Discrimination - Sex discrimination
Hawkins v Atex Group Ltd and others: Employment Appeal Tribunal (Mr Justice Underhill): 13 March 2012
In 2004, the employee's husband became chief executive of the first employer company, Atex. From September 2006, the employee provided HR and marketing services to Atex through a company jointly owned by herself and her husband. In January 2010, the employee became an employee of Atex as corporate marketing director. The employee's daughter was also employed by Atex. Later in 2010, the employee, her husband and their daughter were all dismissed. The reason for the employee's dismissal was that she was a member of her husband's family.
In November 2010, the employee commenced proceedings in the employment tribunal (the tribunal) claiming unlawful direct discrimination pursuant to section 3 of the Sex Discrimination Act 1975 (the act) on the basis that the reason for her dismissal had been her marital status. In April 2011, the employee's claim was struck out by the tribunal on the basis that it had no reasonable prospect of success as the facts asserted were not capable of constituting discrimination on the grounds of marital status. The employee appealed to the Employment Appeal Tribunal. The principal issue that fell to be determined was whether the tribunal had erred in striking out the claim. The appeal would be dismissed.
It was established law that the characteristic protected by section 3 of the act was the fact of being married. The relevant comparator was a person who was not married. Since in any comparison for the purpose of the section 3 of the act the relevant circumstances had to be the same but for the protected characteristic, the appropriate comparator would usually be someone in a relationship akin to marriage but who was not actually married. It was important to appreciate that a case where a woman was dismissed because she was married to a particular person would not always fall within the scope of section 3 of the act. It was essential that the fact that they were married was part of the ground for the employer’s action. It was important to get the emphasis in the right place: the question was not whether the employee 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 (see ,  of the judgment).
In many, perhaps most, cases of this kind the ground for the employer’s action would not be the fact that the employee and her husband are married but simply the closeness of their relationship and the problems to which that was perceived to give rise. A common-law wife would have been treated in the same way (see  of the judgment). In the instant case, the uncontested facts had been incapable of supporting a finding that the employers' actions had fallen within section 3 of the act. There had been no prospect of the employee being able to establish that the employers had been motivated specifically by the fact that she and her husband were married, rather than simply by the closeness of their relationship (see  of the judgment).
Dunn v Institute of Cemetery and Crematorium Management  All ER (D) 173 (Feb) doubted; The Chief Constable of the Bedfordshire Constabulary v Graham  IRLR 239 applied; Skyrail Oceanic Ltd v Coleman  IRLR 226 applied; Glanvill v Secretary of State for Social Services (1978) 122 Sol Jo 611 considered; Horsey v Dyfed County Council  IRLR 395 considered.
Benjamin Burgher (instructed by Olephant Solicitors) for the employee; Diya Sen Gupta (instructed by Mishcon de Reya) for the employers.