Hawkins v Atex Group Ltd

Direct discrimination because of marriage requires treatment to be caused, at least in part, by the fact of marriage itself. Treatment motivated only by the closeness of a relationship, even where the relationship happens to be a marriage, does not fall within section 3 of the Sex Discrimination Act 1975. Treatment because an employee is married to a particular person may qualify where the marriage is an essential part of the reason, such as a marriage-specific legal consequence. The relevant comparison is ordinarily with a person in the same close relationship who is not married. A discrimination claim may be struck out where uncontested facts leave no realistic prospect of proving a marriage-specific reason.

The claimant was married to Atex’s chief executive and had previously provided consultancy services to the company. She became an employee and was later dismissed, together with her husband and daughter, because the board considered employment of family members created conflicts of interest, nepotism and perceptions of favouritism.

An Employment Judge struck out her claim under section 3 of the Sex Discrimination Act 1975. The claimant appealed, arguing that treatment because she was married to a particular person was necessarily discrimination because of marriage. The central issue was whether the pleaded reason was marriage-specific or merely the closeness of the relationship.

1. Appeal dismissed. The Employment Judge was entitled to strike out the claim.
2. Section 3 protects the fact of being married. The appropriate comparator is ordinarily a person in the same relevant circumstances who is not married, commonly a partner or common-law spouse. Direct discrimination involves less favourable treatment and the reason why question, which are usually two ways of addressing the same underlying issue, as explained in Shamoon v Chief Constable of Royal Ulster Constabulary [2003] ICR 337.
3. Treatment because the claimant is married to a particular person can fall within section 3 if the fact of marriage is part of the ground for the treatment. It does not do so where the employer is concerned only with the closeness of the relationship and would have acted in the same way had the parties been unmarried. Skyrail Oceanic Ltd v Coleman [1980] ICR 596 and Chief Constable of Bedfordshire Constabulary v Graham [2002] IRLR 239 were consistent with that approach.
4. The uncontested facts showed concerns about conflicts of interest, nepotism and family influence. Those concerns would equally have arisen if the claimant and the chief executive had been common-law spouses. There was therefore no realistic prospect of proving a marriage-specific reason. The Tribunal could make a robust decision on a strike-out application where only one outcome was realistically possible.
5. The Tribunal doubted aspects of the reasoning in Dunn v Institute of Cemetery and Crematorium Management (UKEAT/0531/10) to the extent that it rejected the distinction between marriage-specific treatment and treatment because of a close relationship. A stereotype can amount to discrimination only if it is specific to married persons.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal was dismissed. The strike-out of the section 3 discrimination claim was upheld.
• Employment Tribunal: Employment Judge Griffiths struck out the claim on the basis that the pleaded facts could not constitute discrimination on grounds of marital status.