Beware pitfalls of marital discrimination – Donna Reynolds

Not all types of inequity are obvious – and there may well be unconscious biases at play, writes Donna Reynolds

Marital status is a protected characteristic under the Equality Act 2020, covering any formal union which is legally recognised as such in the UK or in a civil partnership

In recent years, there has been an increased focus on the prevalence of workplace discrimination and the changes needed to tackle the issue. However, not all types of discrimination are obvious and where it persists, there may be unconscious biases at play. Marital discrimination is a very good case in point.

Marital status is a protected characteristic under the Equality Act 2020 and applies to individuals who are married (covering any formal union which is legally recognised as such in the UK) or in a civil partnership.

In Ms K Bacon v Advanced Fire Solutions Ltd and Mr G Ellis, which is claimed to be the first-known case of marital discrimination, it was held by Norwich Employment Tribunal that the claims against Graham Ellis for direct marital discrimination and victimisation are well founded.

Donna Reynolds is an Employment Partner with Blackadders.

Kirsty Bacon had joined Advanced Fire Solutions Ltd in 2005 as a bookkeeper. In August 2008 she married Jonathan Bacon, a director and shareholder in the company. Earlier that year, she had acquired shares in, and was appointed a director of, the company. Mr Ellis joined as managing director in 2012.

In August 2017 Ms Bacon told her husband that she wanted to separate, but she continued to work in the business. However, in September 2017 Mr Ellis told the accountants that she would no longer be working for the company. He arranged for her access to accounting software to be removed and had removed her as a signatory on the company bank account.

On 1 November, 2017 Ms Bacon told her husband that she wanted a divorce. The next day, her position with the company was advertised and a week later, without her knowledge, she was removed as a director at Companies House.

In January 2018 Ms Bacon was informed by an HR consultant (instructed by Mr Ellis) that an investigation was being conducted into her alleged misuse of company IT, email system and misuse of confidential and financial information. It later transpired that this allegation had also been reported to the police.

Ms Bacon was subsequently dismissed and her appeal against dismissal, heard by Mr Ellis, was unsuccessful. Ms Bacon had raised a grievance but that was not addressed by either the HR consultant nor Mr Ellis.

The tribunal unanimously concluded that Mr Ellis had taken sides with Ms Bacon’s husband by stopping payment of her dividends, agreeing to exclude her, reporting her to the police, dismissing her and disregarding her grievance.

It was clear to the tribunal that Ms Bacon was “being subjected to less favourable treatment on the grounds of her marital status and Mr Ellis simply has no other explanation for that treatment other than he was siding with Mr Bacon whom he no doubt felt was where his future lay within the company rather than that with Ms Bacon”.

There are often ‘invisible’ factors that shape decision-making and influence decisions in recruitment, promotion and staff development.

Our opinions about marriage and civil partnerships which will vary significantly depending on any number of factors including whether we are or have been married or in a civil partnership and whether our experience is or was a happy one or acrimonious.

Many can materialise in often subtle ways, for example:

The employer who doesn’t offer certain roles or overtime to married employees or those in a civil partnership because they will prefer, or need to, spend more time at home;

The HR manager who has been through a bad relationship or break-up doesn’t allow a married or civil partnership couple to work together because their inevitable break-up will interfere with work;

The line manager who offers work trips and hospitality to employees based on how they perceive their partner will be liked by clients or customers in an effort to secure more work for the business.

An employment tribunal will examine the ‘reason why’ an individual was treated less favourably, and the Equality and Human Rights Commission Code of Practice also emphasises that protected characteristic does not have to be the only or even the main cause of any alleged unfavourable treatment.

Employers should always remember that a perception or misconception can still taint what would have otherwise have been a reasonable or fair decision with discrimination.

Donna Reynolds is an employment partner with Blackadders