Ellis v Bacon and Advanced Fire Solutions Ltd
It’s Friday! Not only are you close to the weekend but you can read another case law update. Last week we looked at redundancy consultation processes and the pitfalls of not doing them.
This week we are looking at marriage/civil partnership discrimination. This occurs when someone receives less favourable treatment due to them being married/in a civil partnership in comparison to someone who is not. For example, if an employer has a policy of employing single people that is discriminatory to those who are married.
This Week’s Question
When considering a marriage discrimination case, who is the correct comparator?
Ms Bacon, the Claimant, commenced employment with Advanced Fire Solutions, the Respondent, as a bookkeeper. The Claimant met and subsequently married Mr Bacon, the Respondent’s managing director, and became a director and shareholder thereafter. The Respondent then employed Mr Ellis who became managing director although Mr Bacon retained shares and directorship.
Some time later the Claimant separated from Mr Bacon and acrimonious divorce proceedings ensued. In addition to the divorce proceedings the Claimant was accused of misusing company IT equipment at work and a spurious complaint was made about her to the police. She was subsequently dismissed by Mr Ellis acting on behalf of the Respondent. The Claimant raised a grievance but this was not addressed.
The Claimant commenced claims for unfair dismissal and marriage/civil partnership discrimination. The Employment Tribunal upheld both claims. In relation to the discrimination claim it held the Claimant had been dismissed by Mr Ellis due to him siding with Mr Bacon. Had the Claimant not been married to Mr Bacon she would not have been dismissed.
The Respondent appealed and the EAT allowed the appeal. The EAT held that the tribunal had erred when identifying a comparator to the Claimant. Rather than comparing the Claimant to a single person who was not married it should have examined whether a person in a close romantic or intimate relationship who was not married to Mr Bacon would also have been dismissed.
The Takeaway Point
In cases of marriage discrimination the parties need to consider whether the comparator is merely a single person, or, someone in similar circumstances who is not married. In this case the Respondent was let off the hook for the discrimination claim. However, the unfair dismissal claim still succeeded as whether someone is married or in a close relationship, you cannot use the breakdown of that relationship as reason to dismiss them!
