Marriage discrimination after a relationship breakdown

Rules about marriage discrimination were introduced into law in 1975 because some employers dismissed female employees once they got married.  This historical protection has been used in recent times by women who are dismissed from their jobs not because they are married per se, but because they are married to particular men, often senior men and often after those personal relationships have broken  down.

The recent case of Ellis v Bacon has cleared up some prior inconsistency in appeal decisions in cases of this kind.

The employee was a shareholder and director in a business, married to the managing director and senior shareholder. Their relationship broke down and the employee asked to separate from her husband. She was subsequently dismissed by the new managing director for spurious reasons relating to allegations of IT misuse. She brought claims for unfair dismissal and marriage discrimination – less favourable treatment because she was married to Mr Bacon. The tribunal agreed. The dismissing officer had sided with Mr Bacon and cooperated with the employee’s poor treatment including her dismissal. This was direct marriage discrimination, less favourable treatment because of the employee’s marital status in being married to Mr Bacon. The employer appealed.

The EAT agreed reluctantly that the employer was right. The correct comparator here was someone who was in the same situation as the employee but not married. Someone who had been in a close relationship with Mr Bacon, but not married, would have been treated the same as the employee. The test was whether the employee had been treated badly because she was married, not because she was married to Mr Bacon. Marriage itself was not the reason she was treated badly here.

This case shows that the ambit of marriage discrimination is intentionally narrow, perhaps even a historical relic that may no longer be relevant in 2023. The EAT was clearly reluctant to come to that decision because the employee had been treated so badly. However, they were unable to stretch the law beyond its intended parameters.

This situation - an acrimonious relationship breakdown which bleeds into workplace dysfunction - arises mainly with small businesses where romantic partners are also business partners. Although such treatment may not be marriage discrimination, employers should beware. The business in question was in administration by the time of the appeal hearing and was subsequently wound up. Businesses that operate in this kind of pernicious way may not prosper.