Gould v St John’s Downshire Hill

The fact that marital difficulties form part of the background to an employer's decision does not, of itself, constitute direct marriage discrimination. Instead, a tribunal must ask whether the decision‑maker was subjectively influenced by the claimant's married status. If being married (or beliefs about marriage) had a significant influence on the decision, there is direct discrimination. If the employer acted because of conduct or its effects that would have led to the same outcome for an unmarried person, there is no direct marriage discrimination.

The claimant was a long‑standing minister dismissed after a prolonged breakdown in relations with trustees, staff and parts of the congregation. He alleged direct discrimination because of marriage and unfair dismissal following separation from his wife. A full Employment Tribunal found dismissal was for an irretrievable breakdown in relationships and not because of his marital status. The claimant appealed to the Employment Appeal Tribunal, challenging the tribunal's approach to the Equality Act 2010 tests for direct marriage discrimination and burden of proof. The EAT upheld the tribunal's findings and dismissed the appeal.

1. Outcome: the appeal is dismissed. The Employment Tribunal was entitled to find that the trustees dismissed the claimant because of an irretrievable breakdown in relationships and not because of his marriage or its breakdown (see paras [227]; [231]; [252]).
2. Legal principle on direct marriage discrimination: the protected characteristic is being married or a civil partner. The correct question is whether that characteristic subjectively influenced the decision‑maker. The fact that marital difficulties form part of the context does not necessarily mean marriage was a reason for dismissal (see paras [58]–[66]; [100]–[102]).
3. Significant‑influence test and reasoning: it is sufficient that marriage had a significant influence; it need not be the sole or main reason. But tribunals must distinguish between (a) the status/characteristic itself and (b) conduct arising from or manifesting that status. If the employer would have acted the same way regardless of marital status, there is no direct marriage discrimination (see paras [61]–[66]; [100]).
4. Application to facts: the tribunal's detailed factual findings showed many instances of conduct and its effects that produced loss of trust and confidence. Those features, not the fact of marriage or a belief that 'broken marriage equals broken ministry', were the trustees' reasons for dismissal. The EAT accepted those findings (see paras [224]–[231]; [252]).
5. Burden of proof: the tribunal was entitled to proceed on the basis that a prima facie case existed and then assess whether the respondent disproved discrimination. The tribunal had regard to the guidance in Igen Ltd v Wong and applied the burden provisions of the Equality Act 2010 (see paras [120]; [139]–[146]).
6. Occupational requirement defence: Schedule 9 to the Equality Act 2010 permits limited religion‑based requirements for posts serving organised religions. That defence does not narrow the definition of direct marriage discrimination; it is a separate statutory exception and must be applied where engaged (see paras [113]–[116]; [119]–[119(d)]).
7. Procedure and remedy: the EAT rejected challenges to the Tribunal's fairness and remedies reasoning because they depended on overturning the discrimination finding. The tribunal's alternative findings on contributory fault and hypothetical dismissal in any event were academic and not disturbed (see paras [152]; [154]; [155]).
8. Order: the appeal is dismissed.

• Employment Tribunal (London Central) – reserved judgment dismissing direct marriage discrimination and unfair dismissal claims; reserved judgment sent 4 June 2019.
• Employment Appeal Tribunal – appeal heard 22 May 2020; judgment handed down 05 June 2020; appeal dismissed.