had not been married to Mr Dunn. However, there was also no evidence that the employer would have acted in this way if she had been married to anyone else. Further, the employer would probably have behaved in this way if she had not been married to Mr Dunn but had been in a long-term relationship with him. In other words, the employer’s actions were on the grounds that she was married to that particular person rather than her marital status in itself.

The Employment Tribunal found that there was no discrimination on grounds of marital status because the less favourable treatment was connected to Mrs Dunn’s marriage to Mr Dunn, rather than the fact that she was married. Mrs Dunn appealed to the EAT.

Hawkins – v - Atex Group Ltd

Mrs Hawkins was married to the Chief Executive of Atex Group Ltd (“Atex”). Mr Hawkins had joined Atex in 2004. Mrs Hawkins started working for Atex as a consultant providing HR and marketing advice in 2006. She became an employee of Atex on 1 January 2010. Atex claimed that this was in breach of an instruction that had been given to Mr Hawkins on 30 April 2009 that members of his family should not be employed by Atex “in an executive or professional capacity” after the end of 2009 because such appointments could lead to conflicts of interest, favouritism and undue influence. Mrs Hawkins was suspended on 1 June 2010 and shortly afterwards dismissed. Mr Hawkins and the couple’s daughter, who worked for Atex as Global Human Resources Manager, were dismissed at the same time. 

Mrs Hawkins brought a claim alleging that Atex had discriminated against her on grounds of her marital status. The Employment Tribunal struck out the claim on the basis that it had no reasonable prospects of success, stating that Mrs Hawkins was not dismissed because of marriage alone but because she was married to the CEO. Mrs Hawkins appealed to the EAT. 

The Employment Appeal Tribunals’ Decisions 

The two different divisions of the EAT reached different conclusions on the issue of when discrimination on the grounds of marriage occurs. In Dunn – v - The Institute of Cemetery and Crematorium Management the EAT decided that discrimination on grounds of marital status should be interpreted broadly and that Mrs Dunn was protected against discrimination both because she was married and because she was married to a particular person. It also found that the European Convention on Human Rights was relevant. The Employment Tribunal is required to interpret legislation (such as the Sex Discrimination Act) in line with convention rights. The EAT held that Mrs Dunn’s right to respect for private and family life (Article 8) and right to marry (Article 12) were both engaged. The case was remitted to the Employment Tribunal to decide whether or not discrimination had occurred taking into account her convention rights. 

In Hawkins – v - Atex Group Ltd the EAT said that in order to decide if the claimant had been discriminated against on grounds of marriage, the question was whether she had been treated less favourably than a comparator who was not married but whose circumstances were otherwise the same. In other words, the relevant comparator was someone who was the “common-law spouse”1 of the CEO. Would such a person have been treated in the same way as Mrs Hawkins? The EAT held that the treatment would have been the same and therefore that there was no “marriage-specific” reason for Mrs Hawkins’s treatment and her appeal failed. The decision in Hawkins casts doubt on the reasoning of the alternative branch of the EAT in Dunn. 

Commentary

We now have two conflicting EAT decisions and it would be helpful to have a Court of Appeal decision to clarify the situation. Until that time, the judgment in Hawkins is probably to be preferred because it considered earlier cases to which the Dunn EAT was not referred and because it expressly considered the Dunn decision and rejected its reasoning. Since these cases were brought, the Sex Discrimination Act 1975 has been replaced by the Equality Act 2010. However, the equivalent provision in the Equality Act is substantially the same. It is worth noting that although these cases were about marriage, the same provision protects individuals from discrimination because they are in a civil partnership.

Comments from other jurisdictions

Austria (Martin Risak): The Austrian Equal Treatment Act (Gleichbehandlungsgesetz) forbids discrimination based on sex, especially with reference to marital or family status. As in Directive 2002/73/EC this form of discrimination is – not very systematically – seen as a sub-group of sex discrimination. As there are no comparable published Austrian court decisions we can only guess how an Austrian court might have ruled if cases such as the ones at hand had been brought before it. In my opinion, they would not have been seen as discriminatory based on marital status but because they contravened bones mores (Gute Sitten). In other words, the decisions taken by the employers were too reliant on the personal circumstances of the employee. In the Dunn case the dismissal might have been regarded as an indirect reprisal against the husband, who had brought a grievance against the Institute. In the Hawkins case, a court might feel that a less draconian solution could have been used to handle the issues of conflict of interest, favouritism and undue influence, for example, by involving a third party in the recruitment of family members.

Subject: Gender discrimination

Parties: Dunn – v - The Institute of Cemetery and Crematorium Management and Hawkins –v- (1) Atex Group Ltd, (2) Age Korsvold, (3) Beatriz Malo de Molina and (4) Mr Alan Reardon Respondents

Court: Employment Appeal Tribunal

Dates: 2 December 2011 and 13 March 2012

Case numbers: UKEAT/0531/10 and UKEAT0302/11

Hard copy publication: IDS Brief

Internet publication: www.bailii.org