The Equality Act 2010, like its predecessors, protects those with the protected characteristic of marriage from discrimination on the ground of that characteristic. Does this concept, originally introduced to deal with the outmoded practice of dismissing women as soon as they married, which still continued into the 1960s, have any current relevance in the 21st century?
Dunn v The Institute of Cemetery and Crematorium Management shows that it still has a place in modern employment law. In this case, the Employment Appeal Tribunal (EAT) looked at a situation where the discrimination did not take place simply because the claimant was married, but because she was married to a particular individual. Mrs Dunn was unfairly constructively dismissed, and alleged that the reason for this was that she was married specifically to her husband: Mr Dunn was also employed by the same employer, and in dispute with it over his other business interests. There was no evidence that the unfavourable treatment was because of her marital status alone, so the claim could only succeed on this ground if discrimination on the grounds of marital status extends to cover the situation of being married to a particular person.
Considering the distinction between marital and family status (both are referred to in the relevant legislation) Judge McMullen QC stated:
Marital status is much narrower. It is not immediately clear why Parliament needed to protect from discrimination the body of married persons who make up, it must be thought, a majority of the adult population of the UK. Within the memory of the members of this Tribunal, such protection was needed, for it was not uncommon for employers to dismiss women workers when they got married (for example, airline stewardesses of the national carrier, civil servants, diplomats and bank employees). We are aware of no example of a man suffering detriment (in the legal sense) for being married. One wonders why the protection was extended to men except simply as a matter of formal equality; and not extended to women who were not married to the fathers of children by whom they were pregnant, as a reader of any Dickens novel or a viewer of Downton Abbey (a popular ITV1 costume drama of the 1900’s) would understand. So, does the law in the UK cover discrimination against a person because of some characteristic of the man she is married to, or of some specific connection between the act complained of and him?
Having considered a number of relevant cases he continued:
At the highest, therefore, there is a Judgment of the High Court in favour of the Respondent, and of the EAT in favour of the Claimant, in our case. They are separated by 23 years, a long time in the field of discrimination law, and a further 10 years have passed. As a court of co-ordinate jurisdiction we are bound by neither, but we would customarily follow a Judgment of the EAT made after full consideration of the issues unless we are sure it is wrong…We are content…to hold that a person who is married or who is in a civil partnership is protected against discrimination on the ground of that relationship and on the ground of their relationship to the other partner. Any less favourable treatment which is marriage-specific is unlawful. We do not find it necessary to decide whether that extends to persons in any other kind of relationship than current marriage or civil partnership. It is sufficient to note that throughout family, property, immigration and criminal law, a married person is treated differently. In almost every case this is not an abstract support for all married women but is support for and derives from the fixed legal relationship she has entered into (and cannot be forced into). It is unique.
So, regardless of the fact that her employers had no issue with the fact that she was married as such, Mrs Dunn was still protected from, and had suffered, discrimination specifically on the ground of being married to Mr Dunn.