Legal protection for marriage and civil partnership in an employment context was first introduced by the Employment (Sex Discrimination Act) 2000. However, this has since been replaced by designation of “marriage and civil partnership” as a protected characteristic under the Equality Act 2017 (the “Act”).
Protection for marriage and civil partnership under the Act only extends to those in an “active”, actual, marriage or civil partnership and therefore does not extend to individuals living together as a couple but who are not married, those engaged to be married, a couple who have divorced or had their civil partnership dissolved, a widow or widower, or those who are single.
Note also that “marriage” now includes same-sex marriages since the implementation of the Marriage and Civil Partnership (Amendment) Act 2016, which came into force on 22 July 2016.
Unlike the other protected characteristics, discrimination by association or perception does not apply to marriage and civil partnership. Equally, a person who is subject to harassment, ie experiences unwanted behaviour related to their marriage or civil partnership is not specifically protected, although they may be able show that the unwanted behaviour is related to their sex or sexual orientation.
Types of discrimination relating to marriage and civil partnership
- Direct discrimination – can occur when a person is treated less favourably because they are married or in a civil partnership; it does not extend to any discrimination suffered because of who they are married to or in civil partnership with (see Ellis v Bacon and another below). An example of direct discrimination is a female employee who works night shifts but is dismissed when she gets married because her employer thinks married women should be at home in the evening.
- Indirect discrimination – occurs when a working practice, policy or rule is applied equally to all employees but puts someone who is married or in a civil partnership at a particular disadvantage compared to employees who are not married or in a civil partnership where such treatment cannot be objectively justified. To establish justification in an indirect discrimination claim, an employer will need to show that there is a legitimate aim (ie a real business need) and that the practice, policy or rule is proportionate (ie reasonably necessary) to achieve that aim.
- Victimisation – occurs when someone is treated less favourably as a result of making or being involved with a discrimination complaint which concerns the protected characteristic of marriage and civil partnership. There is no protection if a person makes or gives evidence which they know to be false, but a person who complains mistakenly albeit in good faith about treatment they perceive to be based on marriage or civil partnership status is protected. Common examples include an employee being disciplined after bringing a tribunal claim against their employer, making an informal complaint to management regarding unlawful discrimination, or supporting a colleague in such complaints.
How have tribunals interpreted and applied the legal protections for marriage and civil partnership?
In comparison to some of the more often argued protected characteristics, there is very little recent case law reported in this area. However, the following illustrations are helpful to put the legal protections in context:
- A woman was married to the chief executive of the company where she worked as a corporate marketing director. She was subsequently dismissed on the grounds that her appointment had breached an instruction that no member of the chief executive’s family should be employed by the company in a professional capacity. The Employment Appeal Tribunal held that the reason for the dismissal, whilst linked to the fact the employee was married, had more to do with the identity of the person she was married to, ie the closeness of the relationship led to the dismissal, not the fact the employee was married (Hawkins v Atex Group Ltd and others).
- An employee, who was a director and shareholder of the company, had been treated poorly by her employer during and after her acrimonious divorce from a majority shareholder of the business. The Employment Appeal Tribunal clarified that the question to ask when considering a case of marriage or civil partnership discrimination in those circumstances was whether the less favourable treatment was because she was married, or because she was married to the majority shareholder. The Employment Appeal Tribunal found that the poor treatment was because the managing director of the business was ‘siding’ with the majority shareholder, and so the less favourable treatment was related to the individual she was (or had been) married to, not her marital status in itself (Ellis v Bacon and another).
All of which suggests that demonstrating the relevant “causal link” between the treatment and the protected characteristic may be challenging in practice. There may, however, be other claims and arguments open to an employee in the circumstances separate to asserting discrimination on the basis of marriage and civil partnership.
Vicarious liability
An employer can be held vicariously liable for the discriminatory acts carried out by its employees in the course of employment, irrespective of whether the employer has knowledge that the acts are taking or have taken place. This extends to acts committed outside the workplace and outside working hours where the event is related to the individual’s employment or seen as an extension of their employment duties, ie a work-organised social event, conference, or client lunch. An employer may have a defence to such actions where it can show it has taken all reasonable steps to prevent its employees from carrying out unlawful acts. This may include showing that appropriate training has been provided, having well-drafted equality and diversity policies, and producing evidence to demonstrate a “zero tolerance” attitude towards discrimination.
Employees can also be held personally liable for their unlawful discriminatory acts together with their employer.
Can it ever be objectively justified?
There are certain circumstances in which an employer may have a defence to a claim of marriage and civil partnership discrimination. For instance, where the employment is for the purpose of an organised religion, an employer can require the employee not to be married or in a civil partnership – or not to be married or in a civil partnership with someone of the same sex – in order to comply with the doctrines of the religion and avoid conflicting with someone who holds strong religious convictions.
However, the requirement must be crucial to the post and must not be a sham or pretext. Guidance suggests that it is intended to cover a very narrow range of employed ministers of religion and a small number of lay posts, ie the requirement that a Catholic priest be an unmarried man. The requirement for an employee to be unmarried wouldn’t apply, for example, to a church accountant.
Conclusion
As might be concluded from the above, claims for discrimination based on marriage and civil partnership are few and far between. The narrow scope of the protection means it is unlikely the tribunal will be inundated with claims related to marriage and civil partnership anytime soon. Nevertheless, unlawful discrimination could be argued where an employment decision is contentious. Employers need to demonstrate their understanding of the principles relating to marriage and civil partnership as a protected characteristic and show how their policies and training address the risks (or possibility) that this may occur.
The next article in our equality series will consider the protected characteristic of gender reassignment.
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The guidance in this note is for information purposes only and is not intended to be exhaustive. It is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Cains only advises on the laws of the Isle of Man and accepts no responsibility for any errors, omissions or misleading statements or for any loss which may arise from reliance on the information in this note.
