Law guide: Employment

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Marital status

Marital status

Contents

Introduction

Anti discrimination legislation provides that you cannot treat a worker less favourably than others because of their marital status. Workers who are married or who have entered into a civil partnership are protected, but those who are single are not.

Discrimination in the workplace is unlawful in all aspects of employment, including the recruitment process, status, training, promotion and transfer opportunities, redundancy, dismissal and even post-employment.

Types of marital status discrimination

Direct discrimination

This is where you treat a worker less favourably because of their marital status when compared with another worker (known as a 'comparator') who is not married or in a civil partnership and who shares the same or similar (but not materially different) circumstances as the complaining worker.

The comparator's circumstances do not need to be identical (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If a suitable comparator cannot be found, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as the complaining worker (such as their title, role, level etc). An Industrial Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

For example if a single person, who has the same experience and qualifications as a married worker, is promoted instead of a married worker simply because he/she is single.

You could be liable for direct discrimination even if you did not intend to discriminate against your employee.

The only available defence to a direct discrimination claim is proving that there was no discrimination.

Indirect discrimination

This will occur where you equally apply a formal or informal provision, criteria or practice to all the workers in the workplace that places a group of workers at a particular disadvantage compared to other workers because of their marital status, and a worker within that group actually suffers the particular disadvantage.

It does not matter whether or not this has been done intentionally.

You can defend against indirect discrimination claims by justifying the use of the unlawful practice, provisions or criteria, if you can show that its application is a proportionate means of achieving a legitimate aim.

Victimisation

Victimisation happens when a worker is treated less favourably than another worker because:

  • They have asserted their right not to be discriminated against on the basis of their marital status by making a complaint about discrimination because of their marital status
  • They gave evidence in a complaint of discrimination because of marital status
  • They did anything else relating to marital status discrimination
  • They have alleged that you or another worker have contravened legislation regarding marital status discrimination
  • You know that they intended to do or you suspect that they have done or intend to do any of these things

For example, a worker might have grounds for a victimisation claim if they are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because they took any of the above mentioned actions.

If you dismiss an employee, or if an employee resigns because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Industrial Tribunal. In addition, they may also claim for damages on the grounds of discrimination, which they will be able to do regardless of their length of service.

A complaint must be presented within three months from the date of the act complained of, unless the tribunal considers that it is fair and reasonable in the circumstances to hear the claim outside that period.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.

Further information

You can get more information from the Labour Relations Agency (LRA), which offers free, confidential and impartial advice on all employment rights issues.

You can call the LRA helpline. The Equality Commission for Northern Ireland can help with advice regarding discrimination and equal opportunities.