Graham Ellis v K Bacon & Anor

For direct discrimination based on marriage or civil partnership, the protected characteristic is the fact of being married or a civil partner. It is insufficient that the claimant was treated unfavourably because of a close relationship with a particular person.

The tribunal must identify whether marital status caused the treatment. It should ordinarily compare the claimant with a person in an otherwise equivalent close relationship who is not married. A bare finding that marriage was the reason for treatment will not suffice where the reasoning instead conflates marriage with the identity of the claimant’s spouse or actions taken at that spouse’s request.

The claimant was employed by the second respondent and was married to its majority shareholder. Following the breakdown of that marriage, she was suspended and dismissed. The Employment Tribunal found that the appellant, the company’s managing director, had acted with the husband in a series of measures against her and had directly discriminated against her because of marriage.

The appellant appealed. The central issue was whether the tribunal had determined that the treatment was because the claimant was married, rather than because she was married to, and in dispute with, the particular shareholder.

1. Appeal allowed. The Employment Tribunal erred in law in upholding the claim for direct discrimination because of marriage.

2. Under sections 8 and 13 of the Equality Act 2010, read with section 13(4), the relevant protected characteristic is the claimant’s status as a married person. The statutory question ends with whether the treatment was because the claimant was married. It does not extend to treatment because she was married to a particular person.

3. Applying Hawkins v Atex Group Limited, [2012] ICR 1315, the appropriate hypothetical comparator would ordinarily be an unmarried person who was otherwise in the same position, including being in a close relationship with the claimant’s husband. The tribunal had to ask whether that person would have been treated differently.

4. The Tribunal’s findings showed that it had treated marital status, the husband’s identity, the acrimonious separation, and the appellant’s compliance with the husband’s wishes as interchangeable. Its repeated bare assertions that marriage caused the treatment did not show that it had addressed the decisive statutory issue or constructed the required comparator.

5. The EAT recognised the restricted appellate role described in DPP Law Ltd v Greenberg, [2021] EWCA Civ 672. Nevertheless, the failure to direct itself to the true issue was a material error of law. The appeal was therefore allowed.

• Employment Appeal Tribunal: allowed the appellant’s appeal from the Employment Tribunal’s judgment sent on 26 May 2020, which had upheld the claimant’s personal claim against him for direct discrimination because of marriage.