Marriage and discrimination at work

The Employment Appeals Tribunal has held that it is possible to claim discrimination on the basis of your marriage. Women who are treated differently or dismissed because they are married to someone in the office can rely on case law to claim discrimination. This is not being discriminated against because you are married; it is being discriminated against because you are married to a particular person.

The Facts

Dunn v The Institute of Cemetery and Crematorium Management is a case brought by a woman who was dismissed, and during the dismissal process was treated differently than others because her husband works at the business.

She began working there in December 2007, having been a volunteer there before, and was responsible for opening an office in the north of England. In February 2008 changes to her sick pay entitlement were discussed with her.

She was upset by things that arose in the consultation about her responsibilities and performance. She made a grievance, which was rejected. She went off sick in September 2008.

The employer, having received a letter from her solicitors alleging discrimination, cancelled the project to open an office in the north. They wrote to her confirming this and started a consultation.

She resigned in February 2009. She alleged that her sick pay was not paid in full, and that her employer had been delaying the consultation.

The case alleged

She contended she was singled out for a lower rate of pay than anyone else in her circumstances, and that the treatment she had received was in breach of the Sex Discrimination Act 1975 because she was treated less favourably because she was married to Mr Dunn.  She was treated as an adjunct to him.

The Employment Tribunal found that Mrs Dunn was not able to call witnesses to the grievance meeting, and that Mr Dunn”was treated differently in this regard.”

There were documents showing the Chief Executive’s attitude towards Mr and Mrs Dunn, saying things such as:

I believe that the intention is to take control of all members of staff whereby he and his wife (Angela Dunn) can limit their workloads.

I noted the deteriorating attitude of Ron and Angela Dunn.

The relevant law

Ganhao v ICM Support Services Ltd

The Claimant’s husband resigned, and the Claimant’s job was given to somebody else.  She succeeded in a claim of marital discrimination because the Respondent treated her as her husband’s appendage.

Watkins v Jubilee Club & Institute

There was a stock deficiency in the bar of a club. The steward was dismissed, as was his wife – the barmaid. She had nothing to do with the stock and succeeded in her claim because she was dismissed only because she was married.

Graham

This is the most relevant case.  A woman was given a job in the police division commanded by her husband. She was then removed from the post by the Chief Constable because:

As the spouse of a serving officer [she] could not work in the same division because she would not be a competent and compellable witness against her spouse in any criminal proceedings.

She won a case of marital discrimination.  The interpretation of this case by the Employment Appeals Tribunal is important:

To use the language of the EAT, that reason is “marriage-specific”. More so, it is specific to that marriage. Had her husband not been the commander of the division, the Respondent’s decision to block her assignment to that division would not have been made.  In our judgment Graham is authority for the proposition that a married person is protected by section 3 by reason of her status of being married to her husband.

The Decision

Although there was a High Court case that held the opposite to Graham the Employment Appeals Tribunal (EAT) said it was bound not by that, but was bound by Graham because that was an EAT decision.

That meant that they came to this decision:

a person who is married or who is in a civil partnership is protected against discrimination on the ground of that relationship and on the ground of their relationship to the other partner.

This confirms that there is a specific form of discrimination against someone because of who they are married to, not just because of the fact that they are married. It was also decided in this case that Article 8 – the right to private and family life – was relevant.

This will be a useful decision for people who work in the same office as their spouse. Drawing a distinction between martial discrimination and discrimination on the basis of a spouse will allow more claims to be brought by women (and, conceivably, men) who are treated differently, and detrimentally, because they happen to work in the same place as their spouse.