18 January, 2023
In the case of Ellis v Bacon and Advanced Fire Solutions, a director, Ms Bacon was dismissed from the company during divorce proceedings with her husband, a majority shareholder at the same company, Mr Bacon.
The case focused on the following question: "to succeed in a claim for marital status discrimination, is it essential to show that the fact that someone was married, rather than simply in a close relationship, was part of the ground for the unfavourable treatment?"
Ms Bacon had been employed by Advanced Fire Solutions since 2005 and became a director and shareholder in 2008 and married the managing director, Mr Bacon in the same year.
Mr Ellis started working at Advanced Fire Solutions Ltd in 2012 and then became managing director in 2017, replacing Mr Bacon, although he continued to remain the majority shareholder.
In August 2017, Ms Bacon informed Mr Bacon that she wanted to separate and bitter divorce proceedings followed. During the acrimonious proceedings, Mr Ellis dismissed Ms Bacon on 29 June 2018 due to false allegations that she had misused company IT equipment. He also removed her directorship, failed to pay her dividends, and reported her to the police. Ms Bacon raised a grievance about her treatment, but this was left unresolved.
Ms Bacon brought claims of unfair dismissal and direct discrimination on the grounds of sex, marriage, and civil partnership.
The Employment Tribunal found that Mr Ellis sided with Mr Bacon in relation to the marriage breakdown and dismissed Ms Bacon on spurious grounds. The Tribunal held that Ms Bacon was dismissed after her divorce from another employee and had been a victim of discrimination on the grounds of her marriage to Mr Bacon.
Mr Ellis appealed the decision. The Employment Appeal Tribunal overturned the decision arguing that the Tribunal failed to construct the proper comparator, focusing on the fact of the Claimant being married, rather than looking at an appropriate hypothetical comparator, here someone in a close relationship with the majority shareholder, but who was not married.
The question was not whether the Claimant was badly treated because she was married to a particular person, it was in fact whether an unmarried woman whose circumstances were otherwise the same as the Claimant's, including being in a close relationship with the majority shareholder, would have been treated differently. Therefore whilst the Employment Appeal Tribunal noted that Ms Bacon had been treated badly by Mr Ellis, the appeal was allowed.
Marriage or civil partnership is one of the lesser-known protected characteristics under the Equality Act 2010 and one that is often overlooked. This case does demonstrate how limited the protection is for this form of discrimination and highlights its' purpose to protect those who are treated less favourably because they are married, not because of who they are married to. However, more often than not discrimination cases based on the grounds of marital status are also brought alongside claims for sex discrimination, so it is important to also consider both angles.
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