All is fair in love and work so say the Employment Appeal Tribunal (EAT) in the Dunn v Institute of Cemetery and Crematorium Management UKEAT/0531/10/DA.
Mrs Dunn, married to Mr Dunn, was employed by the Respondent in December 2007 as a technical services manager for the north of Britain. She resigned from her post on 25th February 2009 following her employer’s failure to pay the appropriate rate of sick pay. At the time of her resignation, the Respondent had commenced redundancy consultations in respect of her post. Mrs Dunn brought a claim in the Employment Tribunal (ET) against the Respondent alleging, amongst other things, victimisation and sex discrimination under s.3 of the Sex Discrimination Act 1973. In the course of proceedings, Mrs Dunn relied on documentary evidence showing that the Respondent’s chief executive had made various negative allegations concerning her husband during meetings where the viability of her post was discussed.
Mrs Dunn’s sex discrimination claim was posited on the basis that she had been treated less favourably by the Respondent not because she was married, but because of the man she was married to; namely, Mr Dunn. The ET dismissed Mrs Dunn’s direct discrimination claim. The ET reasoned that Mrs Dunn had not been treated less favourably because of her status as a married woman, but due to her relationship with her husband. Consequently, as a matter of construction, this fell outwith the scope of protection afforded by the Act.
On appeal the question posed was: does an employer act unlawfully if he treats an employee less favourably, not because she is married, but because she is married to a particular man? The EAT emphatically held 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, Chief Constable of the Bedfordshire Constabulary v Graham  IRLR 239 followed. The EAT further considered that there had been a breach of Mrs Dunn’s Convention Rights under articles 12, 8 and 14 ECHR.
Elizabeth Dwomoh / 22nd Apr 2012
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