Discrimination: Marital status

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Discrimination: Marital status

Published 7 February 2023


Ms Bacon joined Advanced Fire Solutions Ltd as a bookkeeper.  She later married Mr Bacon, the managing director and majority shareholder, and she subsequently became a director and shareholder.  Mr Ellis later joined the company as a director (later managing director) and 10% shareholder. 

Soon after Mr Ellis had joined the company, Ms Bacon told Mr Bacon that she wished to separate from him.  This was the start of an acrimonious divorce.  False allegations were made against her, she was suspended and then dismissed by a letter signed by Mr Ellis.  A wholly baseless complaint about her was made to the police. 

An employment tribunal found that Mr Ellis had sided with Mr Bacon in the marital dispute, and was compliant with him in removing Ms Bacon’s directorship, not paying her dividends, reporting her to the police and suspending and dismissing her on spurious grounds.  It held that these actions were less favourable treatment by Mr Ellis against Ms Bacon because of her marital status as a wife to Mr Bacon, and that she had therefore suffered discrimination on the grounds of marital status. 

Mr Ellis appealed to the EAT, saying that the tribunal erred in its conclusion because it failed to properly address the statutory test as to the cause of the unfavourable treatment or to consider the appropriate hypothetical comparator. 

The EAT commented that the issue was whether Mr Ellis treated Ms Bacon in the unfavourable ways identified because she was married.  The question was not whether she was badly treated because she was married to a particular person.  Another way of looking at it would be to ask whether an unmarried woman whose circumstances were otherwise the same as hers, including being in a close relationship with Mr Bacon, would have been treated differently.  The EAT considered that the tribunal had not turned its mind to the appropriate hypothetical comparator. 

The EAT therefore allowed the appeal.  The judge commented that it did so “with a very heavy heart” and that “Ms Bacon was very badly treated by Mr Ellis, amongst others”. 


Claims of discrimination on the basis of marital status are very unusual and (as shown by this case) the protection given by the legislation is intentionally very narrow.  The legislation will only protect people who are married or in a civil partnership from being treated less favourably when compared with people who are not married or in a civil partnership. In this case, Ms Bacon may have had more success in her claim had she pleaded sex discrimination in the alternative.

Mr Graham Ellis v (1) Ms K Bacon; (2) Advanced Fire Solutions Ltd (In Administration)


Hilary Larter

Hilary Larter


+44 (0)113 251 4710

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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