Marriage Discrimination: Back in the spotlight

27 January 2012

In 1975, Parliament introduced the Sex Discrimination Act, which afforded protection from discrimination to married persons. The introduction of such protection came about as a result of the practice, which was not uncommon at the time, of employers dismissing female workers when they married. It is thought that the protection was also extended to men as a matter of formal equality more than anything else. In the 30 years or so since the introduction of the Act, employers' views regarding working married women have changed significantly. Marriage discrimination is now only rarely cited as a ground of complaint by claimants and the protection afforded by the Act is less often relied upon.

However, very recently the Employment Appeals Tribunal (EAT) has clarified that treating an employee less favourably because of who he/she is married to, as opposed to simply because he/she is married per se, can constitute marriage discrimination. In doing so the EAT has highlighted that the scope of the protection may be broader than is often thought.

In Dunn v Institute of Cemetery and Crematorium Management, Mrs Dunn was employed as a technical services manager. She was in dispute with the Institute over her sick pay entitlement. Her husband also worked for the Institute and had a strained relationship with its chief executive. Mrs Dunn brought grievances in relation to her sick pay entitlement, and later resigned. She claimed constructive dismissal and direct marriage discrimination. She maintained that the Institute discriminated against her, not because she was married, but rather because she was married to Mr Dunn in particular.

At first instance, the Employment Tribunal rejected her marriage discrimination claim. On the facts, it found that during the grievance process the Institute’s chief executive had produced evidence which criticised Mr Dunn’s activities, which evidence was not relevant to Mrs Dunn’s grievance. However it maintained that there was no marriage discrimination as the treatment of which Mrs Dunn complained, occurred not because she was married, but because she was married to Mr Dunn and as such, was outside the scope of the protection.

On appeal, the EAT disagreed and found that treating an employee less favourably because of the identity of his/her spouse could constitute marriage discrimination. It acknowledged that there was conflicting case law on the matter but followed Chief Constable of the Bedfordshire Constabulary v Graham. In that case a female inspector’s appointment to a position in the division commanded by her husband, a chief superintendent, was rescinded because the Constabulary deemed that she would not be a competent and compellable witness against her husband in any criminal proceedings. It was held that the treatment of the inspector was less favourable on account of a “marriage-specific” reason i.e. a reason specific to that marriage, and as a consequence she was successful in her direct marriage discrimination claim. The EAT in Dunn held that it was not bound by this judgment, but would customarily follow it unless the tribunal had clearly erred in its decision.

The Sex Discrimination Act 1975 has now been repealed and since 1 October 2010 the provisions of the Equality Act 2010 have applied. However the marriage discrimination provisions of the Equality Act have largely reflected the earlier legislation. As a result, employers should ensure that they do not treat an employee differently on account of the identity of his/her spouse. This is most likely to be relevant 1) when husbands and wives and civil partners work in the same organisation and disputes arise in relation to one party, and 2) when employers have policies relating to retaining husbands and wives and civil partners in different parts of an organisation, preventing them working together, or assigning them to different tasks. In such circumstances, the risk of potential marriage discrimination claims arises and legal advice should be sought.

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