Ellis v Bacon: A Study in Martial Status Discrimination

/ employment

In January 2023, the Employment Appeal Tribunal (EAT) ruled that, in order to succeed in a claim for marital discrimination, it was necessary to show that the reason for the unfavourable treatment was the fact that someone was married rather than just in a close relationship.

Background

In the case of Ellis v Bacon, Ms Bacon (a director at Advanced Fire Solutions) was dismissed from the company in the course of divorce proceedings with her husband. Ms Bacon was dismissed by Mr Ellis but her husband, Mr Bacon, was the majority shareholder at the same company. Ms Bacon brought a claim in the Employment Tribunal, arguing unfair dismissal and direct discrimination of sex and marriage.

In the first instance it was held that Mr Ellis had acted at the behest of Mr Bacon and had dismissed Ms Bacon on illegitimate grounds. She had therefore been dismissed as a result of her divorce from another employee and was a victim of discrimination.

On Appeal

On appeal to the EAT, the question was whether, in order to succeed in a claim for marital status discrimination, it was necessary to show that the fact that someone was married (and not just in a close relationship) was part of the reason for the unfavourable treatment.

The EAT overturned the decision as they had failed to compare Ms Bacon to someone who was in a close relationship with the majority shareholder, but not married to them. On that basis, Mr Ellis’ appeal was allowed. Ms Bacon would have to show that she was discriminated against because of her marriage to Mr Bacon, and not just because of their close relationship.

What Does This Mean?

Whilst marriage or civil partnership is a protected characteristic, it’s scope is rather limited. This case demonstrates that the intention is to protect those who are treated less favourably as a result of the marriage, rather than who they are married to.

If you have any questions about the points raised above or would like to discuss a potential discrimination claim, please get in touch with Charlotte Braham at charlotte.braham@allanjanes.com or on 01494 893529.