An interesting case regarding discrimination law made its way into the spotlight last week. The Employment Appeal Tribunal handed down its judgment in Hawkins v Atex Group, a case of marital discrimination under the Equality Act 2010. The primary issue in this case was causation and
- The law relating to marital discrimination under the Equality Act 2010
- The facts in the particular case
- Conclusion of the Employment Appeal Tribunal
- Our thoughts
The law relating to marital discrimination under the Equality Act 2010
Under s.8 of the Equality Act 2010 discrimination in the workplace (as we’re looking at this from an employment law context) because someone is married or in a civil partnership is prohibited. In a “direct discrimination” context, workers and employees can’t be subjected to less favourable treatment because they’re married or in a civil partnership. Examples of less favourable treatment include dismissal, failure to promote, demotion, unequal contract terms etc. In a case of direct marital or civil partnership discrimination the treatment afforded to the Claimant (the person discriminated against) must be compared with another actual or hypothetical worker or employee in a similar position (i.e. same job or duties etc.). The important point to note at this stage is that causation is often a critical factor in potential or actual discrimination cases. The treatment afforded to the Claimant must have been because they’re married or in a civil partnership and not for any other reason (i.e. a personality clash). The reason for discrimination in any particular situation can often be difficult to entangle – such issues are often highly emotionally charged. The Claimant may have a reasonable belief that they are being discriminated against because they’re married but this reasonable belief can be mistaken. The issue of causation was the critical one in Hawkins v Atex Group, which we’ll now have a brief look at.
The facts in Hawkins v Atex Group
Mrs Hawkins started working at the Atex Group in early 2010. She was dismissed before she had worked for Atex Group for a year as her employment was in breach of an instruction to her husband, who was Chief Executive at Atex Group at the time. Mrs Hawkins was therefore unable to claim unfair dismissal under s.94(1) of the Employment Rights Act 1996. However, she submitted a claim to the Employment Tribunal of direct sex discrimination on the grounds that she was married under s.3 of the Sex Discrimination Act 1975. This was presumably both because she felt that her treatment was discriminatory and because this gave her a pathway to claim automatic unfair dismissal under the Employment Rights Act (which has no qualifying period).
The Employment Tribunal struck Mrs Hawkins’ claim out on the basis that the treatment afforded to her was not on the grounds of her marriage but because of who she was married to – an important distinction. It was reasoned that Mrs Hawkins had no reasonable prospects of succeeding in her claim in the Employment Tribunal.
Mrs Hawkins appealed this decision and the case went before the Employment Appeal Tribunal.
The conclusion of the Employment Appeal Tribunal
The Employment Appeal Tribunal dismissed Mrs Hawkins’ claim. It held that:
- The less favourable treatment (the discrimination) must be on the basis of the marriage itself rather than because of whom the Claimant is married to; and
- Mr Justice Underhill believed that the Claimant did not have a reasonable prospect of success in proving on the balance of probabilities that the reason for her treatment was marriage-related
This case is interesting for two reasons:
- Causation in marriage discrimination cases
- Conflicting case law
Causation in marriage discrimination cases
Although it must be stated that this case was submitted prior to the Equality Act 2010 coming into force, this case offers an interesting analysis of causation in discrimination cases. Under the Equality Act 2010 the discrimination complained of must be because of a person’s protected characteristic (i.e. age, sex, the fact that they’re married etc.) rather than any other reason.
Conflicting case law
This case directly goes against what the Employment Appeal Tribunal decided in Dunn v Institute of Cemetery and Crematorium Management (which we’ll look at in a future post). This was a case with similar facts where it was found that the Claimant had been treated less favourably than other employees because she was married to another employee (who was also in a dispute with her employer). The Employment Appeal suggested that the judgment of Dunn was incorrect, a suggestion with which we agree.