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Marriage and civil partnership discrimination

Updating author: Tina McKevitt


  • The law relating to marriage and civil partnership discrimination is governed by the Equality Act 2010. The core provisions of the Act, which repealed the Sex Discrimination Act 1975, came into force on 1 October 2010. While the Equality Act 2010 largely consolidated previous discrimination legislation, it also defined marriage and civil partnership as a protected characteristic in its own right and removed the requirement for a comparator to establish victimisation. It is assumed that many of the principles that were established in the extensive body of case law that was decided under previous discrimination legislation will remain relevant in interpreting the provisions of the Equality Act 2010. For this reason such cases have been included in the body of this section together with an indication of the legislation under which they were decided.
  • Marriage and civil partnership is a "protected characteristic" under the Equality Act 2010 and, under the Act, means being married or being a civil partner. (See Meaning of marriage and civil partnership)
  • The definition of "employee" for the purposes of protection against marriage and civil partnership discrimination is wider than that contained in other employment legislation. (See Who is protected?)
  • As well as being liable for its own actions, there are circumstances in which an employer will be liable for the acts of others. Under the wider provisions of the legislation, others who are not employers may find themselves liable. (See Who is liable?)
  • The Equality Act 2010 prohibits direct discrimination (which, in contrast with most of the other protected characteristics does not include discrimination by association or discrimination by perception), indirect discrimination and victimisation. (See Prohibited conduct)
  • It is unlawful to discriminate in the context of employment or vocational training including, in particular circumstances, after the working relationship has ended where the prohibited conduct arises out of and is closely connected to that relationship. (See Prohibited conduct in the employment context)
  • Direct discrimination is where, because of the protected characteristic of marriage and civil partnership, person A treats person B less favourably than person A treats or would treat other persons. A's treatment of B must be because it is B who is married or a civil partner for the treatment to constitute discrimination. (See Direct discrimination)
  • Indirect discrimination is where person A applies to person B, to B's disadvantage, a provision, criterion or practice that A applies or would apply equally to persons who do not share the protected characteristic of marriage and civil partnership, but which puts, or would put, persons who do share that protected characteristic at a particular disadvantage when compared to other persons, and which A cannot show to be a proportionate means of achieving a legitimate aim. (See Indirect discrimination)
  • An employer may be able to justify the discriminatory result of a provision, criterion or practice by establishing that it is justifiable because it is a "proportionate means of achieving a legitimate aim". (See Justification)
  • Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to harassment under the Act. (See Protection from Harassment Act 1997)
  • Victimisation is where person A subjects person B to a detriment because B has done, or A believes that B has done, or may do a "protected act". (See Victimisation)
  • Employers may in certain circumstances lawfully restrict work to people who are not married or a civil partner. (See Occupational requirements)
  • People who are married or a civil partner may be lawfully excluded from employment or appointment to a personal or public office in certain circumstances where the employment or appointment is for the purposes of an organised religion. Exceptions from unlawful discrimination also exist in relation to various other matters including acts done for the purpose of safeguarding national security and insurance contracts. (See Other exceptions)
  • Terms that constitute, promote or provide for treatment that is prohibited under the Equality Act 2010 are unenforceable. It is not possible to contract out of the Act's provisions except by way of a conciliated settlement or a valid compromise contract. (See Terms)
  • Employers may, in certain circumstances, take measures to enable or encourage people who share a particular protected characteristic to overcome a disadvantage that the employer reasonably thinks is suffered by people with the same protected characteristic. Employers may also, in defined circumstances, appoint or promote a person with a protected characteristic in preference to another person who does not have the protected characteristic. (See Positive action)
  • With effect from 1 October 2010, all occupational pension schemes must be read as including a non-discrimination clause. (See Pensions and other employment benefits)
  • Public authorities have a general duty to eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Equality Act 2010. (See Public authorities)
  • Prior to the implementation of the Equality Act 2010, marriage and civil partnership discrimination was dealt with under the Sex Discrimination Act 1975. (See Marriage and civil partnership discrimination prior to the implementation of the Equality Act 2010)

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