Discriminating Against Someone Because of Marriage or Civil Partnership

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Employees who can show they have experienced marriage or civil partnership discrimination at work have the option to pursue a claim and compensation from their employer.

For employers, it can be difficult to fully understand both their obligations under the law and how these apply to the workplace. To support employers, ACAS guidance provides pointers on ways that such discrimination may inadvertently become part of a workplace or working relationship. It also explains ways in which employers can identify and deal with it, as well as taking steps to ensure that it does not reoccur.

 

What is marriage & civil partnership discrimination at work?

The Equality Act 2010 lists marital status as a protected characteristic. This means it is unlawful to discriminate against someone at work based on the being married or in civil partnership.

 

Types of marriage & civil partnership discrimination

Discrimination against marriage and civil partnership falls into three categories: direct discrimination, indirect discrimination and victimisation.

 

Direct discrimination

Direct discrimination would occur in situations where employees are treated worse than other workers in your workplace because they are married or in a civil partnership.

 

Indirect Discrimination

Indirect discrimination would be seen to occur if an employer has a policy or way of working that puts people who are married or in a civil partnership at a disadvantage. Such a policy is only permitted if your employer is able to show that there is a good reason for it and if the implementation of the policy is appropriate and necessary.

Another example of indirect discrimination may be where a company tradition is to attend a single’s resort every year; this might be inappropriate for a person who is married and they may not attend the resort, which would mean that they would miss out on this perk.

 

Victimisation

Victimisation is when an employee is treated badly as a result of having made a complaint of marriage or civil partnership related discrimination. Victimisation would also be held to occur if you are in support of an individual who has made a complaint of such discrimination.

It is not legally possible to be harassed for marriage and civil partnership status.

 

Workplace policy 

Employers need to make sure that they have drawn up, implemented and taken steps to enforce policies to stop discrimination. This could include equality and diversity policies, and more specifically, relationship at work policy in right of the case law on marriage & civil partnership discrimination, which we discuss below.

 

Examples of marriage & civil partnership discrimination in the workplace 

Employers should keep in mind that there are several areas where this kind of discrimination can occur, even where unintended.

 

Recruitment

If an employer decides not to employ someone because they are married or in a civil partnership, they would be liable to claims of direct discrimination in virtually all cases.

The wording of job advertisements, specifications and descriptions needs to be checked to ensure that any requirements are relevant to the job in hand. This can help to overcome any risk of discrimination. Involving more than one person in the process can avoid inadvertent bias.

During the interview process, it should be emphasised that questions which relate to the candidate’s personal life should be avoided if at all possible. Although the motive might be purely innocent, intended to gain a better idea of the candidate as an individual, there is a danger that any information gained could unconsciously influence the decision to hire – or not.

 

Pay, and terms and conditions of employment

When drafting or updating terms and conditions for staff, employers should take care that these do not exclude or disadvantage those who are married or in a civil partnership. Terms and conditions offered by employers should be generally the same, whether they apply to married employees and their spouses, those in same-sex marriages or those in civil partnerships. Such terms and conditions may include:

  • flexible working arrangements,
  • parental leave,
  • paternity leave,
  • shared parental leave,
  • adoption leave,
  • any gift from the employer or
  • extra days off when an employee marries or enters a civil partnership.

Because the Equality Act also gives protection from discrimination because of sexual orientation, this means that employers can’t discriminate against someone in a same-sex marriage as opposed to a heterosexual marriage.

If it is the case that members of staff are subject to different treatment, the employer will need to make sure that they have an objective justification in place. This will often take the form of a material factor that is unrelated to the protected characteristic; this could include skills, experience and qualifications.

 

Promotion

Discrimination on the grounds of marital status should not occur when promotion opportunities are being considered. Examples of this may include:

  • only accepting applications from people who are not married or not a civil partner;
  • discouraging an employee from applying on the grounds of their marital status;
  • not promoting the employee who is the best fit for the job because of a belief that their marital status would be an obstacle to their promotion;
  • having an unspoken rule which dictates that candidates for promotion beyond a certain level should not be married or have a civil partner.

 

Employers should ensure that, wherever, possible, they:

  • state in job advertisements that they are willing to consider flexible working arrangements;
  • encourage the design (or redesign) of roles so that they allow for flexible working – this could include part-time working or a job-share.

 

Training

If an employer does not provide training to an employee on the basis of their marital status, this will be discriminatory.

They should also bear in mind the needs of employees who are taking any kind of parental leave.

When announcing training opportunities, employers should make sure that all relevant employees are informed, whether they are in flexible working arrangements, part-time hours or full-time.

Dismissal

Employers who dismiss an employee because they are married or in a civil partnership will have broken the law.

Redundancy

An employer must not target employees in a redundancy process because it considers their flexibility is governed by their marital status.

Discrimination is more likely:

  • when the redundancy criteria are being drawn up, and
  • in the methods the employer uses to manage the redundancy process.

 

Marriage & civil partnership discrimination case law

In Bacon v Advanced Fire Solutions Ltd and Ellis, a woman who was fired from her role as company director after her divorce from another employee was found by the Employment Tribunal to be the victim of marital discrimination. Specifically, the tribunal found that a third manager was ‘complicit’ with the claimant’s ex-husband.

In this case, an employer of two married co-workers was discriminatory in choosing to dismiss an employee’s wife following their separation.

The employer, Mr Ellis, fired Ms Bacon for an alleged IT breach, reported her to the police for theft and withheld a £31,560 dividend. It was alleged that Mr Bacon had “pulled his strings” to exclude and finally dismiss Mrs Bacon, because Mr Bacon was supposedly suspicious that she was seeing another man. Mr Bacon then went on to use the company funds to pay for his divorce, with Mr Ellis’ consent.

The panel found:

“It is clear that the claimant was being subjected to less favourable treatment on the grounds of her marital status and Mr Ellis simply has no other explanation for that treatment other than he was siding with Mr Bacon who he no doubt felt was where his future lied within the company rather than that with Mrs Bacon. The reason for that treatment was clearly the claimant’s marital status to Mr Bacon.”

It was held to be clear Mrs Bacon was being subject to less favourable treatment on the grounds of her marital status; Mr Ellis had no other explanation for such treatment other than the fact he had taken to the side of her husband and was therefore held to have committed marital discrimination.

It was also held that Mr Ellis had vindictively demanded that Mrs Bacon return the iPads which were used by her family, as a direct retaliation for her having raised a grievance regarding the discrimination. This was a clear case of victimisation.

Interestingly, the Tribunal did find that Mrs Bacon was discriminated against because of her marriage to Mr Bacon. This somewhat goes against the previous precedent which was on the basis of marital status rather than who that marriage is to. Of course, by virtue of being married to Mr Bacon, she also has her marital status, so it is unclear whether the Tribunal intended to make any variations to the law here.

This case is of interest as people do seek to bring claims where they are (for example) not hired because of who their husband is, or where they are fired, because of who they are married to. This would be claims not based on marital status, but based off who they are married to.

Where employees are in a relationship or married, you always run the risk of a potential break up which the employer (especially in small companies) may become a casualty of. With this in mind, some companies have relationships at work policies, which cover the event of a split and make the companies’ objectivity clear, in advance of any issues occurring.

Where there is a divorce between employees, to avoid discrimination, an employer should:

  • Stay objective! Insofar as possible, the employer should avoid being involved in the issues and try not to take sides.
    Be as consistent as possible; what is said to one party, should be said to the other.
  • Consider giving employees more flexible working arrangements, perhaps to attend mediation, divorce proceedings, or just to avoid each other in the workplace.
  • Discourage office gossiping insofar as possible.
  • If the situation considerably deteriorates, consider whether to offer a settlement agreement and a negotiated exit to one party. Should Mr Ellis have given this option consideration back in 2017, he would likely have saved himself reputational damage and (probably) legal fees. Although it can be difficult to suggest one party lose both their marriage and their job, it may be a more amicable outcome in the long term.

 

Need assistance?

DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination, from guidance on how to minimise the legal risk of age discrimination and how to deal with specific complaints. Working closely with our specialists in HR, we can offer a full support service from staff training, through to developing an organisational policy to defending any claims that may arise. For help and advice, speak to our experts.

 

Marriage & civil partnership discrimination FAQs

What is marriage and civil partnership discrimination?

Marriage and civil partnership discrimination is when someone is traeted unfailry because they are married or in a civil partnership.

Is marriage and civil partnership a protected characteristic?

Yes, marriage and civil partnership are protected characteristics under the Equality Act 2010.

What does the Equality Act say about marriage and civil partnership?

The Equality Act says you cannot be discriminated against by reason of being married or in a civil partnership.

Last updated: 16 September 2022

 

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

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