The Facts

Mrs Hawkins was married to the chief executive of Atex and became employed by the company as its corporate marketing director. She was suspended 6 months after starting employment to allow investigation into various allegations, including that her employment was in breach of a instruction given to her husband by Atex’s chairman not to employ any family member in an executive or professional capacity. The chief executive was also suspended, as was his daughter, who was employed in HR, and disciplinary proceedings resulted in all three family members being dismissed. The reason was the concern that Atex was being run as a “family business”, which was inappropriate, compounded by the fact that having the wife of the chief executive in a senior executive role created an unacceptable conflict of interest and damaged both transparency and management morale. A tribunal struck out the claim of discrimination on grounds of being married, brought by Mrs Hawkins, because marriage was not the effective cause of the dismissal. The effective cause was her marriage to a particular person and their close association gave rise to concerns about the management of the business, further evidenced by the dismissal of the daughter.

The Judgment

The EAT agreed with the tribunal. The claim had no prospect of success. Protection against discrimination is provided where the less favourable treatment is because of being married. The relevant comparator in like-for-like circumstances is a person who is not married, but in a close relationship with someone that equates to marriage, such as a common-law spouse. For the case to succeed, Mrs Hawkins would have to show that she was dismissed simply because she is married. But the facts did not support her case. Firstly, the effective cause of the treatment was not that she was married – it was concerns about potential conflicts of interest or nepotism – and secondly, because of these concerns, the comparator, a common-law spouse, would have been treated in exactly the same way, so there could be no direct marriage discrimination.

The Implications

The case emphasises that the scope of protection because of being married is narrow because a claimant has to show that the reason for less favourable treatment – the effective cause – was purely because he or she is married. It also highlights that all cases of direct discrimination must be judged by making a comparison with how another person who does not have the protected was, or would have been, treated in like-for-like circumstances. This case confirms that in marriage discrimination, a common law spouse is the correct comparator, and if he or she would have been treated in the same way, then there can be no marriage discrimination.

Hawkins v Atex Group Ltd and ors IDS Brief 950