In sickness and in work

Section 3 of the Sex Discrimination Act (SDA, now included in the Equality Act) states that it is discriminatory to treat married people less favourably because of their marital status. In Dunn v Institute of Cemetery and Crematorium Management, the Employment Appeal Tribunal (EAT) said that it is also discriminatory to treat someone less favourably because they are married to a particular person.

Basic facts

After working as a volunteer, Mrs Dunn was appointed Technical Services Manager (Northern) in December 2007, with the specific brief of opening a northern office for the Institute.

A few months later, she lodged a grievance because of proposed changes to her sick pay entitlement, which was rejected. She went off sick on 3 September 2008 and her solicitors wrote to the Institute on 16 September, alleging sex discrimination and victimisation, among other things.

The Institute wrote to her on 11 October, telling her that it was shelving the idea of opening a northern office and that she was at risk of redundancy. Mrs Dunn then resigned in February 2009 and claimed constructive dismissal, on the basis that she was being paid a lower rate of sick pay than anyone else, which amounted to a fundamental breach of her contract.

She also claimed victimisation on the grounds that her treatment was due to her complaint of sex discrimination, and discrimination on the grounds of her marital status under the SDA. In respect of this element of her claim, Mrs Dunn argued that the reason for her less favourable treatment was because of who she was married to (as her husband was also involved in a dispute with the Institute).

Tribunal decision

The Tribunal upheld her claim of constructive dismissal and agreed that she had been victimised for doing a protected act (making a complaint) under the SDA.

However, it dismissed her claims of sex discrimination relating to her marital status, because although she had been treated less favourably, this was not because of her marital status in general. It was because she was married to Mr Dunn in particular, and the Tribunal decided that this type of complaint was not covered by the SDA.

EAT decision

Relying on the decision in Chief Constable of the Bedfordshire Constabulary v Graham, the EAT upheld Mrs Dunn’s appeal.

In this case, a job offer made to Mrs Graham, a police inspector, was withdrawn because it would have required her to work for a force where her husband was the Chief Superintendent. The court found that this was discriminatory because, had her husband not been the commander, Mrs Graham would have been able to take up the position. The reason, therefore, was specific to that marriage and she was discriminated against “because of her status of being married to her husband”.

The EAT concluded that anyone who is married (or 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”.

In this case, it said there was no doubt “as to the linkage in the Respondent’s conduct between the Claimant and her husband.... The Claimant is expressly linked to her husband… It is clear that the Respondent’s officers treated the Claimant the way they did, adversely, because of her relationship to Mr Dunn. She is treated as an adjunct to his family”. Consequently, it found that Mrs Dunn had been unlawfully discriminated against on the grounds of her marital status.