To succeed in a claim for marital status discrimination, is it essential to show that the fact that someone was married rather than simply in a close relationship, was part of the ground for the unfavourable treatment?

Yes, held the Employment Appeal Tribunal (EAT) in the recent case of Ellis v Bacon.

The Claimant, Mrs Bacon, was a company director married to the company’s majority shareholder, Mr Bacon. In the course of acrimonious divorce proceedings, the Managing Director dismissed the Claimant and subjected her to various detriments at Mr Bacon’s behest. The tribunal upheld her marital status discrimination complaint.

The EAT overturned that decision. The EAT decided that the original tribunal had failed to construct the proper comparator, focusing on the fact of the Claimant being married, rather than looking at an appropriate hypothetical comparator. Here that would be someone in a close relationship with the majority shareholder but who was not married.

The EAT also noted a previous EAT authority (Hawkins) arising from similar circumstances but which had not been cited to the tribunal.

The relevant question is not whether the Claimant was badly treated because she was married to a particular person, ask oneself whether an unmarried woman whose circumstances were otherwise the same as the Claimant’s, including being in a close relationship with the majority shareholder, would have been treated differently.