Discrimination on the grounds of marital status or civil partnership is a claim that is infrequently heard in employment tribunals - so much so that it doesn’t get a mention in the tribunal annual statistics reporting on claims and awards each year. Its original purpose, when introduced under the Sex Discrimination Act 1975, was to protect women affected by a "marriage bar" - a requirement to resign from employment on getting married. In assessing whether direct discrimination has occurred, the tribunal needs to assess whether the marriage is the reason for the treatment or just a background fact.
In the case of Gould v St John's Downshire Hill, Rev Gould was a church minister who alleged he had been dismissed following the breakdown of his marriage. He had, at times, shared personal details about his marriage and his wife's difficulties with his congregation, which concerned his employer, as did issues relating to poor governance, property transactions, conflicts of interest and mismanagement. These matters had led to a reduction in congregation numbers and financial contributions, along with the resignation of the church leadership.
The employment tribunal struck out the claim on the basis it alleged dismissal because of marital difficulties rather than the status of marriage. However, the EAT disagreed holding that the dismissal was alleged to be because of the difficulties and the fact that the claimant was married. The appropriate comparator in this case would be someone who was in a close relationship, but not a marriage, who was having difficulties, and the matter was remitted back to the employment tribunal.
The employment tribunal then held that the reason for the dismissal was not the marital status but the fact there was a loss of trust and confidence in Rev Gould as a result of his behaviour in the period prior to the dismissal, including in relation to the marriage breakdown. The marital difficulties were a background fact but not the reason for his dismissal. His discrimination claim therefore failed. The matter was once again appealed to the EAT.
The EAT held that although the claim might have succeeded if the decision to dismiss had been significantly influenced by a belief that a minister cannot continue to serve if their marriage breaks down, or if they would not have been dismissed in the same circumstances had they not been married, the employment tribunal had found as a fact that this was not what happened. Although some of the conduct for which Rev Gould was dismissed arose in the context of his marital problems, that did not mean those problems were the reason for his dismissal.
The EAT judgement in this case provides useful guidance on when a direct marriage discrimination claim can succeed. Although such claims are uncommon there is no statutory defence to a direct discrimination claim so it is important that employers do not forget about this issue when making decisions involving marital status or civil partnership.