Sex discrimination - Employee married to husband - Tribunal dismissing claim

Dunn v Institute of Cemetery and Crematorium Management: EAT (Judge McMullen QC, Mrs R Chapman and Mr P Smith): 2 December 2011

In December 2007, the employee commenced employment for the employer as technical services manager (northern). The purpose of her appointment was that she could establish an office in the north of Britain.

In February 2008, she was told that there would be changes to her entitlement to sick pay. During consultation on the matter, issues arose as to the employee’s responsibilities and performance which upset her. She registered grievances about changes to her contract which were rejected. In September 2008, she went off sick. Later that month, the employer decided to shelve the northern office project. In October, the employee was informed of the proposal to remove her role and a consultation was started. In February 2009, the employee resigned. She brought a claim in the employment tribunal for, inter alia, sex discrimination under section 3 of the Sex Discrimination Act 1975 in that the employer had treated her less favourably because she was married to D, her husband.

The tribunal held that the employee was not discriminated against on the ground of her status as a married person, but because of her relationship to D and, accordingly, the claim of direct discrimination failed. The employee appealed to the Employment Appeal Tribunal (EAT). Before the EAT, documents were referred to including statements from the employer’s chief executive, M, to the effect, inter alia, that D had ‘relentlessly harassed’ him. Those statements further accused the employee of being aware of D’s ‘private commercial activities’.

The principle issue that fell to be determined was whether the act applied to protect the employee, whose complaint was that she had been discriminated against on the ground of being married to D. In respect of that issue, consideration was given, inter alia, to the EAT decision in Chief Constable of the Bedfordshire Constabulary v Graham [2002] IRLR 239. The employee further invoked article 8 of the European Convention on Human Rights, claiming that her right to respect for private and family life had been breached. In respect of the latter issue, consideration was given to articles 12 and 14 of the convention and the Human Rights Act 1998. The appeal would be allowed.

(1) Graham was the authority for the proposition that a married person was protected by section 3 of the act by reason of her being married to her husband. It followed that any person who was married, or in a civil partnership, was protected against discrimination on the ground of that relationship and on the ground of their relationship to the other partner. Any less favourable treatment which was marriage-specific was unlawful (see [38], [41] of the judgment).

In the instant case, Graham was correct and applicable. There could have been no doubt as to the link in the employer’s conduct between the employee and D. It was clear that the employer’s officers had treated the employee the way they had, adversely, because of her relationship to D. She was treated as an adjunct to his family. There would have been no reason to raise, in the employee’s grievance proceedings, matters relating to D unless they were married. Accordingly, the construction adopted by the tribunal had been incorrect (see [40], [42], [43] of the judgment).

(2) In the instant case, article 8 of the convention was engaged. There was no reason for the employer’s ­attitude towards D’s involvement to adversely affect the employee’s ­treatment at work. Article 12 of the convention was probably only subsidiary (see [53] of the judgment).

The case would be remitted to the original tribunal for determination of whether the employee had been unlawfully discriminated against on the construction of the act, applying articles 8, 12 and 14 of the convention (see [56] of the judgment). X v Y [2004] IRLR 625 considered.

Charles Millett of Morecrofts, Liverpool for the employee; Daniel Northall (instructed by Beachcroft, Leeds) for the employer.