To love, honour and lose your job over

13 Dec 2011

Although it is an element of employment law that rarely makes headlines, most employers will be aware that it is unlawful to discriminate against employees on the grounds of their marital status.

The purpose of the legislation was originally tied up with sex discrimination and was designed to prevent employers from refusing to employ married women, based on an assumption that they would soon go off and have babies.

The law was modernised in 2005 to ensure that people in a civil partnership had the same protection as married people and was codified once more in the Equality Act 2010, which makes it clear that "marriage" (including civil partnership) is a protected characteristic, with enforceable rights against discrimination.

In the case of Mrs A Dunn v The Institute of Cemetery and Crematorium Management, the Employment Appeal Tribunal (EAT) was asked to consider the scope of protection for married people.

In this case, Mrs Dunn did not argue that she had suffered discrimination because she was a married person, but that she had been discriminated against because she was married to Mr Dunn.  Mrs Dunn's former employer argued, perhaps understandably, that this was too specific to fall within the legal protection.

The EAT disagreed.  They concluded that "marital status" did include the specifics of the person to whom one is married.

In its judgment, the EAT also noted that "marital status" only protects those who are currently married, which His Honour Judge McMullen QC neatly summarised as "a person who is not married is an ‘unperson'".  Bridget Jones take note!

This case raises important considerations in situations where an employee's spouse works for a rival company.  Employers must always be careful to avoid treating people unfairly if they have any protected characteristic.