The Employment Appeal Tribunal (EAT) has overturned the decision of a tribunal in Ellis v Bacon and anor that an employee had been directly discriminated against on grounds of marital status. It held that the tribunal had failed to consider the correct hypothetical comparator.
The claimant, a director and shareholder of Advanced Fire Solutions Ltd (AFS), was married to AFS's managing director and majority shareholder. The claimant informed her husband that she wished to separate and an acrimonious divorce followed in which false allegations were raised against the claimant that she had misused company IT. She was dismissed by a letter signed by Mr Ellis (who was appointed as managing director in 2017). The tribunal found that Mr Ellis had sided with the claimant's former husband and was compliant with him in removing her directorship, not paying her dividends and dismissing her on spurious grounds. It found this to be less favourable treatment because of the claimant's marital status.
The EAT disagreed on appeal. It held that the tribunal had failed to apply the correct statutory test; the question was whether Mr Ellis had treated the claimant less favourably because she was married, not because of who she was married to. It had also failed to identify the correct hypothetical comparator. The comparator would be someone in a relationship akin to marriage with the claimant's husband, but who was not actually married to him. The tribunal had failed to establish that someone in a close relationship to the claimant's husband, but who was not married to him, would not have been treated in the same way.
Take note: Marriage and civil partnership are protected characteristics under the Equality Act 2010. The question in a case such as Ellis is whether the claimant suffered the treatment complained of because she was married to the individual in question. The relevant comparator will be someone in a hypothetical relationship with the claimant's marital partner that equates to marriage. The EAT was sympathetic to the claimant, given the ill-treatment which was clearly meted out to her, but held that the less favourable treatment was not marriage discrimination.
