Gould v St John’s Downshire Hill

Direct discrimination requires proof that the protected characteristic significantly influenced the decision-maker’s treatment. A characteristic may be an important background fact, or a factual “but for” cause, without being the subjective reason for the decision.

For marriage discrimination, the protected characteristic is the fact of being married or in a civil partnership. Treatment arising from conduct, relationship difficulties, or their consequences is not direct marriage discrimination unless marriage itself materially influenced the decision. A useful inquiry is whether an unmarried person in otherwise materially identical circumstances would have been treated more favourably.

Where a tribunal makes clear positive findings about the employer’s actual reasons, the burden of proof provisions add nothing. The appeal failed because the tribunal was entitled to find that dismissal was caused solely by an irretrievable loss of trust and confidence, not by marriage or marital breakdown.

The claimant was the former vicar of an evangelical church. After a prolonged breakdown in relationships with the trustees, leadership team, staff and members of the congregation, he was dismissed in August 2016.

He alleged that dismissal was direct discrimination because of marriage, contrary to the Equality Act 2010, and was unfair. He contended that the respondent had acted on a belief that a minister whose marriage had broken down could no longer serve. The Employment Tribunal dismissed both claims after finding that the trustees dismissed him because trust and confidence had irretrievably broken down. Marital difficulties formed part of the factual background, particularly through their public manifestation and the claimant’s conduct, but were not a reason for dismissal.

The claimant appealed against the rejection of the discrimination claim and, consequentially, the finding of fair dismissal.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant’s marriage, marital difficulties and possible separation or divorce played no part in the trustees’ decision to dismiss him. The sole reason was the irretrievable breakdown in working and pastoral relationships.

2. Under sections 8, 13 and 23 of the Equality Act 2010, direct marriage discrimination concerns treatment because a person is married or a civil partner. The statutory question remains the decision-maker’s subjective reason for acting. Marriage need only have a significant influence; it need not be the sole or principal reason.

3. The Tribunal did not apply a sole-reason test by distinguishing marriage “per se” from the effects and public manifestation of marital difficulties. It correctly distinguished the protected status from conduct connected with the relationship. Conduct may be the reason for treatment even though it arises in the context of marital breakdown.

4. Marriage difficulties or breakdown may found a successful claim where an unmarried person in materially identical circumstances would have been treated more favourably, or where a belief about marriage itself significantly influenced the decision. That was not what the Tribunal found on the evidence. The finding concerning the claimant’s conduct and the resulting loss of trust was not a finding that the trustees dismissed him because he was married.

5. The Tribunal had effectively proceeded on the basis that there was a prima facie case and then made positive findings that the respondent’s explanation was genuine. It was not required to structure its reasons in two discrete stages under section 136. Its factual findings established that there had been no discrimination whatsoever.

6. The unfair-dismissal appeal depended solely on establishing an error in the discrimination finding. It therefore also failed. Observations about the relationship between an unlawful secondary reason and unfair dismissal, and about hypothetical remedies, were academic and did not determine the appeal.

• Employment Appeal Tribunal: Appeal dismissed in UKEAT/2/20.
• Employment Tribunal, London Central: In a reserved judgment sent on 4 June 2019, dismissed the claims for direct marriage discrimination and unfair dismissal. It made alternative findings on compensation.
• Earlier Employment Appeal Tribunal proceedings: In Gould v Trustees of St John’s Downshire Hill (No 1), UKEAT/0115/17, the respondent’s strike-out argument was rejected. Permission to appeal was later refused by Underhill LJ.