One of the least often claimed grounds of discrimination is marriage and civil partnership. Prejudice against married people is hardly widespread and there are few circumstances in which an employer might treat an employee less favourably because they were married. The case of Gould v St Johns Downshire Hill demonstrates how difficult it is for an employee to make a successful claim of direct discrimination on the grounds of marriage. The Reverend Gould was employed as a vicar in a ‘proprietary chapel’. This is a church which enjoys semi-independent status from the Church of England and the clergy are directly employed by a governing body of trustees under a normal contract of employment. Rev Gould was dismissed by his governing body after serving for some 15 years on the stated ground that it had lost trust and confidence in him.
The governing body had become increasingly unhappy with his conduct, citing a range of governance issues, his lack of communication with trustees and his management of junior clergy. As a background to all of this, however, was the breakdown of his marriage. A number of the trustees took a conservative approach to marriage and believed that a failed marriage would make a minister’s position untenable. Advice was taken from the local bishop who made it clear that any decisions made about Rev Gould’s future should not be based on the state of his marriage but his performance and behaviour in the role.
After his dismissal, Rev Gould claimed that he was discriminated against on the grounds of marriage. He argued that the failure of his marriage was an important part of the background to many of the issues the governing body had with his performance. Had he not been married these concerns could not have arisen.
The Employment Appeal Tribunal (EAT) upheld the tribunal’s finding that there was no discrimination. In a direct discrimination claim the less favourable treatment complained of had to be ‘because of’ the protected characteristic – in this case, marriage. That meant that marriage had to be part of the reason for the decision itself and not just a background circumstance. The fact that the whole situation would have been different if Rev Gould had been single was not sufficient. The Tribunal had found that there were a range of issues quite unrelated to his marriage that led the trustees to dismiss him and that the trustees had followed the bishop’s advice to disregard any concerns they had on that issue. While a dismissal on the grounds that a marriage had broken down could be discriminatory, that was not what had happened here. The fact that some of the conduct for which Rev Gould was dismissed had arisen in the context of his marital problems, did not mean that those problems were the reason for his dismissal.
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Transfer of Undertakings – changing contracts
