Discrimination based on marital status

When we think about discrimination, we usually think about age, disability, race and sex.

But there are in fact nine ‘protected characteristics’ under the Equality Act. Marriage and civil partnership is one of them, but it is often overlooked or not given too much attention.

You may think that discrimination based on someone’s marital status is no longer an issue in this day and age, but unfortunately cases do arise and the consequences can be very unpleasant for those who breach the law.

All employers, irrespective of their size and sector, must adhere to the Equality Act, therefore let us provide you with a useful overview so you understand your main legal obligations.

What are the different types of discrimination?

There are three main forms:

1  Direct discrimination

An employee is directly discriminated against by another person if they treat the individual less favourably than they treat others because of a protected characteristic.

For example, you decide not to hire someone because they have just got married and you think it would suit someone who is single and can dedicate more time to work commitments.

It is important to note that there is no protection from discrimination by association or perception.

2  Indirect discrimination

Indirect discrimination occurs when a company’s policies, procedures or rules which apply to everyone has the effect that people with a certain protected characteristic are put at a disadvantage when compared with those who do not share it.

For instance, if an employer has a practice of not hiring anyone who has children, this would likely put those who are married or in a civil partnership at a disadvantage.

Indirect discrimination may be objectivity justified. The employer must be able to show that there is a good business reason and it is a proportionate means of achieving this legitimate aim. However, it is difficult to prove this is the case.

3  Victimisation

A person victimises an individual if they treat someone badly because they have performed a ‘protected act’ or they believe that they have done so or suspect they will. A protected act includes making a claim for discrimination or helping someone to make a claim.

For example, if an employee acted as a witness for an employee’s discrimination claim and they have been passed over for promotion, it could amount to victimisation.

Employees cannot bring a claim for harassment on this basis. However, they may still be able to make a claim under a different protected characteristic, for example sex or sexual orientation.

Who does it cover?

It covers those who are married in a legally-recognised union (different and same sex) and those who are in a civil partnership (of same sex), but it excludes anyone who is single, divorced, widowed, cohabiting or those who are engaged to wed.

Does it apply to job applicants too?

Yes! You should not ask a prospective employee if they are married or in a civil partnership in a job interview. Regardless of the reason behind the questions and what your views are, this line of questioning can amount to discrimination as it may imply that you think, for example, a married person is more reliable and committed than a single person. If the applicant voluntarily offers this information, you should not allow the information to influence your decision.

Can discrimination be justified?

Despite it being a persistent myth, it is not a valid defence for the alleged discriminator to say that they are themselves married or a civil partner.

In very exceptional cases, it may be considered lawful to refuse to hire someone because they are married or a civil partner, for example, appointing someone as a Catholic priest where there is a long-standing ban on priests being married.

If you want more information about the Equality Act, contact your Employment Law Adviser. No matter how small or big your enquiry, they can give you the advice you need to deal with your workplace challenge.