Article 5 of the Sex Discrimination (NI) Order 1976 as amended renders it unlawful, within the employment field, for an individual to be discriminated against on grounds of their marital or civil partner status.

Specifically it would be unlawful to directly discriminate against a married person or a civil partner by treating them less favourably than an unmarried person or a person who is not a civil partner and it will also be unlawful to indirectly discriminate against any such individual by applying a provision, criterion or practice to them which puts or would put them at a particular disadvantage in comparison to persons who are not married or civil partners and which cannot be shown to be a proportionate means of achieving a legitimate aim.

The equivalent provisions in the legislation applying elsewhere in the UK was considered in the recent case of Ellis v Bacon where the EAT overturned an earlier Employment Tribunal finding that a female employee had been discriminated against on grounds of marital status.

The factual context of the claim is one which occurs quite regularly in Northern Ireland where many SMEs are constructed on a family basis often with siblings and/or husband and wife teams involved in the ownership/management of same.

In this instance Mrs Bacon had taken up a role with the Respondent Company as a Bookkeeper in 2005.  Subsequently, she married the Respondent’s Managing Director and majority Shareholder.

Later still she became a Director and Shareholder herself.

In 2017 divorce proceedings were commenced between herself and the now former Managing Director and the Employment Tribunal and indeed the EAT both found that in the course of acrimonious divorce proceedings Mrs Bacon was treated very badly with unfounded accusations being levelled against her and inappropriate removal of her Directorship status.

Mrs Bacon brought a claim against the Company contending that she had been discriminated against on ground of her marital status and at first instance the Employment Tribunal upheld the claim.  The Employment Tribunal concluded that the Company had effectively sided with the former Managing Director in relation to the marital dispute and had acted inappropriately in suspending and ultimately dismissing Mrs Bacon on spurious grounds.

The Company then appealed to the Employment Appeals Tribunal.

The EAT concluded that the Employment Tribunal had misdirected itself.  It had failed to consider whether the fact of Mrs Bacon and the former Managing Director being married was part of the ground for her unlawful treatment.

In order to properly evaluate this the Employment Tribunal should have considered whether had it been the case that Mrs Bacon was in a close relationship with the former Managing Director but not actually married to him she would have been treated differently.  Instead of carrying out this evaluation the Employment Tribunal appeared to have made its decision based simply on the fact that Mrs Bacon was married to the former Managing Director and this was insufficient.