In the case of Dunn v The Institute of Cemetery & Crematorium Management UKEAT/0531/10/DA, the Claimant appealed against the ET ruling that she had not been the subject of less favourable treatment on grounds of her marital status.
This case was brought before the Equality Act 2010 came into force, but the case remains applicable even though the Claimant was relying on the now abolished Sex Descrimination Act 1975 (SDA).
Section 3(1)(a) of the SDA states that "A person discriminates against a married person of either sex…if on 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….a comparison of the cases of persons of different marital status must be such that the relevant circumstances in one case are the same, or not materially different in the other."
The basic facts of the case are that the Claimant had a dispute with her employer for whom her husband also worked. The case revolves around the fact that her husband was also in dispute with the employer. She claimed that she was entitled to resign and claim constructive dismissal and marital discrimination when she suffered a detriment as a consequence of being married to her husband and his dispute with their employer.
The EAT had to decide whether the SDA extended not just to dismissal on grounds of being married (the “Marital status”), which would not have been made out on the facts but also to dismissals on grounds of being married to a particular person, namely Mr Dunn. The EAT recalled bygone years where women were dismissed just because they got married and gave examples of air stewardesses, which appeared to be the main cause for the introduction of marital discrimination.
However, the EAT concluded, in referring to the case of Graham involving married police officers, that section 3 of the SDA did extend to “Marriage-Specific” discrimination, that is to say, discrimination specific to that marriage and the matter was remitted to the ET for a re-hearing.
