Discrimination on Grounds of Marriage to a Particular Person Unlawful

In Dunn v Institute of Cemetery and Crematorium Management the EAT has held that the protection from discrimination of married persons under S.3 of the Sex Discrimination Act includes protection from less favourable treatment for being married to a particular person. Thus, in the instant case, although the employer did not discriminate against married people generally, the claimant could rely on less favourable treatment that was specific to her marriage.

D was employed to establish a northern office for the ICCM. When a grievance about changes to her contract was rejected she went off sick alleging, among other things, sex discrimination and victimisation. The ICCM then decided not to open the northern office and wrote to D stating that it proposed to delete her post. D 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 SDA. A tribunal held that the discrimination was not on the ground of D’s status as a married person but because of the particular person she was married to – there was evidence of antipathy between the Chief Executive of ICCM and D’s husband. D appealed.

The EAT allowed the appeal. It noted that the Civil Partnership Amendment Act 2004 had altered S.3 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. The case was therefore remitted to the tribunal to determine whether D had been discriminated against on that basis.

Note that protection from discrimination on the basis that a person is married (or a civil partner) has now been recast in Ss.8 and 13 of the Equality Act 2010.

Report Provided by ELA