What is Marriage Discrimination?

Marriage and civil partnership discrimination arise when someone is treated less favourably than others because of their marital status.

People who share the protected characteristic of marriage and civil partnership are those people who are married or are civil partners.

The Equality Act 2010 protects people from discrimination in employment because they are married or in a civil partnership.  This protection is only available in employment and not in the provision of goods and services or education.

Marriage and civil partnership are not protected characteristics for harassment purposes under the Equality Act 2010, therefore you cannot make a claim that you have been harassed because of your marital status.

  • Marriage covers any formal union which is legally recognised in the UK as a marriage. Therefore, marriage between a man and a woman and between a same-sex couple are covered.
  • In the UK, civil partnerships are governed by the Civil Partnership Act 2004. A civil partnership is a legal union between two people that grants them the same rights and responsibilities as married couples. It’s available to both same-sex and opposite-sex couples. Couples can choose to have a civil partnership ceremony or simply sign a legal document with two witnesses. After choosing a civil partnership, couples must give notice at their local register office.

There are three main types of marriage and civil partnership discrimination:

For direct marriage and civil partnership discrimination to occur, less favourable treatment must be “because of” marriage and civil partnership.

Here a couple of examples of direct discrimination:

  • It would be unlawful if the managers in your business are against civil partnerships and choose not to promote you because you’re in such a partnership.
  • A woman doesn’t get the senior job she applies for because the employer thinks it’s too demanding for a married woman.

Unless a ‘genuine occupational requirement’ direct discrimination can never be justified.

A genuine occupational requirement would be when a religious organisation such as the Catholic church refuses to appoint a married priest,  this would not be direct discrimination.

When a policy is applied equally to all staff but has a detrimental effect on people with a protected characteristic i.e. being in a civil partnership or are married this is indirect discrimination.

There may be justification for the indirect discrimination if there is a quantifiable reason for the policy or practice. 

If you are treated badly because you have made a complaint about discrimination, this is victimisation.  If you do something related to a complaint, such as supporting a colleague when they complain and are treated badly this is also victimisation.

Here is an example where victimisation would apply:

  • You complain because you think you have been discriminated against when your employer did not promote you because you were married.  If the  employer then treats you badly because you have complained, this would be victimisation.

Try to resolve the issue informally at first either by talking to the perpetrators or your manager.  If this fails, then you could then raise a formal grievance.  This is something to consider if you want to continue with your employment.  Check the employer’s policies and procedures on the process for guidance on how to do this.

You do not need to go through the grievance process to make an employment tribunal claim, but it could help you. This is because:

  • you may resolve your dispute informally, so you no longer need to make a claim;
  • it could affect how much compensation you’re awarded if you do make an employment tribunal claim.

If the grievance process fails, then you could start the claim process which begins with contacting ACAS, to inform them you wish to make a claim. This is a free service, and with your consent ACAS will talk to both you and your employer about your dispute. It gives you the chance to come to an agreement without having to go to tribunal.

If early conciliation or conciliation does not resolve your dispute and the tribunal continues, your case will be heard in public, and a decision will be made by the tribunal.

This process is particularly suitable if you want compensation for the discrimination, you have suffered but have had enough of your job and would like to leave.

A settlement agreement means that you give up any rights to bring claims to a tribunal or court in future, in exchange for an agreed financial amount.

From the relatively few cases on marriage or civil partnership discrimination, many have tested the definition itself rather than whether discrimination has taken place.

A successful claim for marriage discrimination is rare. In most cases that have been heard in recent years the Employment Tribunal have concluded that the detrimental treatment of the employee by the employer was related to whom the employee was married to, rather than the fact that the employee was married.

Ms Bacon (a director at Advanced Fire Solutions) was dismissed from the company during divorce proceedings with her husband Mr Bacon who was a major shareholder in the same company. Ms Bacon was dismissed by Mr Ellis the Managing Director who sided with her husband in the divorce.

Ms Bacon brought a claim in the Employment Tribunal, arguing unfair dismissal and direct discrimination on the grounds of sex and marriage.

Mr Ellis had suspended Mrs Bacon, did not pay her dividends or share loan repayments, then dismissed her on “spurious grounds” and made a “wholly baseless” complaint to the police accusing Mrs Bacon of theft.

The Employment Tribunal decided that Mr Ellis had discriminated against Ms Bacon because she was married.

Mr Ellis appealed, and the Employment Appeal Tribunal allowed the appeal because the Employment Tribunal had failed to fully address the issue whether it was her marital status which was the cause of the detrimental treatment or the fact that she was married to Mr Bacon. The Employment Tribunal had failed to apply the comparator test to ask whether someone in a close relationship with Mr Bacon but not married to him would have been treated any differently.

If you would like any advice or support in bringing or defending a marriage discrimination claim, please do not hesitate to contact the team on 01983 897003.

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.


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