After 40 years of steady decline, statistics have confirmed that marriage rates across the UK are back on the rise. It seems appropriate therefore that in the space of a year the Isle of Man has witnessed the coming into force of two major pieces of legislation pivotal to the rights of persons of same sex or opposite sex couples. The Marriage and Civil Partnership (Amendment) Act 2016 took effect on 19 July 2017, making provision for the marriage of same sex couples as well as the partnerships of opposite sex couples. In an employment context, employees who exercise their right of marriage and civil partnership will be afforded protection pursuant to the Equality Act 2017 (“EqA 2017”), which received Royal Assent on 18 July 2017 and which builds upon and consolidates the existing law in this regard pursuant to section 5 of the Employment (Sex Discrimination) Act 2000.
What employers need to know
Under the EqA 2017, it is unlawful for an employer to:
- Discriminate directly by treating a job applicant or employee less favourably than others because that applicant or employee is married or a civil partner.
- Discriminate indirectly by applying, without justification, a provision, criterion or practice that disadvantages job applicants or employees who are married or civil partners.
- Victimise a job applicant or employee because they have made or intend to make a marriage and civil partnership discrimination claim, or because they have done or intend to do other things in connection with the EqA 2017.
There is no protection against harassment on the basis of the protected characteristic of marriage and civil partnership.
Single people and people in relationships outside of marriage or civil partnership (whether or not they are cohabiting) are not protected under this characteristic. Similarly, divorcees or people whose civil partnerships have been dissolved will not be protected. Protection against unlawful discrimination on grounds of marriage or civil partnership arises only in respect of those who are legally married or in a civil partnership and, in an employment context, will apply to the following:
• recruitment,
• promotion,
• access to training,
• dismissal (including redundancy); and
• post-employment (e.g. provision of references).
Marriage and civil partnership discrimination may be permitted in certain limited circumstances, for example, where there is an occupational requirement for an employee not to be married or a civil partner. Such circumstances will be rare, but case law examples include organised religion, where in the case of Reverend Canon Pemberton v Former Acting Bishop of Southwell and Nottingham UKEAT/0072/16, the UK Employment Appeals Tribunal upheld an employment tribunal’s decision that a Bishop was entitled to rely on the organised religion occupational requirement to discriminate against a homosexual canon on the grounds that homosexuality contradicts the doctrine of the Church of England.
If a job applicant or employee succeeds in a claim for marriage and civil partnership discrimination, a tribunal will generally award compensation (including a sum for injury to feelings).
Whilst these protections have been in place (in some form) on the Island for a considerable period, there is an absence of case law citing marriage and civil partnership discrimination as the grounds of the complaint. This is similarly the case in England and Wales where the number of cases citing discrimination on grounds of marriage and civil partnership are in stark contrast to claims raised on grounds of the protected characteristics of sex and race discrimination. Notwithstanding that the statistics would suggest the risk of a claim under this protected characteristic to be less likely than those on other protected grounds, it should be remembered nevertheless that where an employee discriminates against another, the employer will be liable unless it has taken reasonable steps to prevent such conduct from taking place. The offending employee might also be liable. Staff awareness and a culture and leadership promoting equality at work can therefore go a long way in avoiding any potential litigation in this area.
As part of promoting a culture of equality and diversity, Island businesses may want to consider availing of targeted eLearning, aimed at educating employees on the key concepts of the law on diversity and inclusion, with a view to reducing the risk of work place issues whilst also strengthening an employers’ defences to tribunal claims and, as reported by Deloitte in 2012, boosting business performance overall. Further information on DQ’s Equality Online training initiative in association with Legal-Island can be found here.
To obtain free trial access to review the Isle of Man diversity & inclusion online module on behalf of your organisation or discuss your requirements further, please contact employment@dq.im .
