Rev. J. Gould v Trustees of St John's Downshire Hill

Direct discrimination because of marriage under sections 8 and 13 of the Equality Act 2010 is engaged where married status forms an operative part of the employer’s reason for treatment. Marriage need not be the sole or main reason.

Relationship or marital difficulties do not inherently amount to marriage discrimination. The question is factual and context-sensitive: whether the employer acted because the claimant was married, rather than because of a close relationship which happened to be a marriage. A pleaded case alleging that an employer attached particular importance to marriage, and treated the claimant adversely because he was married and had marital difficulties, may disclose a triable composite reason. It should not be struck out where that factual issue is disputed.

The claimant, a church minister, was summarily dismissed after a period in which the respondent had raised concerns about the breakdown of his marriage and his ability to continue in ministry. He alleged that the stated breakdown of trust and confidence concealed the real reason for dismissal: his married status and marital difficulties.

An Employment Judge struck out his direct and indirect marriage-discrimination claims for having no reasonable prospects of success. The indirect claim was not challenged on appeal. The appeal concerned whether the pleaded direct-discrimination claim engaged the protected characteristic of marriage under section 8 of the Equality Act 2010, or alleged only adverse treatment because of relationship difficulties.

1. Appeal allowed. The Employment Judge erred in striking out the direct discrimination claim. The decision striking out that claim was set aside.

2. Rule 37(1) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 permits strike-out where a claim has no reasonable prospects of success. Particular care is required in discrimination cases where material facts are disputed. A claim may be struck out where the facts asserted cannot amount to unlawful discrimination, but the tribunal must take the claimant’s case at its highest for that purpose.

3. Sections 8 and 13 of the Equality Act 2010 protect the fact or status of being married. The status need only play an operative part in the employer’s reasons for less favourable treatment. The inquiry is not one of legal, proximate or “but for” causation. It asks why the alleged discriminator acted, including any conscious or unconscious factual reason.

4. Hawkins v Atex Group Ltd and Others was not inconsistent with that approach. Treatment because of the closeness of a relationship which happens to be a marriage is not enough. However, treatment may be marriage-specific where marriage itself is an essential part of the employer’s reason.

5. On a fair reading of the pleading, the claimant alleged a composite reason: he was married and had marital difficulties. His case was that the respondent attached particular importance to marriage and objected to marital difficulties in a married minister, rather than merely to relationship difficulties. That allegation was analogous to the marriage-specific reasoning considered in Chief Constable of the Bedfordshire Constabulary v Graham and raised a triable factual issue.

6. A proper hypothetical comparator retains suitably comparable facts while removing marriage from the equation. The respondent’s examples concerning bigamy, adultery, or sexual relationships outside marriage did not answer the pleaded case. Those matters may supply a reason for treatment distinct from married status, depending on the facts.

• Employment Appeal Tribunal: Allowed the appeal and set aside the Employment Judge’s strike-out of the direct marriage-discrimination claim.
• Employment Tribunal: At a preliminary hearing, struck out the claimant’s direct and indirect discrimination claims as having no reasonable prospects of success. The indirect-discrimination ruling was not challenged on appeal.