Employment Appeal Tribunal rules on direct discrimination on the grounds of marriage

The Employment Appeal Tribunal has recently confirmed that the dismissal of a Minister because of his marital difficulties could amount to direct discrimination on the grounds of marriage.

In case of Reverend J Gould v Trustees of St John’s Downshire Hill, Rev Gould was dismissed because the breakdown of marriage was unacceptable to the Trustees. He claimed that this amounted to “direct discrimination”, on the basis that he was treated less favourably because of his marriage.

Rev Gould had been an employee for over 20 years, and had been married for a large proportion of that time. In May 2015 it came to the attention of the Trustees that his marriage was in difficulties, with his wife leaving the marital home. The Trustees were deeply concerned that the breakdown of the marriage would cause Rev Gould’s position as a minister to be untenable. They proposed that Rev Gould be given a sabbatical in order that he have an opportunity to restore his marriage. During the sabbatical Rev Gould alleged that he was subjected to a campaign of criticism from the leadership team and congregation in relation to his marriage.

Towards the end of the sabbatical Rev Gould was invited to a meeting to discuss his plans and to consider whether he should continue in his employment. No meeting took place and instead Rev Gould was dismissed on the basis of a breakdown in trust and confidence. Rev Gould brought a claim for unfair dismissal and direct discrimination on the grounds of marital status.

The question before the Employment Appeal Tribunal was whether the reason for his dismissal was the marriage itself or the martial difficulties. The Trustees tried to argue that a dismissal because of marital difficulties was not discriminatory on the grounds of marriage, because marriage difficulties are not a proxy for marriage. The Employment Appeal Tribunal disagreed. They decided that, “if the fact that an employee is married plays an operative part in the reason or reasons the employer has for treating the person less favourably, that is sufficient to engage the protection [against discrimination]”.

It is important to note that in a case of direct discrimination, there is no statutory defence. In cases of indirect discrimination it is a defence to show that the decision was “a proportionate means of achieving a legitimate aim”, however that option is not available in direct discrimination cases. Therefore, any employer making decisions involving marriage or marital status that may be “less favourable” will need to be aware of the risk of a discrimination claim.

It is interesting that in this case the Trustees did not appear to rely on the occupational requirements defence which can in some circumstances allow religious organisations to discriminate on the grounds of marriage, provided that they can show the decision is made in order to comply with the doctrines of religion, or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.