The law surrounding civil partnerships has changed

The law surrounding civil partnerships has changed. This may well affect your employees; are you fully up to date with the implications? rradarstation advisor Kiri Thompson examines the change in the law and what it might mean for your workplace.

On Monday 2nd December 2019, UK legislation was amended to allow mixed-sex couples in England and Wales to enter into civil partnerships as an alternative legally recognised union to marriage.

Previously, only same-sex couples could only enter into civil partnerships. However, this was challenged by mixed-sex couples who petitioned for the choice to enter into either marriage or civil partnership.

The minimum period of notice for a civil partnership is 28 days, meaning that the mixed sex couples who registered their intent to enter into a civil partnership from 2nd December 2019 could do so as early as 31st December 2019.

The government expects that around 84,000 mixed-sex couples will apply to form civil partnerships in 2020.

Such changes in legislation do vicariously affect the workplace as both Marriage and Civil partnership are some of the nine protected characteristics listed under the Equality Act 2010.

Under the Equality Act 2010, the protected characteristic of marriage and civil partnership does not cover:

• people living together as a couple (also known as cohabiting) who are not married or registered civil partners;

• individuals who are engaged to be married, who are intending to marry or enter into a civil partnership;

• people whose civil partnership has been dissolved;

• divorced people;

• widows or widowers;

• single people.

Within the workplace, this means that where two employees are married, or are in a civil partnership, they both have a protected characteristic.

Section 10 of the Equality Act 2010 makes harassment, victimisation and direct or indirect discrimination against a person based on their marriage or civil partnership to be unlawful.

The three types of discrimination within the protected characteristic of marriage and civil partnership under the Equality Act 2010 are:

• Ordinary direct discrimination;

• Indirect discrimination;

• Victimisation.

Under the Equality Act, the two other types of direct discrimination do not apply under the protected characteristic of marriage and civil partnership. These are:

• direct discrimination by association – so, an employee cannot claim discrimination because they are associated with someone, such as a friend, family member or colleague who is married or a civil partner;

• direct discrimination by perception – so, an employee cannot claim discrimination because they are perceived to be married or a civil partner.

However, these types of direct discrimination might apply if the discrimination crosses over into other protected characteristics such as sex or sexual orientation, or may raise human rights issues.

Discrimination against men because of their marriage or civil partnership is just as unlawful as discrimination against women because of their marriage or civil partnership. Also, it is no defence for the alleged discriminator to say they themselves are married or a civil partner, or that their actions were because of their religious or other beliefs.

It is unlawful for an employer to dismiss an employee because they are married or a civil partner, or to take action against them as a vicarious act just because their spouse or partner is being disciplined or even dismissed.

This protected characteristic “will cover any formal union of a man and a woman which is legally recognised in the UK as a marriage”.

Marriage to same-sex partners would also be covered. A civil partnership is one that is registered under the Civil Partnership Act 2004, including those registered outside the UK, for both same-sex and mixed-sex couples.

In the case of Dunn v Institute of Cemetery and Crematorium management, the Employment Appeal Tribunal (EAT) found that treating an employee less favourably because of the identity of his/her spouse could constitute marriage discrimination.

The EAT confirmed that there was conflicting case law on the matter but followed the case outcome of Chief Constable of the Bedfordshire Constabulary v Graham. In that case, a female inspector’s appointment to a position in the division commanded by her husband, a chief superintendent, was rescinded because the Constabulary deemed that she would not be a competent and compellable witness against her husband in any criminal proceedings. It was held that the treatment of the inspector was less favourable on account of a “marriage-specific” reason i.e. a reason specific to that marriage. As a consequence, she was successful in her direct marriage discrimination claim.

Employers should also be mindful that employers can be liable for the actions of their employees, and as such appropriate training and resources should be implemented to ensure the presentation of discrimination, harassment or victimisation towards anyone with a protected characteristic.

It is always best practice to ensure the organisation has a zero tolerance policy around bullying and harassment, has a policy on equality, diversity and inclusion which all employees are aware of and also implements regularly training to employees in this area.

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