UK: Less Favourable Treatment Must Relate To Marriage Itself In Order To Be Unlawful Discrimination

Hawkins v Atex Group Ltd and others UKEAT/0302/11

This case provides a welcome departure from a difficult line of Employment Appeal Tribunal (EAT) decisions relating to discrimination on grounds of marital status. That line of cases, which culminated with Dunn (reported in our December 2011 eBulletin), suggested that an employer will have discriminated against an employee on the grounds of marital status if it subjects an employee to a detriment for reasons relating to their close relationship with another person where the two individuals are married.

In the present case however, a different EAT has disagreed and held that action based on close relationships, rather than on marriage itself, will not be discriminatory.

The facts of this case and Dunn were similar in that the employer dismissed a female employee for reasons related to their close relationship with their husband. In each case the female employee complained that the dismissal was direct discrimination on grounds of marital status.

In Dunn the husband had worked for the same employer and had been in dispute with them. Mrs Dunn alleged that her connection to her husband resulted in less favourable treatment in her grievance process, which had in turn resulted in her constructive dismissal.

In this case, the female employee was married to the Chief Executive of the employer. Her employment was terminated on the basis that her employment contravened an instruction to her husband that the company should not to employ family members of the board.

Implications

The decision in Dunn was unsatisfactory and problematic for employers. For example, it suggested that dismissing an employee due to the risk of them passing confidential information to their spouse would be an act of discrimination on the grounds of marital status.

However, this case makes the (arguably correct) distinction between treatment that is based on the fact of a person being married (unlawful), and treatment based on issues arising from a close relationship between two people, who might also happen to be married (lawful).

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