In our first UK Employment Law update of 2023, our team highlight key takeaways from the Employment Appeal Tribunal's (the "EAT") determination in the Ellis v Bacon marital status discrimination case and explore the scope of the test for marital status discrimination as a result. We also examine the High Court's recent interim decision which provides interesting insight into the privacy of WhatsApp messages and a recent case on dismissal for disability. Next, we set out the new Draft Code of Practice on Dismissal and Re-engagement. Finally, we look ahead and map out potential employment-related legislative changes we may see in 2023.

1. Ellis v (1) Bacon, (2) Advanced Fire Solutions Ltd (In Administration) [2022] EAT 188: In this case, the EAT confirmed that the test for discrimination on the grounds of marital status is to be narrowly construed. It was held that the reason for less favourable treatment had to be the marital status and not:

(a) the identity of the spouse; or
(b) the proximity of the relationship.

The facts:

• Ms Bacon initially joined Advanced Fire Solutions Ltd ("AFS") in 2005 as a bookkeeper and became a director and shareholder in 2008. In the same year, Ms Bacon married Mr Bacon. Mr Bacon was also a director of AFS.
• In early 2017, Mr Ellis became the managing director of AFS. Later that year Mr and Ms Bacon separated, and Ms Bacon filed for divorce. The divorce was acrimonious.
• False allegations were made against Ms Bacon in 2018. Ms Bacon was accused...

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