Essentially, this discrimination is one of the lesser-known areas of the Equality Act 2010. It was introduced at a time when a woman would typically be given notice simply due to having got married. Times have changed, but it is important to note that this claim remains good law, and indeed, we have been dealing with just such a case in Tribunal only this last month.
The Equality Act 2010 has 9 protected characteristics, and “marriage and civil partnership” is one of these. It covers any formal union legally recognised in the UK – so same-sex marriages are covered – and any civil partnership under the Civil Partnership Act 2004. It does not cover people who are not married or in a civil partnership – whether they are engaged to be so, or divorced – so the protection is solely for those in these relationships.
This, therefore, means that discriminatory action taken on these grounds is protected and allows the recipient to sue under the Equality Act. This can be direct discrimination – treating someone less favourably than someone else because they are married/civil partners – or indirectly – when there is a policy or rule which applies equally to all, but disproportionately disadvantages married people or those in civil partnerships; or victimisation as with all the protected characteristics, preventing unfavourable treatment being given for asserting a claim or bringing one.
Whilst it is a little used area of law, it is still good law, and you can find yourself on the end of a potentially costly claim if you are not aware of it, so ensure that no decisions you make are tainted by this discrimination.
To give an idea of how this can apply, the facts in this case may help illustrate the point:
In Boswell v Ministry of Defence, Mr Boswell was in the Navy and lived in single accommodation until he married another member of the armed forces. The MOD’s accommodation policy required the couple to nominate one as “head of the household” and Mr Boswell was so nominated. This meant he had to stay in family accommodation, not single accommodation, at extra cost. He and his wife owned a home, and he required only single accommodation. When he was not married, but in the relationship, this was what he was entitled to. This was therefore direct discrimination against married people, and due to the fact of his marriage. He received £34,000 in total, which indicates that claims may be rare but can be costly.
The most likely area that we find this comes up is when both parties to the marriage or civil partnership work in the same place, and when one either leaves or is fired, the other is either asked to leave or perhaps is treated with less trust as a result.
There are some legal exceptions which recognise that a requirement for someone to be married/in a civil partnership or NOT to so be, is legally acceptable.
Occupational Requirement - which must be a crucial requirement, and must be genuine.
Organised Religion – some religions will have a genuine need to stipulate that the parties be either married or not as above. It must be related to the doctrines of the religion. A successful application of this was to a Church of England chaplain who had married a same-sex partner at the time this was against the Church’s teaching.
Insurance Contracts – as an employer, it is legal to provide employees with life assurance etc which involves the assessment of risk with differences in benefits as calculated by reliable actuarial data. It is also legitimate to offer more favourable benefits to people on the grounds that they are married or in a civil partnership – which may cover, for example, medical benefits for spouses/civil partners.
As an employer, the main thing to take away is that any discrimination claim is costly to defend and thus best avoided and to be aware of all 9 characteristics which can result in this, including this one.
As mentioned earlier, the main area where we have found this to be relevant is where the employer is thinking of taking action against someone whose spouse or civil partner also works for them. In this case, we recommend seeking advice, as it can become messy and it is best to ensure such claims have clear blue water between the two parties.
The essential test is – would you treat the person in question the same if the relationship in question was not one of marriage, but a close personal relationship such as cohabitation? If so, you should avoid discriminating on this ground. As with all legal tests, nothing is ever quite as straightforward as it sounds, and it’s wise to get advice when you have a concern over this.
Whilst it’s not possible to eliminate claims altogether, approaching the scenario carefully can avoid having to defend costly claims in the first place.