Company director fired after divorcing colleague was victim of marital discrimination, tribunal finds

23 Jun 2020 By Maggie Baska

Experts highlight the value of ‘relationships at work’ policies as judge rules third manager was ‘complicit’ with claimant’s ex-husband

A woman who was fired from her role as company director after her divorce from another employee was the victim of marital discrimination, a tribunal has ruled. 

The Norwich tribunal found Ms K Bacon was subjected to marital discrimination and victimisation by Graham Ellis, managing director of Advanced Fire Solutions, after he dismissed her in 2018 for an alleged IT breach. The tribunal unanimously ruled the dismissal was for discriminatory reasons based on Bacon ending her relationship with another director. 

The tribunal said Ellis had “no other explanation” for subjecting Bacon to less favourable treatment because of her marital status “other than he was siding with Mr Bacon”, her ex-husband, because “his future lied within the company rather than that with Mrs Bacon.”

The claims against Advanced Fire Solutions are stayed pending the company’s administration and consent being obtained by the solicitors to continue with the action. 

Ms Bacon joined Advanced Fire Solutions in 2005 as a bookkeeper before advancing to become a director in 2008. She married Mr J Bacon later that year. Mr Bacon joined the company in October 2012, becoming a director in 2013.

In August 2017, Ms Bacon informed Mr Bacon she wished to separate and that she wanted to continue in her role at the company after their divorce. The tribunal heard Ms Bacon took time off during this month to “focus on her marriage and children”. She returned before the end of the month; however, Mr Bacon insisted she continued to take time out of the business to “save the marriage”. During this time, the tribunal heard staff were informed that Ms Bacon was off sick for the time being and would return when fully recovered.

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However, Ellis, without informing Ms Bacon, advised the company accountants on 1 September that Ms Bacon would no longer be working for Advanced Fire Solutions and to remove her access to their company accounting software. 

On 7 September, Mr Bacon informed Ms Bacon at a counselling session that she could come back to work “when she was ready”. But on 13 September she picked up a messaging from the company banking manager that she had been removed as a signatory on the account by Mr Bacon and Ellis. On 16 October, she was duly reinstated as a director. 

However, on 1 November, Ms Bacon informed her husband that she wanted to proceed with the divorce. The next day her position was advertised and she was removed from the position of director, and on 9 November her name was taken off the list at Companies House without her permission. 

On 18 January 2018, Ms Bacon received a letter from an HR consultant acting on behalf of Advanced Fire Solutions that notified her that she had been suspended on full pay pending an investigation into the misuse of company IT, email systems and confidential and financial information. There were no specific allegations against her in the letter, but she was asked to return personal IT equipment including an iPhone, iPad, MacBook Pro, company files and documentation. 

During this time, the tribunal heard that Mr Bacon and Ellis had lodged a series of reports to the police against Ms Bacon. On 2 October 2017, Mr Bacon accused a man of allegedly “having an affair with his wife” and also of accessing Advanced Fire Solutions’ IT network. However, the police took no further action. 

In April 2018, Bacon and Ellis requested the police take further action by investigating an alleged cyber breach, unauthorised access to the office email and sending of company information to Ms Bacon’s personal email. The police again indicated that no further action was to be taken. 

In March 2018, Ms Bacon raised a grievance with the company in relation to harassment and victimisation in light of her suspension. But the tribunal heard the grievance remained unresolved. 

Ms Bacon received a letter on 29 June signed by Ellis, which informed her that she was dismissed from her role with Advanced Fire Solutions. The letter said the reason for her dismissal was the company “had no alternative” to conclude she was involved with alleged gross misconduct “based on the facts and evidence we have in our possession along with your [Ms Bacon’s] refusal to cooperate in any way with the investigation”. 

She subsequently appealed against her dismissal on 3 July, but her appeal was dismissed by Ellis on 9 July via another letter. 

Ms Bacon brought claims of unfair dismissal, failure to pay notice and holiday pay and discrimination based on sex, marriage and civil partnership against Advanced Fire Solutions and Ellis to the employment tribunal. 

The tribunal stayed the claims against Advanced Fire Solutions pending its administration and consent by solicitors to continue with tribunal proceedings. However, the tribunal did find Ellis subjected Ms Bacon to marital discrimination and victimisation.

In his judgment, employment judge Robin Postle said it was not difficult for the tribunal to unanimously conclude that Ellis “distanced himself” from Ms Bacon following her separation from her husband. He added Ellis was “complicit” with Mr Bacon in urging the police to investigate Ms Bacon, and Ellis believed everything he was told by Mr Bacon “without question”. 

“It is clear that Mr Ellis allowed Mr Bacon to use company funds to pay his solicitors’ divorce matrimonial costs; those were not repaid and that opportunity was not afforded to the claimant,” Postle said. “Clearly less favourable treatment and the reason for that treatment was the fact that Mrs Bacon was married to Mr Bacon and effectively Mr Bacon was pulling Mr Ellis’s strings.”

The tribunal dismissed a claim of direct discrimination against Ellis.

Joanne Moseley, senior associate at Irwin Mitchell, explained there had been several reported decisions involving marital status discrimination, including at the appeal level, since the legislation was first introduced under the Sex Discrimination Act 1975 to counteract the practice of employers dismissing women when they got married, which she said was "not uncommon at the time". 

Moseley said marital discrimination cases remained "unusual" today despite the fact many people work in the same organisation as their partner – which could be in part because the Act only protects those in marriages and civil partnerships and not other relationships.

Moseley added that many larger organisations will have ‘relationships at work’ policies to make sure members of staff who are in a relationship behave in an appropriate and professional manner both during and after the relationship ends. "This may require one party to move to another department or to be line managed by someone else at the outset to avoid difficulties further down the line," she said. 

No date has been set for an award settlement. Neither Advanced Fire Solutions, Mr Ellis nor Ms Bacon could be reached for comment.

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