Where an employer treats a married person less favourably because of whom they are married to, can this amount to unlawful discrimination?
Yes, was the answer given by the EAT in the recent case of Dunn v Institute of Cemetery and Crematorium Management.
Following a dispute over employment terms, Mrs Dunn resigned her position as a technical services manager. On making a claim for constructive unfair dismissal, she also claimed breach of section 3 of the Sex Discrimination Act 1975 – discrimination of married persons in employment field (now section 8 of the Equality Act 2010). She said that she was less favourably treated because she was married to Mr Dunn, who the employer was also in dispute with.
Originally, the EAT had held that the protection under section 3 of the SDA did not apply to a person who was discriminated against on the ground that she was married to a particular person. The EAT, however, held that this was the wrong approach.
After reviewing authorities the EAT concluded that section 3 of the SDA could be interpreted as protecting Mrs Dunn not only by reason of her status of being married, but also of being married to her husband. Although her employer did not discriminate against married people generally, Mrs Dunn was entitled to claim that her unfavourable treatment was marriage-specific and specific to her marriage.
In reaching its conclusion, the EAT also found that Mrs Dunn’s human rights under Arts 8,12 and 14 of the European Convention were engaged and that section 3 of the SDA should be construed accordingly.
This has always been a confusing area for employers as there may be good reasons for sacking a husband or wife, for example because of a conflict of interest. Until now, although it was always wise to tread carefully, it was not considered to be discrimination. However, this judgement has now firmly put this in the area of sex discrimination. But it is now in danger of contradicting the government’s statement that employers can keep husbands and wives in different parts of an organisation, applying a rule preventing family members or people in relationships from working together, as long as the rule is justified. If such a rule were applied to prevent a woman from working with her husband (because she is in a close relationship with her husband), then on one reading of the EAT’s decision the woman will have been subjected to direct marriage discrimination.
Watch this space, there is likely to be a lot of commentary on this and therefore further developments…..