Why does the employment law not do more to protect couples who live together and are not married or civil partners?
The law does a lot to protect the rights of people who are married and in civil partnerships but does not recognise the rights of people in other types of relationship so readily. Unmarried couples have no right to each other’s property if they split up, they are taxed differently, their position is less good if one partner dies and they can be treated less favourably at work when compared to people who are married or are civil partners.
Let’s consider some examples of how couples who cohabit might be less favourably treated in an employment scenario.
It is lawful to promote a person who is married ahead of a person who isn’t:
Tim and Dave work in a car showroom. Tim is married with two children, Dave has recently moved in with his girlfriend. They both apply for the position of sales manager. Tim is promoted and Dave is told that Tim has got the job because he is a steady, married man and so the company feels he is more likely to stay around for longer.
There is nothing Dave can do about this unfair treatment.
This time, Dave is given the job and Tim is told he wasn’t promoted because he was married and would always put his wife first and not put the long hours in necessary to drive the sales targets.
Tim has a claim for marriage discrimination. He has been less favourably treated because he is married.
Why is such different treatment legally acceptable?
Difficulty of definition
The law deals with facts and absolutes. When drafting legislation, lawmakers attempt to provide certainty so that the laws may be interpreted easily by the courts. Understandably the ability to accurately gauge the level of commitment between a couple means that the law cannot establish with any clarity when a couple who have not married or become civil partners have demonstrated sufficient commitment that their relationship should be recognised.
Let’s think about what that means in reality by considering the following different scenarios:
Bob has been working as a gardener at a large country estate for ten years. When his colleague retires the gardener’s cottage on the estate becomes available and Bob is hoping to move in. He meets Sandra…
- On Saturday night;
- They have been seeing each other for 6 weeks;
- They have been together for 3 months and Sandra occasionally stays at Bob’s house at the weekends;
- They have had an on and off relationship for 3 years but have never lived together;
- They live apart but have a child together;
- They already live together;
- They live together and have three children;
Bob’s employer refuses to allow Bob to move into the property with Sandra because they are not married.
There is nothing Bob can do about this seemingly unfair decision. Marriage and Civil Partnership discrimination only protects those who are married or civil partners.
When do you think the law should accept Bob and Sandra as a couple?
Is the law entitled to intrude upon people’s private lives if it needs to determine the answer to such a question? Should Bob be required to provide evidence of their commitment to each other? Do the courts have the time to consider this level of paperwork?
Does time or level of commitment count? If Bob is not with Sandra but has a string of girlfriends should they all be entitled to move into the property whilst they are in a relationship with Bob? Who will define what a committed relationship looks like and how will they do that?
As you can see, in law, it is impossible to define what a relationship is unless a couple is married or in a civil partnership.
Perhaps this will change in the future, as more and more couples choose not to marry or enter civil partnerships, but for now it will only protect against discrimination for those couples who choose to formalise their relationship.
Tom Street qualified as a solicitor in 2003 and has over 20 years experience in employment and litigation law. He studied law at the University of Manchester before undertaking the legal practice course at the College of Law in Guildford, going on to complete his legal training at a firm in Chancery Lane, London. Once fully qualified, he moved to a niche litigation practice in the City of London.
In 2010, Tom set up his own legal practice, Tom Street & Co Solicitors and as part of this, in accordance with his strongly held objective to provide everyone with an easy pathway to justice he established the online portals Do I Have A Case? and Tribunal Claim. These websites are trading names of Tom Street & Co Solicitors.