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14th December 2011

Marital Status Discrimination

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Are individuals protected from being treated less favourably because they are married to a particular person?

It is unlawful for an employer to treat an employee less favourably because they are married. However, are employees protected from being treated less favourably because they are married to a particular person? For example, what happens where the employer simply does not like the employee’s spouse?

The case of Dunn v Institute of Cemetery and Crematorium Management has confirmed that employees shall be protected from less favourable treatment in these circumstances.

Mrs Dunn was employed by the Institute of Cemetery and Crematorium Management (ICCM). She had been appointed to establish a northern office for ICCM. Mrs Dunn raised grievances regarding changes to her contract in relation to her contractual sick pay entitlement. Mrs Dunn’s grievances were rejected. During the grievance appeal the Chief Executive of ICCM raised issues in relation to the actions of Mrs Dunn’s husband, who was also employed by ICCM. There was evidence of a dispute between the Chief Executive and Mr Dunn, but the points raised had no relevance to Mrs Dunn’s grievance.

After the grievance appeal was also rejected, Mrs Dunn was signed off sick. She alleged that she had been subjected to sex discrimination and victimisation. ICCM subsequently decided not to open the northern office and informed Mrs Dunn that it was proposed her role would be made redundant.

Mrs Dunn resigned and claimed constructive dismissal. She also claimed that she had been discriminated against on the basis that she was married to Mr Dunn. The Employment Tribunal found that Mrs Dunn’s dismissal was unfair but dismissed her claim for discrimination. The Tribunal held that ICCM had treated Mrs Dunn less favourably, but that this was not because she was married, it was because she was married to a particular person, that is, Mr Dunn. Other employees at ICCM were married and had not been treated less favourably and so the Tribunal held that Mrs Dunn’s claim for sex discrimination could not succeed.

Mrs Dunn appealed to the Employment Appeal Tribunal (EAT) and her appeal was successful. The EAT found that it was clear from the evidence that Mrs Dunn had been treated less favourably by ICCM because she was married to Mr Dunn. The EAT also held that the relevant legislation meant that any less favourable treatment, where the reason for that treatment was that that person was married, is unlawful. As such the EAT found that individuals would be protected from less favourable treatment not just where that treatment was because they were married, but also where the less favourable treatment was because they were married to a particular person.

For more information or advice, please contact Gemma Hill on 01604 233233 or on gemmahill@hewitsons.com