Hawkins v Atex Group Ltd & Ors (Sex Discrimination : Marital status) [2011] UKEAT 0302_11_1303

EAT
Hawkins v Atex Group Ltd & Ors (Sex Discrimination : Marital status)
[2011] UKEAT 0302_11_1303 · 2012-03-13
[1]This is an appeal against a decision of Employment Judge Griffiths, sitting in the Reading Employment Tribunal, striking out the Appellant’s claim of unlawful discrimination on the ground of what used to be called “marital status”. I can summarise the essential facts, on the basis of the Particulars of Claim and the undisputed contemporary documents, very shortly:(1) The First Respondent (“Atex”) is a digital media software business. It is part of an international group of companies.(2) In March 2004 Mr John Hawkins became the CEO of Atex. The Appellant is married to Mr Hawkins.(3) From September 2006 the Appellant provided HR and marketing consultancy services to Atex through a company jointly owned by herself and Mr Hawkins. Her role was entirely transparent and was known to the board.(4) On 1 January 2010 the Appellant became an employee of Atex, in the capacity of Corporate Marketing Director. It is Atex’s case (though not accepted by the Appellant) that on 30 April 2009, in the course of a meeting with the Second Respondent, who is the Chairman of Atex, Mr Hawkins had been instructed that “no member of [his] family would be further employed by the Company in an executive or professional capacity beyond the end of 2009”; and, on that basis, that the employment of the Appellant was in direct breach of that instruction.(5) On 1 June 2010 the Appellant was suspended pending investigation of various allegations. The only one which matters for present purposes is the allegation that her appointment was unauthorised because it was in breach of the instruction referred to at (4) above. The letter setting out the allegations referred to concerns which had previously been expressed “that you had been allowed to take increasing levels of prominence and influence in matters related to the Company, and that this may be inappropriate given that you are the wife of the CEO”. Mr Hawkins was suspended at the same time, as was his (and the Appellant’s) daughter, Wendy, who had been employed as a Global Human Resources Manager in December 2009.(6) Following a disciplinary procedure the Third Respondent, who was the Director of Atex with responsibility for the decision, wrote to the Appellant terminating her employment with immediate effect (although with payment in lieu of her contractual notice). The letter made it clear that no misconduct had been found on her part and that she was being dismissed solely on the basis that her employment was in breach of the instruction to Mr Hawkins. No explicit attempt was made to justify that instruction, but reference was made in the letter to “the existence of these real or apparent conflicts”. Mr Hawkins and Wendy were likewise dismissed.(7) The Appellant appealed against that decision. Her appeal was dismissed by the Third Respondent, who had succeeded Mr Hawkins as CEO. The letter included the following passage:
“You have raised a number of questions as to why this decision was taken by the Company’s Board of Directors. I feel it is important to explain the rationale to you, as it has ultimately been responsible for your dismissal. As you will appreciate, many companies now have in place nepotism policies to avoid favouritism, undue influence or conflicts of interest in employment decisions. Although ATEX has no such formal policy in place, the Board felt that there was a perception that the Company was being run as a “family business” and that this was inappropriate. It was also felt that having the wife of the CEO perform a senior executive role in the business created an unacceptable conflict of interest and damaged transparency and morale within the management of ATEX.”
[2]The Appellant did not have sufficient length of service to claim for unfair dismissal. But on 13 November 2010 she commenced proceedings in the Employment Tribunal against Atex and the three individual Respondents whose roles have been noted above claiming that her dismissal constituted unlawful direct discrimination by reference to section 3 of the Sex Discrimination Act 1975 , whose terms I set out below. The essence of the Appellant’s case appears from paragraphs 40-42 of the Particulars of Claim, which read as follows:
“40. From the beginning to the end it is clear that the real reason for the Claimant’s dismissal was on the grounds of her marital status. The allegations of conflicts of interest, damage transparency or morale within the management of the Company are unsubstantiated. 41. Therefore, the Respondents have unlawfully discriminated against the Claimant on the grounds of her marital status in that she has been treated less favourably than had she not been married, contrary to Section 3 SDA. 42. The Claimant’s suspension, disciplinary investigation, subsequent summary dismissal and her treatment by the Respondents since her dismissal were all based on the grounds of the Claimant’s marital status, a fact which the Respondents allege rendered her appointment unauthorised.”
[3]On 18 February 2011 the Respondents’ solicitors applied to strike out the claim on the basis that it had no reasonable prospects of success. That application was heard by Judge Griffiths on 3 March 2011. By a Judgment with Reasons sent to the parties on 4 April he held that the facts asserted by the Claimant were not capable of constituting discrimination on the grounds of marital status within the meaning of section 3, and he dismissed the claim accordingly. His reasoning appears at paragraph 18 of the Reasons, as follows:
“There is no doubt that the fact of the marriage is part of the background to this case because it is a necessary part of marriage to a particular person. But it is clear that the Claimant would not have been dismissed if she had been married to a person who had nothing to do with the business. So what is the differentiating factor? It must surely be her marriage to the CEO. In the Tribunal’s opinion marriage on its own cannot be said to be the effective cause. It would be fanciful to say that the effective cause was anything other than the fact of the marriage of the Claimant to a particular person. Given the finding that it was not the fact of marriage alone which gave rise to the dismissal the actual reason may not matter but the Tribunal notes that the Respondents have treated the Claimant and Wendy Hawkins in a similar fashion which certainly gives weight to the Respondents contentions.”
[4]On the appeal the Appellant was represented by Mr Benjimin Burgher and the Respondents by Ms Diya Sen Gupta, both of whom also appeared before the Judge. Their written and oral submissions were of high quality. Following the hearing, but before I had had the opportunity to hand down my judgment, HH Judge McMullen QC handed down the judgment of this Tribunal in Dunn v Institute of Cemetery and Crematorium Management (UKEAT/0531/10), which was also concerned with the effect of section 3 of the 1975 Act. I gave the parties the opportunity to advance further written submissions. This hiatus largely accounts for the delay in handing down this judgment, which I nevertheless regret.[5]I should start by setting out the terms of section 3. It reads as follows:
“ Discrimination against married persons and civil partners in employment field (1) In any circumstances relevant for the purposes of any provision of Part 2, a person discriminates against a person (“A”) who fulfils the condition in subsection (2) if— (a) on the ground of the fulfilment of the condition, he treats A less favourably than he treats or would treat a person who does not fulfil the condition, or (b) he applies to A a provision, criterion or practice which he applies or would apply equally to a person who does not fulfil the condition, but— (i) which puts or would put persons fulfilling the condition at a particular disadvantage when compared with persons not fulfilling the condition, and (ii) which puts A at that disadvantage, and (iii) which he cannot show to be a proportionate means of achieving a legitimate aim. (2) The condition is that the person is— (a) married, or (b) a civil partner. (3) For the purposes of subsection (1), a provision of Part 2 framed with reference to discrimination against women is to be treated as applying equally to the treatment of men, and for that purpose has effect with such modifications as are requisite.”
The reference to civil partnerships was added in 2004 as a result of the Civil Partnerships Act 2004 . Prior to that amendment section 3 read:
“ Discrimination against married persons in employment field (1) A person discriminates against a married person of either sex in any circumstances relevant for the purposes of any provision of Part II if— (a) on the ground of his or her marital status he treats that person less favourably than he treats or would treat an unmarried person of the same sex, or (b) he applies to that person a requirement or condition which he applies or would apply equally to an unmarried person but— (i) which is such that the proportion of married persons who can comply with it is considerably smaller than the proportion of unmarried persons of the same sex who can comply with it, and (ii) which he cannot show to be justifiable irrespective of the marital status of the person to whom it is applied, and (iii) which is to that person's detriment because he cannot comply with it. (2) For the purposes of subsection (1), a provision of Part II framed with reference to discrimination against women shall be treated as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite.”
There is no reason to suppose that the changes made as a result of the 2004 Act were intended to effect any change in so far as concerned discrimination on the ground of marriage: the disappearance of the term “marital status” appears to be simply a consequence of the different drafting structure required to accommodate the reference to civil partnerships. The structure of the amended section, with its reference to the fulfilment of conditions and so forth, is clumsy. Literally, what is proscribed is less favourable treatment “on the ground of the fulfilment of the condition … that [A] is … married”; but that can safely be shortened to “on the ground that A is married”. The equivalent provision of the Equality Act 2010 (section 8) is substantially identically worded. 6. Section 5 (3) of the Act reads as follows:
“(3) Each of the following comparisons, that is— (a) ... , (b) ... , and (c) a comparison of the cases of persons who do and who do not fulfil the condition in section 3(2), must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
[7]I should make two points about section 3(1) which may seem trite but which are relevant to the later discussion: (1) Like its cognates in the other anti-discrimination legislation, it defines direct discrimination by reference to what appears to be a two-part test – namely (a) whether the complainant has been less favourably treated than another person to whom the protected characteristic does not apply (the “comparator” or “less favourable treatment” question); and (b) whether that less favourable treatment is on the grounds of the protected characteristic (the “grounds” or “reason why” question). However, it is now well-recognised that these are, in virtually all circumstances, two ways of asking the same underlying question: see Shamoon v Chief Constable of Royal Ulster Constabulary [2003] ICR 337 , at paras. 8 ( per Lord Nicholls), 49 ( per Lord Hope) and 125 ( per Lord Rodger) (pp. 341, 354 and 377).(2) In some cases the ground of, or reason for, an act which is said to constitute direct discrimination will be apparent without any need to examine the mental processes of the putative discriminator, as where he applies a criterion which overtly or necessarily discriminates by reference to the protected characteristic – e.g. “women must resign on marriage”. In such cases the “motive” of the employer is irrelevant. But in other cases no such overt criterion is applied, and it is necessary to examine the mental processes of the putative discriminator in order to establish whether the characteristic in question was, or was part of, what caused him (consciously or unconsciously) to do the act complained of – his “motivation” (not “motive”), as it is sometimes put. This area was fully discussed in Amnesty International v Ahmed [2009] ICR 1450 , at paras. 31-36 (pp. 1469-1470), which remains good law following R (E) v Governing Body of JFS [2010] IRLR 346 : see Martin v Devonshires [2011] ICR 352 .[8]Although there is some relevant case-law in this field the guidance which it provides is not straightforward, and I prefer to start by considering the issues raised by this appeal without reference to authority.[9]The starting-point must of course be the language of section 3 itself. In my view it is clear that (to use the terminology of the 2010 Act) the characteristic protected by section 3 (1) is the fact of being married [1] – or, to put it the other way round, that what is proscribed is less favourable treatment on the ground that a person is married. That is what the language used says. The same is true of the section in its pre-amendment form: “marital status” naturally means the fact of being married. The relevant comparator is thus, likewise, a person who is not married. Since in any comparison for the purpose of the section the relevant circumstances must be the same but for the protected characteristic (see section 5 (3)), the appropriate comparator will usually be someone in a relationship akin to marriage but who is not actually married: I will use the old and well-understood, albeit much deprecated, phrase “common-law spouse” rather than the modern “partner”, which does not have so specific a meaning.[10]The paradigm case caught by section 3 is thus where a woman [2] is dismissed – or otherwise less favourably treated – simply because she is married. Such cases may seem outlandish now, but they were very common well into the post-War era, even if they had become rarer by the time of the introduction of the 1975 Act. [3] I think it likely that it was this kind of case that Parliament principally had in mind when section 3 was first enacted.[11]A rather less straightforward case is where the reason for the treatment in question comprises both the fact that the complainant is married and the identity of her husband – that is, where she is (say) dismissed not simply because she is married but because of who she is married to. On ordinary principles such a case will fall within section 3 because the fact that she is married is an essential part of the ground of the employer’s action, even though the identity of her husband is an additional element. But it is important to appreciate that this will not be so in every case where a woman suffers less favourable treatment because of her relationship to her husband. It is essential that the fact that they are married is part of the ground for the employer’s action. As Ms Sen Gupta succinctly put it, it is important to get the emphasis in the right place: the question is not whether the complainant suffered the treatment in question because she was married to a particular man , but whether she suffered it because she was married to that man. Some subtleties are involved here. In many, perhaps most, cases of this kind the ground for the employer’s action will not be the fact that the complainant and her husband are married but simply the closeness of their relationship and the problems to which that is perceived to give rise: applying the other half of the “two-part test” (see paragraph 7(1) above), a common-law wife would have been treated in the same way. The employer may in giving his reasons for the conduct complained of have referred to the fact that the two of them are married, or have used the language of husband and wife, but if that merely reflects the fact that in their particular case the close relationship takes the form of marriage, and he would have treated her the same if they were common-law spouses, then section 3 will not apply. Deciding whether the fact that the complainant is married – rather than simply that she is in a close relationship with the man in question – is the ground of the employer’s action (in either of the ways identified in paragraph 7(2) above) will often be easy enough; but sometimes it may be more difficult. There will certainly be some cases where the reason is indeed “marriage-specific”: one example is the case of Chief Constable of Bedfordshire Constabulary v Graham [2002] IRLR 239 which I consider at paragraph 18 below.[12]Mr Burgher did not accept the analysis in the previous paragraph. He submitted that if, in a given case, the close relationship to which the employer objects takes the form of marriage there should be no need to ask anything further: the marriage is the ground of the action, irrespective of whether the complainant would have been treated the same way if she had been simply a common-law spouse. As for section 5 (3), it all depends how you define the relevant circumstances: in this case, you cannot strip out the fact of marriage and yet leave in the equation the closeness of the relationship which is an incident of that marriage. That is a seductive submission, because often (though not always) to subject a spouse to a detriment because of his or her relationship to the other spouse will be unfair, and it is natural to feel that the law should provide a remedy [4] ; but in my view it is wrong. Although marriage and a close personal relationship usually go together, they are conceptually separate and are not inevitable corollaries of one another. They are properly to be treated as separate factors, save in the case where the fact of marriage is indeed the criterion for the action complained of.[13]I am reinforced in that conclusion by policy considerations. It is, I believe, commonly accepted that it will sometimes be legitimate for employers to accord different treatment to employees who are parties to a close personal relationship, for essentially the kinds of reasons alluded to by Atex in the present case – conflicts of interest and perceptions of favouritism, nepotism and the like; and such treatment may be “less favourable”. Yet if the law were as Mr Burgher submits such treatment would be absolutely unlawful in cases where the parties in question were husband and wife, since direct discrimination is of course incapable of justification. That is not in my view a result that Parliament is likely to have intended to achieve, particularly since the identical treatment would not be unlawful (subject to any possible claim of sex discrimination or for unfair dismissal – see n. 4) if the employees in question were in an equally close relationship but did not happen to be married: that seems to me an arbitrary and unacceptable anomaly. The approach which I favour, covering only cases where the employer is motivated (at least in part) by the fact of marriage as such, rather than by the closeness of a relationship which happens to take the form of marriage, seems to me essential if the law in this field is to remain principled and coherent. It leaves the section with a real, though less wide, sphere of operation: see paragraph 10 above.[14]Against that background I can now turn to the authorities. Counsel had evidently done a good deal of research and their submissions were helpfully supported by a well-presented bundle of authorities. This contained a handful of decisions of industrial or employment tribunals, which I need not consider, but otherwise I will take the cases in chronological order.[15]In Glanvill v Secretary of State for Health and Social Services ( The Times 28.7.78) [5] a GP and his wife, who was a midwife and who worked in his practice, brought proceedings in the High Court to challenge the lawfulness of a provision in the regulations governing GPs’ terms and conditions which provided that the contributions made by a health authority to the cost of employing ancillary staff would not be available in the case of a wife or dependant. One of the grounds of challenge was that the exception required doctors in the position of Dr Glanvill to discriminate against their wives within the meaning of section 3 of the 1975 Act. [6] The report of the decision of Talbot J at first instance on this aspect of the case reads as follows:
“As to section 3, the question was whether [Mrs Glanvill] was treated less favourably because she was married. In one sense the answer was yes; but the real and substantial reason was because she was married to Dr Glanvill. That was outside the Act.”
If that, very summary, report accurately reflects Talbot J’s reasoning, it appears to be authority for the proposition that section 3 does not apply in cases where the discrimination alleged is on the basis of marriage to a particular man. Although if that were correct it would mean that the Appellant’s claim in the present case must fail, Ms Sen Gupta in her oral submissions sensibly disclaimed any reliance on it. In my judgment she was right to do so. The reasoning is too short to constitute convincing authority, and it is in any event obiter because the plaintiffs succeeded on different grounds. On the approach which I have advanced above, the denial of remuneration to Mrs Glanvill would have constituted discrimination within the meaning of section 3 provided it was on the ground that she was married to Dr Glanvill – that is, provided that she would have received it if she had been his common law-wife (as it seems would have been the case). [7][16]The first case in which the effect of section 3 was considered in this Tribunal is Skyrail Oceanic Ltd v Coleman [1980] ICR 596. The facts can conveniently be taken from the headnote, as follows:
“The complainant worked as a booking clerk in the employers’ travel agency and her fiancé was similarly employed by a rival agency. Shortly before the marriage the two employers agreed that because of the close association between the complainant and her fiancé there was a risk of disclosure of confidential information, and that as the man was the breadwinner the complainant should be dismissed. The matter was not discussed with the complainant but two days after her marriage she received a letter of dismissal.”
The employers were found liable for discrimination within the terms both of section 1 and section 3 of the 1975 Act (and for unfair dismissal). Their appeal as regards the claim of discrimination was allowed. As regards section 3, Slynn J said this, at pp. 600-601:
“It seems to us here that the tribunal accepted the employers’ case that they had dismissed the complainant because of the risk arising from the close association. It does not seem to us necessarily to follow that since the association arose because the two were married, that concludes the question. In order to establish discrimination contrary to section 3 (1 (a) it has to be shown that there was discrimination “on the ground of his or her marital status”
. It does not seem to us that the decision here was taken simply because the complainant was a married woman. Other married women were employed by the employers. The decision to dismiss was taken because of the risk arising from the close association, no doubt itself following the marriage. It is argued that this, on the facts, cannot be the case because the two had been engaged when they were also in close association. We have no knowledge as to how close their association was during the period of the engagement. Even assuming that it was close, it is to be assumed that after marriage there would be a closer association and that the employers were reasonably entitled to form the view that this increased the risk of communication. It seems to us that the industrial tribunal erred in assuming that because the close association arose from the marriage this was discrimination on the grounds of her marital status. We think that it was not. It seems to us, on the findings of the tribunal and from the notes of evidence, that an unmarried persona in close association would have been treated in the same way, as the employers gave evidence.” At one point in that passage Slynn J appears to be saying that the fact that other married women had not been dismissed was relevant to – or perhaps even decisive of – the question under section 3. To that extent I would respectfully disagree: the position of such other employees was not comparable because none of them was married to an employee of a rival. But if the passage is read as a whole it is clear that the essential point being made is that the ground of the employers’ action was not the fact that the complainant was married to the employee of the rival but rather the fact that the two were in “close association”: see in particular the final sentence. (It is interesting to note that the Appeal Tribunal reached that conclusion even though the complainant was not dismissed when she was merely engaged to the man in question but only at the point when they became married: that makes it all the clearer what distinction it was drawing.) On that basis, the reasoning is wholly in line with my own in paragraph 11 above. [8] Mr Burgher submitted that Skyrail was wrongly decided. On ordinary principles I should be slow to depart from a previous decision of this Tribunal; but in any event I believe that Slynn J’s essential reasoning was right.[17]I should mention for completeness the decision of this Tribunal in Horsey v Dyfed County Council [1982] ICR 755, which concerned a case where an employee had been refused a secondment to undertake a course near London, where her husband was working, because her employer believed that she would be unlikely to return to work on the completion of the course because she would wish to be with her husband. That was held to constitute discrimination within the terms of section 1 of the Act; the Tribunal did not need to, and did not, consider whether it also constituted discrimination within the terms of section 3: see p. 762F. The decision illustrates that cases where wives are treated as adjuncts of their husbands may succeed as claims of “ordinary” sex discrimination, whether or not they fall under section 3.[18]In Chief Constable of the Bedfordshire Constabulary v Graham [2002] IRLR 239 the claimant, a police inspector, was appointed to a post in a division of the force of which her husband was the Commander. Her appointment was rescinded by the Chief Constable. The employment tribunal found that she had been unlawfully discriminated against on the ground of her marital status. On the Chief Constable’s appeal to this Tribunal, Douglas Brown J noted (at para. 3 – p. 240) that:
“[The Chief Constable] gave three reasons for this decision: (a) As the spouse of a serving officer she should not work in the same Division because she would not be a competent and compellable witness against her spouse in any criminal proceedings. (b) It will be difficult for officers under her supervision to make a complaint or take a grievance against her knowing of her relationship with the Divisional Commander. (c) It will be more difficult to deal with any possible problems relating to under performance by her because of her relationship with the Divisional Commander.”
Of those reasons, it was the first which the tribunal held to have been his principal reason.[19]Counsel for the Chief Constable submitted, as recorded at para. 54 of the judgment (p. 244) that:
“The evidence was that the reason for the decision was not that Inspector Graham was married, but that she was married to the Divisional Commander for D Division and that this could potentially undermine the objectivity and integrity of the service. If she had been married to someone else who was not working directly with her that would not have represented any obstacle to her taking up the post. An unmarried officer would have been treated in exactly the same way.”
She referred to Glanvill , and to the decision of an industrial tribunal in John v Neath Borough Council , where the following proposition had been enunciated (para. 55):
“There was no marital discrimination. The real and substantial reason for the treatment was not because the plaintiff was married but because she was married to Dr Glanvill. The Sex Discrimination Act limits discrimination to that which is on the ground of marital status not by reason of being married to any particular person. The submission of counsel for the claimant in response was, as recorded at para. 56: “ Neath and Glanvill are easily distinguished in that in both it was accepted that the decision was not marriage based. In the instant case the tribunal accepted that the major reason for the decision as marriage based, namely the law of evidence as to compellability. That criterion could not possibly be applied to persons who were not married.”
At para. 58 Douglas Brown J, in effect, accepted the latter submission. He said:
“In our view, the tribunal was plainly right. The Chief Constable may have advanced other reasons both at the time of the rescission and later which were not marriage-specific, but his first and primary reason was that “she would not be a competent and compellable witness against her spouse in any criminal proceedings”.”
[20]Graham is accordingly a case of direct discrimination under section 3 where the employee was less favourably treated by the application of a “marriage-specific” criterion relating to her marriage to a particular person. It is thus entirely consistent with the approach which I have advanced at paragraphs 9-13 above. If no reference had been made to that criterion, and the Chief Constable’s grounds had been held to be only one or both of those referred to as (b) and (c) (see paragraph 18 above), the position would have been different, as the reasoning of Douglas Brown J tacitly acknowledges: concerns of the kind identified under those two heads would, almost certainly, arise from the fact of a close relationship and would have led to the claimant being treated in the same way even if she and the Commander had only been common-law spouses.[21]I come finally to Dunn , which – as I have said – had not been decided at the time of the oral argument before me (although I was referred to the decision in the employment tribunal). The facts can be summarised as follows. The claimant brought a grievance about what she saw as a proposed redefinition of her role. Her husband also lodged a grievance in relation to an overlapping issue. When her grievance was not upheld she went off sick. She subsequently resigned when it became clear that the respondents were not proposing to accord her what she believed, and the tribunal held, was her full sick pay entitlement. She claimed that she had been constructively dismissed, but she also advanced a claim under section 3 of the 1975 Act. As regards the latter, the essence of the claim appears to have been(a) that her grievance was delayed so that it could be investigated at the same time as her husband’s and(b) that in some particular respects the handling of her grievance was less thorough than the handling of his. The employment tribunal dismissed her claim. The respondents had apparently argued that “the mistreatment would have to be simply because she was a married person, the identity of her husband being irrelevant” (para. 44 of the Reasons). That argument was plainly wrong – see above – but it does not appear to have been the basis of the decision. The reasoning of the employment tribunal was as follows (para. 45 of the Reasons):
“… we were referred to the case of Chief Constable of the Bedford Constabulary v Graham which appeared to support the proposition that the actual status of marriage must be an issue. That clearly was not the case here. There was no reason to suppose that if the circumstances of any comparator had been the same save for marriage (i.e. if Mr and Mrs Dunn had lived together for the same period of time), the attitude of the Institute might have been any different.”
That is rather summarily expressed, but as I read it the tribunal’s point was that the respondents were motivated not by the fact that Mrs Dunn was married to her husband but simply by the fact that they were in a close relationship, and that that did not fall within section 3. In other words, it was essentially the same reasoning as that adopted in Skyrail and which in my view is correct: see paragraphs 11 and 16 above.[22]That decision was overturned on appeal to this Tribunal. At the very beginning of the judgment,

Judge McMullen says that the issue to which the appeal gives rise is:

“Does an employer act unlawfully if he treats an employee less favourably, not because she is married, but because she is married to a particular man?”
That may be the way, or one of the ways, that the respondents put their case; but it does not seem to me to reflect the actual reasoning of the employment tribunal as set out above. The reasoning of the Appeal Tribunal appears at paras. 29-44 of the judgment. Judge McMullen reviews the reasoning in Glanvill and Graham and in some decisions of industrial or employment tribunals, though not Skyrail , to which the Tribunal was apparently not referred. Having completed that review, he says, at para. 41:
“We are content to follow the precedent set by Graham and to hold that a person who is married or who is in a civil partnership is 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 is marriage-specific is unlawful.”
It will be apparent that I fully agree with that conclusion. However, I have more difficulty with the remainder of the reasoning. Judge McMullen refers to some contemporary documents in which the respondents’ chief executive referred to Mr and Mrs Dunn together as causing difficulties and, in a hostile manner, to “the Dunns” (in which at one point he seems also to have included Mrs Dunn’s brother). On the basis of that material he observes, at para. 42, that there was “no doubt as to the linkage in the respondents’ conduct between the claimant and her husband” and that she was treated adversely “because of her relationship to Mr Dunn” and “as an adjunct to his family”. That material would not seem to me by itself to establish that the ground of the respondents’ treatment of the claimant was, specifically, the fact that she was married to Mr Dunn, rather than simply the fact that they were in a close relationship: indeed the reference to her brother might be thought to point in the opposite direction. At para. 43 Judge McMullen refers to the employment tribunal’s statement that there was no reason to believe that Mrs Dunn would have been treated differently if she and her husband had been living together without being married, but he says that that is “to go only part of the way in the section 5 comparison”: if, as I think, that is essentially the same point as I discuss at paragraph 12 above, I must respectfully disagree, for the reasons there given. The conclusion, at the start of para. 43, is that “the construction adopted by the Employment Tribunal was incorrect”. In context that appears to be a rejection not only of the “particular man” argument (on which the employment tribunal had not in any event relied) but also of the distinction between the cases where the employer is motivated by the complainant’s marriage and where he is motivated by the fact that she is in a close relationship which happens to take the form of marriage. If so, I must, again, respectfully disagree. [9][23]The upshot of that review is that the approach which seems to me right as a matter of principle, as set out paras. 9-13 above, is consistent with the weight of authority. To the extent that that involves my departing from the ratio of Dunn , I do so with the less reluctance because the Appeal Tribunal was not in that case referred to Skyrail .[24]I can turn at last to the decision in the present case. I should start by observing that this was not a case where the Respondents applied any general rule or criterion about married women. The acts complained of were specific to a particular situation (and indeed to Mr Hawkins’ “family” generally). The question was whether those acts were motivated, in whole or in part, by the fact that the Appellant was married to Mr Hawkins.[25]As to that, Mr Burgher’s essential submission, assuming the law to be as I have stated it, was that since the decision required of the Judge was essentially one of fact – i.e. what was the ground of the Respondents’ actions – the case was not apt to be decided on a striking-out application. He referred to such well-known cases, urging caution in the use of striking-out, as Anyanwu v South Bank Students Union [2001] ICR 391 and Eszias v North Glamorgan NHS Trust [2007] ICR 1126 . Ms Sen Gupta in response referred to ABN Amro Management Services Ltd v Hogben (UKEAT/0266/09). In my judgment, in the circumstances of this particular case the uncontested facts were incapable of supporting a finding that the ground of the Respondents’ action fell within section 3 as I have construed it. There was in reality no prospect of the Appellant being able to establish, with or without the assistance of the “reverse burden of proof”, that the Respondents were motivated specifically by the fact that she and Mr Hawkins were married, rather than simply by the closeness of their relationship – or, to put it the other way, that she would not have been dismissed if she and Mr Hawkins had been common-law spouses. It is impossible to conceive of a “marriage-specific” reason for the conduct complained of, and none is alleged in the Particulars of Claim: whether or not the suspicions of conflicts of interest or nepotism which plainly led the Respondents to act as they did were justified, they would as a matter of common sense have arisen equally whether she and Mr Hawkins were married or not. I note also – though this is less central – that the decision complained of affected their daughter equally with her mother. That being so, the Judge was right to strike the claim out. Judges should not be shy of making robust decisions in a case where there is realistically only one possible outcome even if the issue is formally one of fact.[26]It may be debatable whether my reasoning above accords exactly with that of the Judge as appears from the passage from his Reasons set out in paragraph 3 above: there may be some ambiguity about what in the end his reasoning was on the correct approach to section 3. But the issue is one of law, and I am satisfied that on the material before him his conclusion was right, for the reasons given above.[27]I should mention one other argument advanced by Mr Burgher. He submitted that direct discrimination will often be the result of stereotypical views held by the discriminator about persons sharing the protected characteristic, and he referred me to a number of authorities in support of that submission. He submitted that an employer may discriminate against a married women on the basis of stereotypical views about the role of a wife. I do not doubt that in principle that is so, but it remains the case that the relevant stereotype has to be specific to a married person. There may or may not be a stereotype that partners to an intimate relationship are, say, incapable of maintaining any necessary confidentiality about business matters; but unless in the present case the Appellant had a prospect of showing that any such stereotype applied only to married persons the submission goes nowhere.[28]For those reasons I dismiss this appeal. [1] Or, of course, being in a civil partnership, but I ignore that alternative in what follows for the sake of simplicity. [2] In principle, of course, the section applies equally to a man, but again I will refer simply to a woman for the sake of simplicity. [3] At least two such cases are reported – Bick v Royal West of England Residential School for the Deaf [1976] IRLR 326 and North East Midlands Co-operative Society Limited v Allen [1977] IRLR 212 – though the decisions in both turned on rather particular points. Somewhat further back, it was established practice for civil servants and for air hostesses to be dismissed on marriage. [4] If the detriment took the form of dismissal, he or she could of course claim for unfair dismissal (as indeed the Appellant could have done here if she had sufficient qualifying service); but that would of course only cover some cases. (There might also be a claim for sex discrimination, if it were found that a spouse of the other sex would not have been treated the same way – this was the ratio of the cases of Skyrail (in the Court of Appeal) and of Horsey v Dyfed County Council to which I refer below; but, again, that would not always be so.) [5] There is also a case note in the British Medical Journal for 2.9.78. [6] That is actually an oversimplification, since the regulations did not prevent Dr Glanvill paying his wife: they only meant that he could not claim reimbursement if he did so. But it is unnecessary to pursue the question of whether Dr Glanvill himself had any claim under the Act. [7] I should say that the case subsequently went to the Court of Appeal ( The Times 20.11.79 – though through the diligence of counsel I was also shown the full transcript), but the Court expressed no view on the effects of section 3. [8] Again, the case went to the Court of Appeal – [1981] ICR 864 – where the complainant succeeded on the basis of discrimination under section 1; but the Court did not consider the claim under section 3. [9] I should note for completeness that in Dunn arguments were also advanced based on EU law and on the European Convention of Human Rights . The Appeal Tribunal felt able to decide the case without reference to those arguments, though it did offer some observations on them. I heard no such arguments and have nothing to say on this aspect.