The Employment Appeals Tribunal (“EAT”) has decided, in Dunn v Insititute of Cemetry and Crematorium Management, that an employer acts unlawfully if it treats an employee less favourably, not because she is married, but because she is married to a particular man. Although the employer did not discriminate against married people generally, Mrs Dunn could rely on less favourable treatment that was specific to her marriage.
Mrs Dunn was employed to establish a northern office for the employer. When a grievance about changes to her contract was rejected she went off sick alleging, among other things, sex discrimination and victimisation. The employer then decided not to open the northern office and wrote to Mrs Dunn stating that it proposed to delete her post. She then resigned, claiming that she had been paid less sick pay than anyone else in her circumstances, and that, as the treatment was on the ground of her marriage, it breached the Sex Discrimination Act (“the SDA”).
A tribunal held that the discrimination was not on the ground of Mrs Dunn’s status as a married person but because of the particular person she was married to – there was evidence of antipathy between the employer’s Chief Executive and Mrs Dunn’s husband. Her claim therefore failed and she appealed.
The EAT allowed the appeal. It noted that the Civil Partnership Amendment Act 2004 had altered the SDA so that protection from discrimination was no longer on the basis of ‘marital status’, but applied where the reason for treatment was that the person was married. The EAT followed its decision in Chief Constable of the Bedfordshire Constabulary v Graham, where it held that preventing a woman from working in the police division of which her husband was commander was marital discrimination. The EAT considered that this was a marriage-specific reason as the wife’s appointment would not have been blocked if the husband had not been head of that division. Thus, the EAT held that less favourable, marriage-specific, treatment is unlawful – a person who is married or in a civil partnership is protected from discrimination on the ground of that relationship.
Even though the SDA has now been superseded by the Equality Act, this case will remain relevant as the relevant section of the former is included in the latter.
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