Marriage is a protected characteristic under the Equality Act 2010 (the Act). This means that treating someone less favourably because they are married (or because they are having marital difficulties) may be unlawful discrimination.
The law and marriage
It is worth noting that the law acts in favour of marriage. Under the Act, it is not unlawful to treat someone more favourably because they are married, nor is it unlawful to treat someone less favourably because they are divorced or unmarried.
If the marriage of a person in church leadership breaks down, that person will have protection. They should therefore not be automatically removed from their post simply as a consequence of a breakdown in their marriage (whilst they remain married), but it may be lawful to remove them from their post for reasons connected to the breakdown.
A recent case
In a recent case before the Employment Appeal Tribunal, relating to the dismissal of a church leader, the court held that the working relationship had ended because of the church leader’s behaviour, which was in part a manifestation of his marriage difficulties. Was his dismissal therefore marriage discrimination?
It was held that even though the behaviour was connected to his marriage difficulties, it was still his behaviour that was the cause of the dismissal, rather than the fact he was married or the fact of the marriage breakdown itself. There was therefore no less favourable treatment because he was married, and no unlawful discrimination.
In this particular case, amongst other things, the pastor had unwisely spoken to others in the church about his own marital difficulties, such that he risked his wife becoming isolated and causing conflict for those in the church. He had preached on how a husband should act towards his wife within marriage, but there were concerns he was not conducting himself in line with the same standard.
The Court accepted that although these concerns were connected to treatment of his wife, the concern related to issues such as hypocrisy rather than marriage itself (or its breakdown), and there would be a similar concern for any church leader who, in his public behaviour towards others, did not practice what he preached.
The Court expressed the view that the claim would likely have succeeded had the employing church’s belief in the nature of marriage meant that an employee could not remain in post in the event of a marriage breakdown or difficulty. (And a similar principle would apply when recruiting to a post).
The church in this case was in a stronger position to argue that their concern was not the simple fact that there were marital difficulties, but behaviour arising from those difficulties. Its conduct toward the pastor showed it was trying to salvage the employment relationship – seeking to address the behaviour and issues arising from it.
Where the minister is an office holder rather than an employee, there may be strong argument that the law on marriage discrimination does not apply. See our article ‘Is your pastor an employee, office-holder, or both?‘ for further information.
Support from Edward Connor Solicitors
Edward Connor Solicitors specialises in employment and discrimination and we would welcome the opportunity to discuss any of the issues within this article with you.
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