ACAS Marriage and Civil Partnership Guidance
In 2010, the Equality Act made marital status a protected characteristic, which meant that it was illegal to discriminate against somebody based on it. Since then, employees who experienced such discrimination have had the option to pursue a claim against their employer.
However, for employers, it can be difficult to fully understand both their obligations under the law and how these apply to the workplace. To help them, ACAS has released newly updated guidance which provides pointers on ways that such discrimination may inadvertently become part of a workplace or working relationship. It also explains ways in which employers can identify and deal with it, as well as taking steps to ensure that it does not reoccur.
What should employers do?
Employers should keep in mind that there are several areas where this kind of discrimination can occur.
If an employer decides not to employ someone because they are married or in a civil partnership, they would be liable to claims of direct discrimination in virtually all cases.
The wording of job advertisements, specifications and descriptions needs to be checked to ensure that any requirements are relevant to the job in hand. This can help to overcome any risk of discrimination. Involving more than one person in the process can avoid inadvertent bias.
During the interview process, it should be emphasised that questions which relate to the candidate’s personal life should be avoided if at all possible. Although the motive might be purely innocent, intended to gain a better idea of the candidate as an individual, there is a danger that any information gained could unconsciously influence the decision to hire – or not.
Pay, and terms and conditions of employment
When drafting or updating terms and conditions for staff, employers should take care that these do not exclude or disadvantage those who are married or in a civil partnership. Terms and conditions offered by employers should be generally the same, whether they apply to married employees and their spouses, those in same-sex marriages or those in civil partnerships. Such terms and conditions may include:
flexible working arrangements,
shared parental leave,
any gift from the employer or
extra days off when an employee marries or enters a civil partnership.
Because the Equality Act also gives protection from discrimination because of sexual orientation, this means that employers can’t discriminate against someone in a same-sex marriage as opposed to a heterosexual marriage.
If it is the case that members of staff are subject to different treatment, the employer will need to make sure that they have an objective justification in place. This will often take the form of a material factor that is unrelated to the protected characteristic; this could include skills, experience and qualifications.
Discrimination on the grounds of marital status should not occur when promotion opportunities are being considered. Examples of this may include:
only accepting applications from people who are not married or not a civil partner;
discouraging an employee from applying on the grounds of their marital status;
not promoting the employee who is the best fit for the job because of a belief that their marital status would be an obstacle to their promotion;
having an unspoken rule which dictates that candidates for promotion beyond a certain level should not be married or have a civil partner.
Employers should ensure that, wherever, possible, they:
state in job advertisements that they are willing to consider flexible working arrangements;
encourage the design (or redesign) of roles so that they allow for flexible working – this could include part-time working or a job-share.
If an employer does not provide training to an employee on the basis of their marital status, this will be discriminatory.
They should also bear in mind the needs of employees who are taking any kind of parental leave.
When announcing training opportunities, employers should make sure that all relevant employees are informed, whether they are in flexible working arrangements, part-time hours or full-time.
Employers who dismiss an employee because they are married or in a civil partnership will have broken the law.
An employer must not target employees in a redundancy process because it considers their flexibility is governed by their marital status.
Discrimination is more likely:
when the redundancy criteria are being drawn up, and
in the methods the employer uses to manage the redundancy process.
Types of Discrimination
Discrimination against marriage and civil partnership falls into three categories: direct discrimination, indirect discrimination and victimisation.
Direct discrimination occurs when someone is treated less favourably than others because they are in a civil partnership or married.
Indirect discrimination occurs when a rule, practice or procedure that applies to everyone at a workplace disadvantages people who are in a civil partnership or marriage.
Victimisation occurs when an employee suffers what the law terms a ‘detriment’ (a legal term that describes disadvantage, damage, harm or loss) due to their having made a complaint about marriage or civil partnership discrimination or have supported someone who has done so.
Employers need to make sure that they have drawn up, implemented and taken steps to enforce policies to stop discrimination.