Many employers have married couples working for them. Most of the time this does not present any problems, but sometimes they and their staff can get concerned about perceived conflicts of interest and nepotism. Leaving aside any issues of statutory fairness for now, if the employer decided to dismiss one of the employees to prevent this, would this constitute unlawful marital discrimination?
Even though the law against such discrimination was originally introduced back in the 1970s when it was not uncommon for employers to dismiss women when they got married, no doubt to avoid the pitter patter of tiny feet anywhere near the workplace, there have been very few cases in this area. Recently there have been two claims that have got as far as the EAT, both brought by women who claim they were treated less favourably by their employers because they were married. Disappointingly they both say different things!
On the one hand we have a decision which says that it is unlawful for an employer to treat a woman less favourably because she is married to a particular man. On the other we also have a fractionally more recent decision of the same court which says totally the opposite, i.e. that it will only be unlawful marriage discrimination if the reason for the less favourable treatment is because the employee is married, as opposed to married to a particular man.
On balance the second decision should be preferred, not least because it accords with the orthodox interpretation of the legislation, namely that employers should be prevented from treating employees (usually women) less favourably simply because they are married, but that they can dismiss a married person to avoid the reality or perception of a conflict of interest if they would also dismiss someone in a similarly close but non-married/civil partnership relationship. Then it is not the married status which is the trigger but the exposure created by the closeness of the relationship. In the meantime, however, employers should be cautious about contemplating any form of action against a married employee (or one in a civil partnership for that matter – as the same principles apply) that is linked in any way to the fact they are married or in a civil partnership. It will be sensible to create the best possible record of the objective problems which the relationship will/may cause to the business.
