Last February, we reported on Dunn v Institute of Cemetery and Crematorium Management, which suggested that it could be unlawful to discriminate because a person is married to a particular person, and not simply on the ground that he or she is married. Hawkins v (1) Atex Group Ltd (2) Age Korsvold (3) Malo de Molina (4) Reardon looks at this issue and makes the point that it is crucial that the relationship is one of marriage (or civil partnership), and not just any close personal relationship. The case arose when a husband, wife, and their daughter were all dismissed on the ground that the husband had disobeyed a company instruction not to employ family members. His wife did not have enough service to make a claim of unfair dismissal, and so brought a claim alleging that the dismissal was discrimination on the ground of marital service. The claim was struck out as having no reasonable prospect of success and the Employment Appeal Tribunal upheld this decision.
Although the EAT took a more restrictive view of the provisions relating to marital discrimination than that taken in Dunn, the decision fits better with the wording of the statute which covers discrimination on the ground of being married or in a civil partnership, and does not cover relationships “akin to” marriage or civil partnership. The particular provision derives from one in the original Sex Discrimination Act, which was probably directed at the archaic practice of routinely dismissing women on marriage, with the concept of civil partnership being grafted on when that status was first introduced. The provision does not, therefore, address any potential unfairness of treating someone less favourably because of other forms of close relationship with another person – for example a woman who is dismissed because it is assumed, without evidence, that there is a risk of breach of confidentiality by her male live-in partner, might claim indirect sex discrimination.
However, in the case of a claim of indirect discrimination arising from a close personal relationship, the employer would have the opportunity to show that the dismissal, or other less favourable treatment is justified. As the the EAT pointed out, it is:
commonly accepted that it will sometimes be legitimate for employers to accord different treatment to employees who are parties to a close personal relationship, to avoid conflicts of interest or complaints about nepotism or favouritism."