The Employment Appeal Tribunal has handed down a Judgment which calls into question some of the reasoning in a recent case which said that discrimination on grounds of marital status could be unlawful if the reason was that the person was married to a particular individual.
Prior to the case of Dunn it was unclear whether the Claimant had to show that the employer discriminated against the employee because they were married full stop or only had to show that marriage to a specific person was a problem when marriage to another would not have been. Dunn said it was the latter.
However the EAT has now heard the case of Mrs Hawkins.
Her husband was the Chief Executive of the First Respondent company. In 2009 Mrs Hawkins became an employee and in 2010 Mr and Mrs Hawkin's daughter also took up a role with the company.
In late 2009 the First Respondent's Chairman had instructed Mr Hawkins not to employ any family members in the business, to avoid allegations of nepotism and the risk of conflicts of interest (or so it claimed - this was an issue in dispute in the case.)
Mother and daughter were dismissed on the basis that the First Respondent said that they had been employed in breach of this instruction.
Mrs Hawkins claimed that this was unlawful discrimination against her on the grounds of her marital status. The First Respondent applied to the Employment Tribunal to have her Claim struck out as having no reasonable prospect of success and the Tribunal agreed and struck out the Claim.
Mrs Hawkins appealed to the EAT. By the time the EAT gave its Judgment Dunn had been decided (which was not the case when the Tribunal had made its original decision or when the EAT had heard oral submissiosn on the appeal.
The EAT carefully considered the case law including Dunn and rejected the appeal. It found that to the extent that Dunn suggested that discrimination because of marriage to a particular person was always unlawful this was not correct.
If someone is treated less favourably because they are married to a particular person in circumstances where if they had another form of close personal relationship (e.g living together, father and daughter) they would not have been then their marital status is the reason for the treatment and that is unlawful.
If the treatment would have been the same, as would have been the case here (as evidenced by the dismissal of the daughter) then the marital status was not the reason for the discrimination and it is not unlawful.
As such the Tribunal had been right to strike out the case.
Marital status discrimination is rarely alleged. The legislation dates back to a time when many employers had a policy of dismissing female employees as a matter of course when they married.
The decision in this case does not mean that someone can always be dismissed with impunity because they are married to a particular person. If Mrs Hawkins could have pointed to a male comparator who had been treated differently then she may have had a claim for sex discrimination. If she had the necessary 12 months' service she might have been able to claim Unfair Dismissal. Most importantly, if 2 cohabitees had worked for the company without difficulty her Claim might well have gone further.