Dunn v Institute of Cemetery and Crematorium Management

Protection against discrimination on grounds of marriage is not confined to treatment because a person is married in the abstract. It includes marriage-specific treatment, including treatment because the person is married to a particular partner.

The protection extends correspondingly to civil partners. It does not require the court to add the wider concept of family status to the statutory scheme. Claims based on the two disputed incidents were remitted for reconsideration. The victimisation finding was upheld.

The claimant was employed by the respondent and brought claims of unfair dismissal, victimisation, sex discrimination and discrimination on grounds of marital status. The Employment Tribunal upheld unfair dismissal and victimisation but rejected the marital-status claim, construing section 3 of the Sex Discrimination Act 1975 as protecting only persons treated unfavourably because they were married, rather than because they were married to a particular person.

The claimant appealed. The respondent cross-appealed against the victimisation finding. The central issue was whether marriage-specific treatment fell within the statutory protection.

1. Appeal allowed in part. The Employment Tribunal adopted an incorrect construction of section 3 of the Sex Discrimination Act 1975.
2. The statutory protection covers a person who is treated less favourably because of the particular marriage in which that person is involved. Treatment need not be directed against married people generally. The EAT’s decision in Chief Constable of the Bedfordshire Constabulary v Graham was correctly decided and was followed.
3. The same reasoning applies to a person in a civil partnership. The Tribunal did not decide whether the protection extended to other forms of relationship.
4. The 1976 Equal Treatment Directive did not require, and could not justify, interpolation of the wider concept of family status into section 3. Family status was broader than marital status, and Parliament had repeatedly legislated specifically for marriage and civil partnership.
5. The panel expressed the view that Articles 8, 12 and 14 ECHR were engaged and that the Tribunal should consider the Convention challenge, applying section 3 of the Human Rights Act 1998. This formed an alternative and conditional part of the reasoning.
6. The findings concerning the failure to call witnesses at the grievance meeting and the production of evidence at the appeal were remitted. The Tribunal had misdirected itself about the adviser’s status and had wrongly rejected the claimant’s case that she had passed the first stage of the burden of proof under Igen v Wong.
7. The cross-appeal on victimisation was dismissed. The Tribunal had directed itself correctly and was entitled to infer victimisation from the chronology and the abrupt change in the respondent’s position.

• Employment Appeal Tribunal: allowed the claimant’s appeal on the construction of marital-status protection, remitted two discrimination findings to the Employment Tribunal, and dismissed the respondent’s cross-appeal on victimisation.
• Employment Tribunal: upheld unfair dismissal and victimisation, but dismissed the claims of sex and marital-status discrimination.