MARRIAGE AND CIVIL PARTNERSHIP DISCRIMINATION

A guide on marriage and civil partnership discrimination from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent advice on discrimination, please contact us as soon as possible.

What is unlawful discrimination?

The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).

The EqA protects employees, workers (ie engaged under a contract personally to execute work or labour) and contractors (ie whose labour is supplied by an employer to another person). These rights apply whatever the length of service and whatever hours worked.

Legal protection against unlawful discrimination applies even if some of the work is to be done outside Great Britain but will not apply if the work is to be done wholly outside Great Britain. It applies before, during and after employment.

For the purposes of this web page we use the term employee.

What is marriage and civil partnership discrimination?

Marriage covers any formal union which is legally recognised in the UK as a marriage, which includes marriage between a man and a woman and between a same-sex couple.

A civil partnership is only between same-sex partners under the Civil Partnership Act 2004.

Single people and people in relationships outside of marriage or civil partnership (whether or not they are cohabiting) do not have this characteristic. People who share the protected characteristic of marriage and civil partnership are those people who are married or are civil partners.

What types of marriage and civil partnership discrimination are there?

Marriage and civil partnership discrimination can be:

What is direct marriage and civil partnership discrimination?

An employer (or other person) discriminates against an employee under section 13 of the EqA, if:

because of an employee's marriage or civil partnership
the employer (or other person) treats the employee less favourably than the employer (or other person) treats or would treat others.

Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged.

An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.

In claiming direct marriage and civil partnership discrimination, an employee will need to prove that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.

Example of direct marriage and civil partnership discrimination

an employer’s accommodation policy requires that married couples nominate one of them as head of household. The wife nominated herself which resulted in her being entitled only to family accommodation, at an additional cost, and not to single accommodation as before. She already owned a family home with her husband. She simply wanted to be provided with the single accommodation that she would have been entitled to, had he not got married. The employer’s assumption that the married couple must operate with one partner dependent on the other for the provision of a family home was inherently directly discriminatory.

Direct marriage and civil partnership discrimination will also occur if an employer instructs, causes or induces another to commit discrimination. It will also commit an infringement if it causes detriment to an employee because eg they refuse to obey an instruction to act in a way that would disadvantage employees because they are married or in a civil partnership.

What is indirect marriage and civil partnership discrimination?

Indirect marriage and civil partnership discrimination occurs under section 19 of the EqA where:

an employer applies to an employee a provision, criterion or practice (PCP)
the employee has a protected characteristic
the employer applies (or would apply) that PCP to persons who do not have that protected characteristic
the PCP puts or would put the employee at a particular disadvantage when compared to other persons without that protected characteristic
the employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

In other words, indirect marriage and civil partnership discrimination occurs where the employee’s employment is subject to an unjustified condition which because of their gender reassignment, the employee finds it more difficult to meet.

In determining whether there has been a detriment, it will be necessary to establish a pool of employees for comparison on a like-for-like basis of those that have and have not been affected by the PCP.

Example of indirect marriage and civil partnership discrimination

a requirement to provide benefits to husbands and wives is likely to disadvantage those employees in a civil partnership and may not be justified.

The Equality Act 2010 (Amendment) Regulations 2023, a new provision of indirect associative discrimination has been introduced under section 19A of the EqA. The same provisions for ordinary indirect discrimination apply but extend to an employee who does not share a protected characteristic with a group that is placed at a particular disadvantage arising from the PCP, but who nonetheless suffers together with that group.

What is victimisation?

Victimisation occurs under section 27 of the EqA when an employee is treated less favourably than another person whose circumstances are the same because they:

brought claim under the EqA
gave evidence or information in connection with a claim under the EqA
did any other thing for the purposes of or in connection with the EqA
alleged that your employer or another person has committed an act that contravenes the EqA.

Justification for marriage and civil partnership discrimination

There will be no indirect marriage and civil partnership discrimination if an employer’s actions are justified.

To establish justification, an employer will need to show that there is a legitimate aim (ie a real business need) and that the PCP is proportionate to that aim.

Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of the employer.

Liability for marriage and civil partnership discrimination

An employer will be vicariously liable for the acts of its employees and workers for marriage and civil partnership discrimination unless it can show it took reasonably practical steps to prevent it from happening.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

Why choose Marjon Law for marriage and civil partnership discrimination advice and representation?

We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years, many of which involved workplace discrimination.

As specialist employment lawyers, our clients' interests are paramount to us.

We ensure that all our clients receive the best advice possible.

We will advise on workplace discrimination and represent you in any subsequent employment tribunal claim.

Contact us today ...