Woman loses discrimination claim based on her marital status

The Employment Appeal Tribunal has overturned a decision that a woman was discriminated against because of her marital status.

Jennifer Cafferky Solicitor in our employment team, reports on this recent case.

The case involved Mr Graham Ellis and Ms K Bacon, who had both worked for Advanced Fire Solutions Ltd (AFS).

Bacon joined AFS Ltd as a bookkeeper in 2005. She later married Mr J Bacon, who was the company’s managing director and majority shareholder. She herself became a director and shareholder in 2008.

Mr Bacon was replaced as MD in August 2017 but continued to be the majority shareholder.

That same month, she informed him that she wished to separate, which led to acrimonious divorce proceedings. False allegations were raised that she had misused company computer equipment and a wholly baseless complaint was made to the police.

Her directorship was removed, and her dividends were unpaid. She was ultimately dismissed by a letter signed by the replacement MD, Mr Ellis.

She brought a claim against him for direct discrimination on the ground of her marital status.

The Employment Tribunal upheld her claim. It found that Ellis had sided with her husband in relation to the marital dispute and was compliant with him in removing Bacon’s directorship, not paying her dividends, reporting her to the police, and suspending and dismissing her on spurious grounds.

In its view, these actions involved less favourable treatment by Ellis because of her marital status.

The Employment Appeal Tribunal overturned that decision.

It held that the key issue was whether an unmarried woman whose circumstances were otherwise the same as hers, including being in a close relationship with the majority shareholder, would have been treated differently.

The tribunal had failed properly to address this issue. The bare assertion at various points that the reason for the unfavourable treatment was that Bacon was married was not, in all the circumstances, sufficient, particularly when the fact of being married was muddled up with numerous other considerations, such as Ellis’ role in the company and her former husband ‘pulling his strings’.

The EAT, therefore, allowed the appeal. However, it said it did so ‘with a very heavy heart’ because Bacon had been very badly treated by Ellis, among others.

For more information about the issues raised in this article or any aspect of employment law please contact Jennifer on 01228 516666 or click here to send her an email.