In a recent case, Ellis v Bacon and another  EAT 188, the EAT highlighted the correct interpretation of the test for direct marriage discrimination, as well as identifying the most appropriate comparator in such case.
This matter initially involved a married couple, Mr and Ms Bacon. Mr Bacon was the majority shareholder and managing director of Advanced Fire Solutions Ltd (“the Company”). Ms Bacon was formerly a bookkeeper of the Company, however, had ascended to directorship, and also had a shareholding in the Company.
Mr Ellis was employed by the Company from 2012, becoming a director with 10% shareholding a year later. He would also become managing director in August 2017.
Around the same time, Ms Bacon informed Mr Bacon of her desire to separate, however, wished to keep her role at the Company following their divorce.
During this period, Ms Bacon also took a break from work, and staff were informed that she was sick and would return upon her recovery. However, during this period, Mr Bacon raised false allegations regarding Ms Bacon’s misuse of the Company’s IT. This led to a suspension in January 2018, ultimately leading to a dismissal in June 2018, through a dismissal letter signed by Mr Ellis. She was dismissed on the basis of gross misconduct and her appeal was also dismissed in July of the same year.
Separately, dividends had also been declared by the Company which were not paid to Ms Bacon, and share loan repayments had also been diverted away from Ms Bacon.
This led to tribunal proceedings issued by Ms Bacon, of which included a claim for discrimination.
The statutory definition of direct discrimination is:
A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
As indicated above, there is a requirement for both a protected characteristic and less favourable treatment, as a result of that protected characteristic. This is proven by comparison to the treatment an actual or hypothetical comparator, who does not possess the protected characteristic, would receive in the same circumstance.
In the present matter, Ms Bacon argued her protected characteristic was that of her marriage/marital status as wife to Mr Bacon.
The tribunal, at first instance, found that Mr Ellis’ actions involved less favourable treatment of Ms Bacon due to her marital status, particularly due to the inference arising from the non-payment of dividends and share loan repayments, which had subsequently gone to Mr Bacon.
The tribunal’s decision was appealed.
In the appeal decision, the EAT held that the statutory test above had been incorrectly applied by the tribunal. As marriage (as a whole) is a protected characteristic, Ms Bacon could only be less favourably treated due to her being married, regardless of who that were to. The EAT applied Hawkins v Atex Group Ltd and others  in reaching its decision.
In addition, the tribunal had not correctly followed Hawkins in finding a comparator. The appropriate comparator in this circumstance would “usually be someone in a relationship akin to marriage but who was not actually married” to (in this matter) Mr Bacon.
Therefore, despite noting the unfortunate circumstances Ms Bacon had been subject to by her former employer, the EAT allowed the appeal by Mr Ellis. This decision, however, does revert back to the correct application of the statutory test for direct marriage discrimination, as had been established in Hawkins.