United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0531/10/DA

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

 

At the Tribunal

On 12 September 2011

Judgment handed down 2 December 2011

 

 

 

Before

HIS HONOUR JUDGE McMULLEN QC

MRS R CHAPMAN

MR P SMITH

 

 

 

 

 

MRS A DUNN APPELLANT

 

 

 

 

 

 

THE INSTITUTE OF CEMETERY AND CREMATORIUM

MANAGEMENT RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

(paragraphs 17, 51 corrected under Rule 33(1)(c)

5 December 2011)

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR CHARLES MILLETT (Solicitor) Morecrofts LLP No 1 Tithebarn 1-5 Tithebarn Street Liverpool Merseyside L2 2NZ
For the Respondent	MR DANIEL NORTHALL (of Counsel) Instructed by: Beachcroft LLP Solicitors 7 Park Square East Leeds LS1 2LW

 

SUMMARY

 

SEX DISCRIMINATION – Marital status

 

The Employment Tribunal, which upheld the Claimant’s unfair dismissal claim, was wrong to hold that the protection under section 3 of the Sex Discrimination Act as amended of married persons does not include protection of a person who is discriminated against on the ground that she is married to a particular person.  Although the Respondent did not discriminate against married people generally, the Claimant was entitled to claim that her unfavourable treatment was marriage-specific and specific to that marriage.  The 1976 Equal Treatment Directive was not of assistance in interpretation.  The Claimant’s ECHR rights under Arts 8, 12 and 14 were engaged. Two findings of the Employment Tribunal on marital discrimination remitted to it. The cross appeal on victimisation was dismissed.

HIS HONOUR JUDGE McMULLEN QC

 

1.              The question in this case is: does an employer act unlawfully if he treats an employee less favourably, not because she is married, but because she is married to a particular man?  The judgment in this case represents the views of all three members, who have contributed to it, with their diverse specialist experience, appointed as such by statute.  We will refer to the parties as the Claimant and the Respondent.

 

Introduction

2.              It is an appeal by the Claimant in those proceedings against a Judgment of an Employment Tribunal sitting at Liverpool, chaired by Employment Judge Reed over five days, registered with Reasons on 4 August 2010.  The Claimant was represented by counsel and today by her solicitor, Mr Charles Millett, and the Respondent throughout has been represented by Mr Daniel Northall of counsel.  The Claimant claimed that she was unfairly dismissed, subjected to unlawful victimisation contrary to the Sex Discrimination Act 1975 and unlawfully discriminated against on the grounds of her sex and being a married person.

 

3.              The Tribunal upheld her claim of unfair dismissal.  It held she was subject to harassment but this is accepted by the parties to be an error, and the finding is one of victimisation for having done a protected act under the Sex Discrimination Act, viz having made a complaint.  The Tribunal dismissed the claims of discrimination, primarily because the sex discrimination claim had not been put to relevant witnesses and, in respect of “married person” discrimination, she was not within the scope of the protection, as a matter of construction of the Act.

 

4.              The Claimant appealed.  It was sent to a preliminary hearing by Cox J.  There, Bean J and Members dismissed a number of the grounds including perversity but were concerned principally with the arguability of the construction point.  That wider formulation includes marriage to a particular person and to a person in a wider group defined by some general characteristic such as faith, race, age, social class, previous marriage, etc.

 

5.              The Respondent cross-appeals on the finding of victimisation.

 

The legislation

6.              The events in the instant case took place during 2008 and up to February 2009.

 

Domestic provisions

7.              The Sex Discrimination Act 1975 as originally enacted contains the following in relation to direct discrimination:

 

“3.  Discrimination against married persons in employment field.

(1)  A person discriminates against a married person of either sex ... if:

(a) on the ground of his or her marital status he treats that person less favourably than he treats or would treat an unmarried person of the same sex ...”

(3) ...

... a comparison of the cases of persons of different .... marital status ... must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

8.              Following amendments in 2005 to take account of civil partnerships (Civil Partnership Act 2004) the 1975 Act was amended in the following way:

 

“3 Discrimination against married persons and civil partners in employment field.

(1)... a person discriminates against a person (“A”) who fulfils the condition in subsection (2) if –

(a)     on the ground of the fulfilment of the condition, he treats A less favourably than he treats or would treat a person who does not fulfil the condition ..

 

(2)  The condition is that the person is

(a) married, or

(b) a civil partner

 

5        ... (3) ...

(c)      ... a comparison of the cases of persons who do and who do not fulfil the condition in section 3(2)...

must be such that the relevant circumstances in the one case are the same , or not materially different, in the other.”

 

9.              By section 8 of the Equality Act 2010, a married person “has the protected characteristic of marriage” from 1 October 2010 with enforceable rights against discrimination.

 

EU provisions

10.          It is common ground that the 1975 statute gives effect to Council Directive 76/207/EEC, the 1976 Equal Treatment Directive, albeit it preceded it.  Article 2 provides as follows:

 

“2.1 ... the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex, either directly or indirectly by reference in particular to marital or family status.”

This appears to treat marital status as a form of sex discrimination, indeed elevating it for protection “in particular”.

 

11.          The Equal Treatment Framework Directive 2000/78/EC is “without prejudice to national laws on marital status ...” (Recital 22). The substance of the text makes no reference to marital or family status.  Art 1 deals only with “religion or belief, disability, age or sexual orientation”.

 

12.          The 1976 Equal Treatment Directive was repealed by Directive 2006/54/EC, which is known as the Recast Equal Treatment Directive.  It took effect on 15 August 2006, and the 1976 Directive was repealed with effect from 15 August 2009 (see Article 34 of the Recast Directive).  The Recast Directive was made for “bringing together in a single text the main provisions existing in this field” (Recital 1). It is by its long titles expressly directed to equal treatment between men and women. Implementation of the Recast Directive had to be achieved by 15 August 2008 but could if necessary due to national difficulties be put off for one year (Article 33). Article 33 also says this

 

“...The obligation to transpose this Directive into national law shall be confined to those provisions which represent a substantive change as compared with earlier Directives. The obligation to transpose the provisions which are substantially unchanged arises under the earlier Directives.”

 

13.          No specific regulation was made in the UK for transposition within the timescale. Arguably, transposition of the Recast Directive took place on the commencement of the Equality Act on 1 October 2010 but the obligation to do so is qualified by Art 33. 

 

14.          In Annex II is a correlation table. There is no mention of Art 2.1 of the 1976 Directive or its correlative. This is not surprising because there is no reference in the Recast Directive to “marital or family status”. What is surprising is why the protection which existed for 30 years, and was emphasised “in particular”, is not now an express provision. On its face, there is a substantive change from the earlier Directive.

 

15.          By comparison, a protective regime for “marital and family status” similar to that under the 1976 Directive applied to the self-employed: Directive 86/613/EEC. This was repealed by Directive 2010/41/EU.  The latter in substance gives protection insofar as not covered by the Recast Directive (Art 1.1).  It also protects the “spouses and life partners” of self-employed workers who do the same tasks as the protected worker.  Recital 22 provides

 

“This Directive should be without prejudice to the rights and obligations deriving from marital or family status as defined in national law.

 

It does not in the substantive text continue the protection which was in the 1986 Directive. This was in the first draft proposed but it did not make its way into the final draft.

 

16.          If we were construing the self-employed Directive we would say that there was a conscious intention to leave marital and family status protection to national law. It was regulated by EU measures from 1986-2010 but not thereafter. This is because there is no follow-through of the Recital into the text, and there is express reference to spouses who are protected in a very limited way, but not to the same extent as before. So the EU legislators plainly were aware of it. This approach may explain the absence of marital and family status from both the recitals and the substantive text of the Recast Directive. The 1976 Directive on marital and family status was an “existing provision” but it was decided not to bring it into the Recast Directive.

 

17.          The upshot of this exercise is that the 1976 Directive was in force during the Claimant’s career when the relevant events occurred. It cannot have direct effect against this private sector Respondent. As the 1975 Act gave effect to it, and the 2005 amendment to section 3 was made while it was in force, those statutory provisions should be construed so as to give effect to the purpose of the 1976 Directive. She may rely on the Directive and the doctrine of purposive interpretation to construe the 2005 amendment.

 

18.          What is at once apparent is that there is no transposition of “family status”. Essentially she argues that this court should add words to section 3 to include family status. She seeks to argue in this court that the UK failed to comply with its Treaty obligation to provide protection for family status. After its repeal on that date, if she could rely on the Recast Directive, it is of no help to construction since there is no mention of marital or family status. The 2005 amendment simply cannot be construed to give effect to the later 2006 Recast Directive.

 

Convention rights

19.          Article 8.1 ECHR is invoked by the Claimant. It provides

“Everyone has the right to respect for his private and family life”

 

20.          Article 12 gives the right to marry and Art 14 guarantees the enjoyment of the Claimant’s Convention rights without discrimination on any ground such as her “other status”.

 

The facts

21.          The Respondent Institute employed a dozen people. It is a company limited by guarantee dating back 100 years. It provides education, training and support for its members. The officers were: Chief Executive Mr Morris, Chairman, Mr Dry, President, Mr Birch.  The Claimant became an employee in December 2007 as Technical Services Manager (Northern).  She had previously been a volunteer.  The purpose of her appointment was that she could establish an office in the north of Britain

 

22.          Pursuant to her written contract, she had entitlement to sick pay, depending on length of service.  She was told in February 2008 that changes would occur to that entitlement. During the course of consultation on this matter, issues arose as to the Claimant’s responsibilities and performance which upset her.  She registered grievances about changes to her contract which were rejected.  She went off sick on 3 September 2008.  Solicitors instructed on the Claimant’s behalf on 16 September 2008 alleged among other things sex discrimination and victimisation.  On 23 September 2008 the board considered the northern office.  It decided to shelve the project.  On 11 October 2008, Mr Morris wrote to the Claimant confirming a proposal to delete her post and starting consultation.

 

23.          Following what the Claimant says was an absence of response from the Respondent she tendered her resignation on 25 February 2009.  She contended that the last straw was the failure by the Respondent to pay the appropriate rate of sick pay.  Her case was that at the time this dispute arose on 8 September 2008, it was the reasonable expectation of an employee in the event of sickness absence that she would be paid at the rate of six months’ full pay and six months’ half pay.  She contended she was singled out for a lower rate of pay than anyone else in her circumstances.  This constituted a fundamental breach of her contract.

 

24.          She contended that the treatment she had received was in breach of the Sex Discrimination Act 1975 in that the Respondent treated her less favourably because she was married to Mr Dunn.  She was an adjunct to him.  The Tribunal accepted there was little authority on the subject.  It was referred to Chief Constable of the Bedfordshire Constabulary v Graham [2002] IRLR 239 (see below).  It held it was not discrimination on the ground of the Claimant’s status as a married person but because of her relationship to Mr Dunn.  On this basis, claims of direct discrimination failed.

 

25.          However, the Tribunal went on to say “for the purpose of completeness” that it would dismiss the various allegations which she had made.  There were twelve.  Relevant before us are the following two findings:

 

“46. 4.  Witnesses could not be called to the grievance meeting.

We accepted that Mr Dunn was treated differently in this regard but it appeared to us that the reason for the difference had nothing to do with sex or marital status but was rather the outcome of a confused and confusing approach on the part of the Institute, possibly brought about by the advice of Mr Ward (who was a volunteer himself).

46.10.  Evidence was produced by Mr Morris to the appeal that Mrs Dunn did not see.

This is undoubtedly correct.  Although we accepted that Mr Birch had set it to one side, its very production by Mr Morris of itself might give rise to a cause of action.  Furthermore, the elements of that evidence rejected by Mr Birch were really directed at Mr Dunn.  Notwithstanding the commonality of their grievances, the nature of the additional evidence produced by Mr Morris was not directly relevant to Mrs Dunn’s grievance.  There was no real reason to assume that he would have produced such evidence in relation to any other employee.  Accordingly, if Mrs Dunn’s interpretation of marital discrimination is right (and ours is wrong), it would appear this would give rise to a justifiable claim.”

 

26.          As to paragraph 46.4 there is a correction to be made, since it is accepted that Mr Ward was not himself a volunteer.  He was a solicitor, independent of the Respondent, advising it.  The Tribunal dismissed the claim of indirect discrimination and this is taken no further.

 

27.          As to victimisation, (harassment), the Tribunal decided three issues, two of them against the Claimant which are taken no further.  On the third, the Tribunal found as follows:

 

“54.   The third complaint is in relation to the redundancy situation that purportedly arose in October 2008.  It was alleged that the Institute had decided to make Mrs Dunn redundant because of her complaint.  In this regard we were struck by the abrupt about face on the part of the Institute at its board meeting on [23 September 2008: date corrected] and indeed the apparently self contradictory passages within the relevant notes.

55.  There had been an expression of disappointment at the July board meeting at the short rental period that might be secured for a particular northern office.  There is, however, no suggestion that the project will be abandoned altogether at that stage.

56.  There appeared to be no further relevant references to the issue until the board meeting on 23 September.  On the one hand, a consultant was to be appointed to advise on the position in relation to the northern office but in the separate minute it is clear that the decision has already been taken.  That is a striking contradiction.  We remind ourselves that the letter from Mrs Dunn’s solicitor alleging discrimination was sent the week before.

57.  In those circumstances we considered the claimant had proved facts from which we could conclude that an act of victimisation had taken place.  We rejected the explanation given on behalf of the Institute that the decision was the consequence of a reasoned discussion that did not take account of Mrs Dunn’s complaint.

58.  ...  We concluded that she had been unlawfully victimised in this regard.”

 

28.          In the course of argument we were referred to documents which, it is contended, make the connection between the Claimant and her husband - explicitly that they are married.  These include the following, in statements from Mr Morris, the Chief Executive [emphasis added].

 

“Ron Dunn has relentlessly harassed me in respect of the staff structure and I believe that the intention is to take control of all members of staff whereby he and his wife (Angela Dunn) can limit their workloads, in order that Ron can pursue his interest […].

 

It should be noted that The Dunn’s and Ian Hussein’s very close friendship […]

 

During a telephone conversation with Ron Dunn earlier this year a great deal of background noise was present.  I asked Ron where he was, to which he replied that he was at his brother‑in‑law’s business as there was trouble with one of the directors […].  I noted the deteriorating attitude of Ron and Angela Dunn […].

 

I had been struggling with thoughts concerning the reasons for the Dunn’s constant attacks […].”

 

The panel will note that Part 1 of my submission relates only to Angela Dunn’s initial grievances whilst Part 2 gives documented evidence of the private, commercial activities of Ron Dunn.  Angela Dunn must be fully aware of these activities as Ron Dunn is her husband and he is co‑director of two companies with Angela Dunn’s brother.  I am of the opinion that the grievance from Ron Dunn was submitted to support Angela Dunn’s grievance with the intent of driving me from my job and thereby protecting their commercial activities that have been concealed from the board and are contrary to Ron Dunn’s contract of employment.”

 

Domestic law

29.          The single point of construction in this case is whether the Sex Discrimination Act applies to protect the Claimant, whose complaint was that she was discriminated against on the ground of being married to Mr Dunn.  The simple fact of being married is not an issue.  The Claimant does not suggest that the Respondent discriminated against her just because she is married.  Is that a simple solution to the case? As a matter of construction that is the orthodox view to be taken of the Act as first legislated.

 

30.          We are frequently asked our marital status on official documents, and socially.  As a matter of strict construction you are either married or in the no man’s land of the unmarried, or not married, as the original formulation of the Act shows.  This may seem pejorative.  Marital status on its own means holding the legal relationship. The law just does not recognise the many forms of close relationship below marriage. A person who is not married is an “unperson”, unmarried.  Literally, such a person has no marital status.  A common law wife is not recognised. A divorced person no longer has marital status, if not by choice then certainly by law. A heterosexual couple in a partnership are not married. A person who is separated is married, but the subtlety of that fact eludes discrimination law. Same-sex partnership is included within the 2005 protection but for a different reason. We have not been addressed on whether a widow has marital status. As carried forward from the original section 3(1)(a) to 3(1)(b) the juxtaposition and statutory comparison is between a married person and an unmarried person, and nobody else.

 

31.          Marital status disappeared with unmarried persons in the 2005 amendment. Protection is given now to a person who fulfils the condition that she is married. As a matter of construction of section 3 as amended, only a currently married person has the condition of being a married person. That carries on the sense of the 1975 form: marital status applied only to a married person.

 

32.          Arguably Mrs Dunn’s marital status is “married to Mr Dunn”, but for the purposes of the amended statute she is simply a married person and so fulfils the condition.

 

33.          However, a broader view is taken under the 1976 Directive, since it covers “marital status or family status”.  Clearly, family status is sufficient to cover discrimination against a married person because she is married to a particular person.  She has the status of being in the family of another person.  On this footing, Mrs Dunn would be protected against discrimination because she is in Mr Dunn’s family, or her brother’s family (also relevant to the Respondent’s acts). 

 

34.          Marital status is much narrower. It is not immediately clear why Parliament needed to protect from discrimination the body of married persons who make up, it must be thought, a majority of the adult population of the UK. Within the memory of the members of this Tribunal, such protection was needed, for it was not uncommon for employers to dismiss women workers when they got married (for example, airline stewardesses of the national carrier, civil servants, diplomats and bank employees).  We are aware of no example of a man suffering detriment (in the legal sense) for being married. One wonders why the protection was extended to men except simply as a matter of formal equality; and not extended to women who were not married to the fathers of children by whom they were pregnant, as a reader of any Dickens novel or a viewer of Downton Abbey (a popular ITV1 costume drama of the 1900’s) would understand.  So, does the law in the UK cover discrimination against a person because of some characteristic of the man she is married to, or of some specific connection between the act complained of and him?

 

35.          There is some support for this view by decisions of the Employment Tribunal. For example Ganhao v ICM Support Services Ltd ET/2600651/05.  The Claimant’s husband resigned, and the Claimant’s job was given to somebody else.  She succeeded in a claim of marital discrimination because the Respondent treated her as her husband’s appendage.  In Watkins v Jubilee Club & Institute ET/5712/82, the steward of a club and his wife, the barmaid, were both dismissed as a result of stock deficiency.  The Claimant had nothing to do with the stock, and the Tribunal decided that she was dismissed simply because she was married, and that a single barmaid would not have been dismissed in the circumstances.  An example of the antediluvian attitude to married women is given in Bick v Royal West of England Res idential School for the Deaf [1976] IRLR 326, where a woman who announced her intention of getting married was dismissed.  The Tribunal acknowledged that it was the intention of the statute to penalise employers who dismissed girls when they are about to get married.  The Tribunal held that the discrimination against her took place on a day when she was not married but had simply announced her intention to be married. The protection otherwise afforded to married persons did not apply to her. 

 

36.          In Turner v Stephen Turner ET/2401702/04, a woman dismissed when her forthcoming marriage to her employer’s son was announced was discriminated against contrary to the protection of married persons.  The case was decided under articles 8 and 12 ECHR.  The Tribunal construed section 3 of the Act as applying to persons not only married but about to marry.

 

37.          The case particularly relevant to the submissions of the parties is Graham.  The Claimant was an Inspector in the Bedfordshire Police force, and was married to a Chief Superintendant in the same force.  She applied for and was given a job in the division commanded by her husband.  The Chief Constable rescinded her appointment on grounds which included the fact that:

 

“As the spouse of a serving officer [she] could not work in the same division because she would not be a competent and compellable witness against her spouse in any criminal proceedings.”

 

38.          An issue arose therefore under section 3 of the 1975 Act.  The Claimant succeeded in her case of marital discrimination. The EAT, Douglas Brown J and members, dismissed the Respondent’s appeal.  It is clear to us that the holding of the EAT was on the basis that the Claimant was to be a serving officer in the force commanded by her husband.  Her marriage to any officer is irrelevant. It becomes relevant only when her husband is a divisional commander. Issues of competence and compellability arise in relation to any testimony she may give in a case involving her husband.  To use the language of the EAT, that reason is “marriage-specific”. More so, it is specific to that marriage. Had her husband not been the commander of the division, the Respondent’s decision to block her assignment to that division would not have been made.  In our judgment Graham is authority for the proposition that a married person is protected by section 3 by reason of her status of being married to her husband.

 

39.          The EAT in that case considered the Judgment of the High Court in Glanvill v Secretary of State for Social Services The Times 29 July 1978.  This was a judicial review against the Secretary of State’s regulations refusing to reimburse a general practitioner for wages paid to his wife in the conduct of the practice.  Talbot J decided that the Secretary of State’s decision was arbitrary.  He also considered that the Secretary of State’s decision might be contrary to the 1975 Act on the ground that Mrs Glanvill was a woman and married to Dr Glanvill.  But he refused to grant judicial review since section 3 applied to protect married persons on the ground that they were married and not on the ground that Mrs Glanvill was married to Dr Glanvill.  The Secretary of State appealed successfully against the irrationality finding: The Times 20 November 1979.  The Court of Appeal did not rule on the marital discrimination point. 

 

40.          At the highest, therefore, there is a Judgment of the High Court in favour of the Respondent, and of the EAT in favour of the Claimant, in our case.  They are separated by 23 years, a long time in the field of discrimination law, and a further 10 years have passed.  As a court of co-ordinate jurisdiction we are bound by neither, but we would customarily follow a Judgment of the EAT made after full consideration of the issues unless we are sure it is wrong.  The EAT considered Glanvill but distinguished it. It does not seem to have been referred to the Court of Appeal’s judgment but the point was not taken in that court. With due respect to the EAT we cannot see how the cases are distinguishable and with equal respect to Talbot J, we prefer to follow the Judgment of the three-person specialist EAT in Graham. Since this is a matter of domestic law, while not binding upon us, we not only consider that Graham cannot be said to be wrong but that it is indeed correct and applicable here. 

 

 

41.          We are content to follow the precedent set by Graham and to hold that a person who is married or who is in a civil partnership is protected against discrimination on the ground of that relationship and on the ground of their relationship to the other partner.  Any less favourable treatment which is marriage-specific is unlawful. We do not find it necessary to decide whether that extends to persons in any other kind of relationship than current marriage or civil partnership. It is sufficient to note that throughout family, property, immigration and criminal law, a married person is treated differently. In almost every case this is not an abstract support for all married women but is support for and derives from the fixed legal relationship she has entered into (and cannot be forced into). It is unique. One has only to look at the constant references in Jones v Kernott [2011] UKSC 53 to “married couple” and “unmarried couple” to recognise that the law focuses on the one particular marriage.

 

42.          In this case there can be no doubt as to the linkage in the Respondent’s conduct between the Claimant and her husband.  The extracts we have given from the statements of Mr Morris make that plain.  The Claimant is expressly linked to her husband, and he to his brother‑in‑law (her brother).  It is clear that the Respondent’s officers treated the Claimant the way they did, adversely, because of her relationship to Mr Dunn.  She is treated as an adjunct to his family.  There would be no reason to raise in her grievance proceedings matters relating to him unless they were married (or, it might be said, unless she were in some kind of close relationship with him, but that is not the language used).

 

43.          We therefore hold that the construction adopted by the Employment Tribunal was incorrect.  Having cited Graham it did not follow through the analysis that is the only one that emerges from the Judgment, as we have set out above.  To raise the comparison of Mr and Mrs Dunn living together without being married is in our judgment to go only part of the way in the section 5 comparison.  At least it recognises this is not a general issue about people’s status but is to do with the specific relationship between these two.

 

44.          Since this is a matter of domestic law we need go no further but we have heard argument on the Directive and the Convention so we will offer a view.

 

 

 

Invoking the Directive

45.          We have not been assisted by references to associative discrimination as defined in Coleman v Attridge Law and Anor [2008] IRLR 722 and EBR Attridge Law LLP and Anor v Coleman (2) [2010] IRLR 10.  In so far as they might be thought to assist, they indicate that it is unlawful to discriminate against someone because of that person’s association with a person who is protected by one of the characteristics of anti-discrimination law.  In our case, however, it would be straining the purpose of construction of a statute to say that the Claimant was discriminated against because of her association with another married person Mr Dunn who is protected.

 

46.          Underhill P and members made clear that the touchstone for purposive interpretation of a domestic statute is where it is possible to give it a meaning consistent with a Directive the court should do so. We have construed section 3 without recourse to the Directive. Insofar as the Directive speaks of a person’s marital status, we hold it is the same as being a married person. No words need be interpolated into section 3.

 

47.          Insofar as reliance is placed on “family status”, this is potentially much wider but it does as a minimum cover the family status of marriage. Mrs Dunn herself would get no more out of this part of the Directive, except possibly to complain of the Respondent’s reference to Mr Dunn’s business relations with his brother-in-law, her brother. She is right that family status is not transposed into section 3 but statutory transposition, or judicial interpolation, would not bring her within any greater protection. She still relies on the specific family connection to Mr Dunn.

 

48.          On the other hand, as Underhill P says, to interpolate family status into the section can only be done if it “goes with the grain” of the 1975 Act, that is it reflects Parliament’s purpose and the statute’s general principles. We cannot go that far. The 1975 Act and its amendments are specific as to their coverage: men, women, sexual orientation, civil partnership, marriage. Neither in 1975 nor on the occasions presented by the 2000 Framework Directive and the amendments in 2005, did Parliament add family status.  It is not even in the Equality Act 2010. Put simply, despite windows of opportunity, or it may be said obligation, for 35 years Parliament has legislated for marital status and eschewed family status. After the Recast Directive, it looks as though the EU expressly protects neither. Protecting family status does not go with the grain or the principle of the 1975 Act.

 

49.          To give the Directive its full purpose would be to bestow upon Mrs Dunn the protection of family status; that is, being in the family of Mr Dunn and being discriminated against on that ground.  But we cannot strain the amended Act to that extent. When first enacted, section 3 corresponded precisely to the Directive, if our interpretation of marital status is correct. Only married people were protected under both the Directive and section 3. The drafters of the Directive felt it necessary to extend protection to family status. Family status includes marital status; but not vice versa, hence the need to include it in the Directive.

 

50.          Parliament decided to confine the wide family status protection to those whose family status was marital, much narrower. It did so in 1975 and again in 2005. If this were to be decided on the basis of purposive construction of section 3, the conclusion would be the same.  We cannot construe the words “having the condition of a person who is married” as “having any family status”.

 

51.          A further problem arises. We are in 2011 being asked to discharge a current duty of purposive interpretation, to add words from a repealed Directive to give rights for acts committed before its repeal. We find it difficult to see how it is the court’s duty to do so when the will of the EU, as found in the Recast Directive, is that the words should not form part of its legislative canon. The 1976 Directive was repealed after the events in this case, but we would not be minded to reject the argument on that basis alone, and have approached section 3 and its amendment as both being enacted at a time when the 1976 Directive was in force.

 

Convention rights

52.          Mr Millett also argues for the Claimant’s Convention rights. The Employment Tribunal was under a duty to consider whether its interpretation of section 3 violated her rights under Art 12. By Art 14 she must suffer no discrimination in the exercise of her Convention rights on the ground of her “other status” which is plainly marital and family status. In our judgment she is entitled to say her right to marry Mr Dunn (in the past) ought not to affect the way her employer treated her in her grievances and her dismissal. The principles for imposing the duty of interpretation of the Convention and unfair dismissal law are set out by Mummery LJ in X v Y [2004] IRLR 625. The duty in the Human Rights Act 1998 section 3 would apply also to section 3 of the Sex Discrimination Act 1975 as amended. In fairness the point was not raised before the Employment Tribunal and we do not have its key findings on whether Article 12 was engaged. More important is Art 8.1 for justification under Art 8.2 might have been raised. It was not however raised before us and now that the Convention is in issue we must decide it ourselves if necessary for our judgment.

 

53.          We would hold that Art 8 is engaged here. There is no reason for the Respondent’s attitude to Mr Dunn’s involvement to affect adversely the Claimant’s treatment at work.  Art 12 is probably only subsidiary. We consider the Employment Tribunal must decide the Convention challenge, applying section 3 so as to give effect to Art 8, 12 and 14. If it were our duty to so decide the point, and it were necessary for the judgment, we would uphold the Claimant’s submission.

 

Conclusions

54.          We turn to the specific findings.  In respect of paragraph 46.4 above, it is plain that the Tribunal got the wrong end of the stick about Mr Ward.  The Respondent cannot shelter behind the poor advice of Mr Ward, and it did not help that the Tribunal confused his status.  He was a professional solicitor giving advice on that basis, and not a volunteer.  In the light of the Tribunal’s misdirection we consider that the Tribunal’s finding that the failure to call witnesses to the Claimant’s grievance meeting amounted to a difference between the Claimant and Mr Dunn, and it could not be attributed to what the Tribunal described as the “confused and confusing approach” relating to the advice of Mr Ward.  This is not an explanation, and in our judgment the Tribunal was wrong not to accept the Claimant’s case that she had passed stage 1 of the burden of proof in Igen v Wong [2005] IRLR 258; if she did, the Tribunal was wrong to accept the explanation that there was “confused and confusing” material from Mr Ward.

 

55.          As to paragraph 46.10, this relates to evidence produced by Mr Morris in the Claimant’s appeal that the Claimant did not see.  As it says, if the Tribunal had accepted the Claimant’s construction of section 3, it would have found her claim “justifiable”.

 

56.          Both of these points, which are the only points live on the appeal, must go back to the Employment Tribunal for it to decide.  It has already decided the Claimant was unfairly dismissed, and it must now decide in relation to paragraphs 46.4 and 46.10 whether she was unlawfully discriminated against on the construction of the Sex Discrimination Act that we have given above, applying Art 8, 12 and 14 ECHR and should then proceed to determine the remedy.

 

 

Victimisation

57.          Mr Northall contends the Employment Tribunal erred in its finding on victimisation. We hold the Employment Tribunal directed itself correctly on the substance of the tort. Its findings in paras 54-58 on the chronology of the acts of the Claimant and of the Respondent are, as it says, striking. The Employment Tribunal was entitled to find that the Respondent turned about, and to draw the inference for that as being connected to the Claimant’s complaint. These are all fact-sensitive matters for the Employment Tribunal which an appellate court cannot interfere with, given the correct self-direction. We accept in full Mr Millett’s submission in writing on this.  The cross-appeal is dismissed.