Member Article

Marriage and civil partnership discrimination occurs when someone is treated unfairly or differently because of their marital status. We explore the causes, effects, and legal implications for employers of this form of discrimination in the workplace.

What is marriage and civil partnership discrimination?

Marriage and civil partnership together form one of nine protected characteristics under the Equality Act 2010, which means that people who are married or in a civil partnership have the right to be treated equally and fairly in the workplace. This applies to people of any sexual orientation, whether they are married to someone of the same or opposite sex, or in a civil partnership with someone of the same sex. However, single people and people in a relationship outside of marriage or civil partnership do not come within this protected characteristic. 

Discrimination based on marriage and civil partnership can take various forms, such as:

• denying someone a job, promotion, training, or pay rise because they are married or in a civil partnership;
• making assumptions or stereotypes about someone's abilities, preferences, or commitments based on their marriage or civil partnership;
• excluding someone from social or work-related activities because they are married or in a civil partnership;
• having practices or processes that disadvantage those who are married or in a civil partnership; or
• victimising someone because of they have made or intend to make a marriage or civil partnership discrimination claim.

Marriage and civil partnership is not, however, a protected characteristic for the purposes of harassment although a married person or a civil partner might be able to bring a harassment claim based on a different protected characteristic such as sex or sexual orientation. 

It is also worth noting that marriage and civil partnership discrimination may be permitted in certain limited circumstances, such as where there is an occupational requirement for an employee not to be married or a civil partner. 

Common issues faced by employers 

Employers should review their policies and practices to ensure that they do not discriminate against anyone who is married or in a civil partnership. For example, an employer who had an accommodation policy that only entitled married employees to family accommodation, at an additional cost, and not to single accommodation, even if they already owned a family home and did not need the family accommodation, discriminated against a married employee. 
Similarly, hotel owners who refused to allow a homosexual couple in a civil partnership to stay in a room with a double bed because they were not married in accordance with their guest policy, discriminated against them as the law provides people in a civil partnership should not be treated differently to those who are married. 

Employers should also be mindful of treating someone less favourably because of who they are married to. For example, a female inspector’s marriage discrimination claim was upheld where she was refused a job in the division commanded by her husband, a chief superintendent. The main reason she was rejected for the post was that as the spouse of a serving office it was believed she would not be a compellable witness against her spouse in any criminal proceedings. 

In addition, employers should avoid a policy imposing a blanket ban on personal relationships at work, as this could be indirectly discriminatory against married couples or civil partners. If such a policy was required, the employer would need to show that it was a proportionate means of achieving a legitimate aim to avoid potential claims of discrimination. 

Best practice for employers 

Employers can take various steps to create a culture of respect and inclusion where discrimination based on marriage and civil partnership is not tolerated.

• Developing and implementing a clear and comprehensive equality, diversity, and inclusion policy that covers all the protected characteristics, including marriage and civil partnership, and that sets out the expectations and responsibilities of everyone in the organisation.
• Providing regular and mandatory training and awareness-raising sessions for all staff, particularly managers and supervisors, on the Equality Act 2010, the protected characteristics, and the types and effects of discrimination, in particular the rights of employees who are married or in a civil partnership and how to recognise and avoid discriminating against them.
• Ensuring that recruitment, selection, appraisal, and reward processes are fair, transparent, and objective, and that they do not discriminate against anyone based on their marriage or civil partnership.
• Offering flexible working arrangements, such as part-time, job-sharing, or home-working, that may accommodate the needs and preferences of employees who are married or in a civil partnership.
• Encouraging and supporting employees who are married or in a civil partnership to join employee networks, groups, or forums, where they can share their experiences, concerns, and suggestions, and where they can receive advice and guidance from peers, allies or mentors.
• Addressing any issues or grievances raised promptly, sensitively, fairly and appropriately, e.g. through a fair and transparent grievance and disciplinary process.
• Regularly monitoring and reviewing the impact and effectiveness of the policies and practices relating to the equality and diversity of the workforce, and taking corrective actions if any issues or gaps are identified.

What are the risks?

Employers have a legal duty to prevent discrimination in the workplace. If employers do not have robust and effective diversity and inclusion policies in place they may face serious consequences, including:

• legal claims, litigation and complaints from employees who have been discriminated against, which can result in costly and damaging litigation, compensation, and reputational damage;
• low morale, motivation, and productivity among employees who feel that they are not valued or respected, or who witness or experience discrimination in the workplace;
• high turnover, absenteeism, and stress among employees who are unhappy or dissatisfied with their work environment, or who face difficulties in balancing their work and personal lives; or
• loss of talent, diversity, and innovation, as employees who are married or in a civil partnership may leave the organisation or seek opportunities elsewhere, or may not perform to their full potential or contribute their ideas and skills.

By following our best practice tips above and being aware of the potential discrimination issues that may arise in relation to the protected characteristic of marriage and civil partnership, employers can reduce the risk of facing costly, damaging and time-consuming discrimination claims and enhance their reputation as an inclusive and responsible employer.

 

Link to article