Employment Appeal Tribunal Allows Appeal In Marital Status Discrimination Case

In the case of Ellis v Bacon and Advanced Fire Solutions Ltd, an appeal was allowed by the Employment Appeal Tribunal (EAT) against the original Employment Tribunal’s ruling that an employee was discriminated against due to her marital status.

Mr Graham Ellis v 1) Ms K Bacon 2) Advanced Fire Solutions Ltd (In Administration) [2022] EAT 188

Background

Ms Bacon joined Advanced Fire Solutions Ltd as a bookkeeper in 2005, becoming a director and shareholder three years later. In 2008, she married the managing director and majority shareholder of the organisation, Mr Bacon.

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 of the business.

In August 2017, Ms Bacon told Mr Bacon that she wished to separate, with bitter divorce proceedings then ensuing.

False allegations were made against Ms Bacon that she had misused company IT equipment and a complaint was made to the Police which proved to be baseless. In January 2018, she was suspended with her directorship being removed and dividends unpaid. She was then dismissed by a letter signed by Mr Ellis in June 2018.

Ms Bacon raised a formal grievance regarding the way she had been treated but this was never resolved.

Ms Bacon brought an Employment Tribunal claim for unfair dismissal and direct discrimination on grounds of sex and marital status against Mr Ellis. In her claim, Ms Bacon argued that Mr Ellis had sided with Mr Bacon in respect of their divorce leading to her directorship being removed, dividends not being paid, her suspension and then dismissal.

The Tribunal unanimously found in favour of Ms Bacon, that Mr Ellis had distanced himself from her because of the divorce proceedings and that he was complicit with Mr Bacon. The Tribunal noted that Mr Bacon was pulling all the strings with Mr Ellis believing everything he was told about Ms Bacon. In the Tribunal’s view, these actions amounted to less favourable treatment against Ms Bacon by Mr Ellis due to her marital status as wife to Mr Bacon. Mr Ellis appealed.

EAT decision

The EAT focussed specifically on the question of whether Mr Ellis had treated Ms Bacon less favourably because she was married, not whether she had been poorly treated due to her being married to a particular person. Essentially, comparing her to an unmarried person whose circumstances were the same as Ms Bacon’s, including her relationship with her ex-husband.

The appeal was allowed on the basis the EAT found that the Tribunal had failed to address the fact that Ms Bacon was married to the organisation’s majority shareholder, rather than the closeness of their relationship, resulting in the less favourable treatment she received. The Tribunal’s finding that the reason for the unfavourable treatment was that Ms Bacon was married wasn’t sufficient.

When allowing the appeal, the EAT did so “with a very heavy heart”, noting that Ms Bacon had been treated very badly by Mr Ellis.

Comment

This case illustrates how limited the protection is for discrimination on grounds of marital status; it acts to protect those who are less favourably treated because they are married full stop – not because of who they are married to.

Often cases of discrimination on grounds of marital status are linked to claims for sex discrimination and so it is important that both are dealt with to ensure a potentially valid claim or defence of a claim.