In 2005, Ms Bacon joined Advanced Fire Solutions LTD as a bookkeeper and within three years she had married the managing director and majority shareholder, Mr Bacon. In that same year, she became a director and shareholder.

Mr Ellis joined the company in 2012 and in five years he replaced Mr Bacon as the managing director. However, Mr Bacon stayed as the majority shareholder of the company.

In August 2017, Ms Bacon informed Mr Bacon that she wanted a separation but she desired to remain in the company after the divorce. This began an acrimonious divorce process. Allegations were made against Ms Bacon that alleged misuse of company IT, though the police found the claims to be baseless. Ms Bacon was then suspended from the company in January 2018 and, later that year in June, she was dismissed by a letter that was signed by Mr Ellis.

Ms Bacon brought a complaint of unfair dismissal and direct discrimination on the grounds of sex, marriage, and civil partnership to the tribunal. The ET held that Mr Ellis had treated Ms Bacon unfairly due to her divorce proceedings and he had sided with Mr Bacon.

This was due to Mr Ellis withholding Ms Bacon’s dividend payments, stopping her share loan repayments and diverting them to Mr Bacon, allowing Mr Bacon to use company funds to pay for his divorce proceedings, disregarding Ms Bacon’s grievance and filing a police report against her. The Tribunal Judge ruled that,

“Mr Ellis simply has no other explanation … other than he was siding with Mr Bacon, whom he no doubt felt was where his future lied within the company rather than that with Mrs Bacon.”

Mr Ellis successfully appealed to the Employment Appeal Tribunal. The EAT asked the question whether it was Ms Bacon’s marital status which was the cause of the treatment and not the fact that she was married to Mr Bacon.

To answer this question the Judge considered the objective test set out in Hawkins v Atex Group Limited [2012] ICR 1315. Under this authority, the EAT found that the ET failed to construct an appropriate comparator, i.e. someone who was in a close relationship with a majority shareholder but was not married to them. The Tribunal should have considered the fact that Ms Bacon was married to the company’s majority shareholder and whether she was treated unfavourably due to her marital status, rather than being married to a specific individual.

The  EAT did acknowledge that Ms Bacon’s treatment from Mr Ellis was bad and that they allowed the appeal with “a very heavy heart” but “the reason for the unfavourable treatment was that Mrs Bacon was married is not, in all the circumstances, sufficient in my view”.

Although this is an English Judgement, it would likely have persuasive value in NI, as marriage and civil partnership is one of the lesser spotted characteristics in NI Industrial Tribunal proceedings.

The EAT affirmed that the law in this area is for protection of people who have received less favourable treatment due to their marriage or civil partnership status, not because of who they were married to. It was only in 1975 with the Sex Discrimination Act that people first gained the protection from discrimination based on marriage or civil partnership. This was at a time when several industries in the United Kingdom still had a marriage bar for women entering the workplace. Furthermore, many of the cases of marriage and civil partnership discrimination are brought in conjunction with claims of sex discrimination, as this case was in the ET. It is, therefore, important to consider the matter as a whole from both angles.

For more information or advice please contact Jan Cunningham , David Mitchell or Niamh McMonagle in our Employment Team