Married status is a protected characteristic, but single people facing workplace discrimination have little protection. Despite its lack of recognition, the issue deserves to be treated seriously

The #MeToo and #BlackLivesMatter movements have placed a strong focus on equality for victims of harassment and discrimination. It therefore seems an opportune time to examine a longstanding area of inequality, namely discrimination against single workers. This arises from the fact that they are currently disadvantaged when compared with the treatment of non-single workers.

This commentator believes that this is an anomaly in the law that needs addressed quickly. This type of discrimination has become known as singlism (B DePaulo, Singled Out, St Martin’s Press, New York, 2007), and the disadvantage suffered mainly consists of being excluded as a protected characteristic under the Equality Act 2010. The Act does not protect single workers, the divorced or those who were in a civil partnership which has been dissolved. The unfairness derives from the fact that the Act does prohibit discrimination in the workplace because of an employee’s marriage or civil partnership status: S Middlemiss, “Relationship Problems: Employer’s Liability for Marital Discrimination?” (2015) 44 CLWR (1) at 51-70. This article will consider the legal treatment of this category of worker under equality law and the case for reform.

According to the Office for National Statistics, the number of people living alone in the UK has increased by a fifth over the last 20 years, from 6.8 million in 1999 to 8.2 million in 2019, driven mainly by an increase in men aged 45 to 64 years living alone. Scotland has the highest proportion of one-person households at 35.0%, and London the lowest at 23.9%. These figures illustrate that single people are on the increase in society and in workplaces in the UK. With this in mind, this article will show that single people can often be treated less favourably than their colleagues who are in formal relationships. It will consider the impact on single workers of this unequal treatment, and their available legal redress, which is limited.

Singlism involves stereotyping, stigmatising, and discriminating against people who are single. However, before considering the legal position, it is important first to consider such research as has been undertaken to date into this problem in the workplace.

Dearth of research

Unfortunately, there has been very little research into experiences of singlism at work in the UK. “Academic research on ‘singleness’ is surprisingly sparse and relatively underdeveloped, with few empirical investigations” (T Hafford-Letchfield, N Lambert, N Long, “Going Solo: Findings from a survey of women ageing without a partner and who do not have children” (Journal of Women and Ageing, 2016: bit.ly/3uUVQcc).

There have been only a couple of surveys undertaken in the UK to date. The first was carried out by a media company called Carat in 2006. It undertook a telephone survey of 4,000 people which revealed, among other things, that six out of 10 single workers claimed to have experienced some form of discrimination in the workplace because they were not romantically attached (The Guardian, 23 January 2006).

The most common forms of discrimination against singles complained about related to working hours and the social aspects of the job. It was found that 34% of single workers were expected to work more at weekends, 29% had to work longer hours, and 27% to attend more out-of-hours social functions than their colleagues in relationships. One in five said they had been expected to travel more for work than their colleagues in formal relationships.

Interestingly, two-thirds of single men said they had experienced at least one instance of discrimination, compared with 48% of single women. Younger single workers claimed to have it worse. Of those contacted, 70% of 16 to 24-year-olds said they had experienced discriminatory attitudes based on their single status, compared with 58% of 25 to 44-year-olds and 45% of 45 to 64-year-olds.

This research highlights the high incidence of discrimination against single workers and the nature of the workplace discrimination they suffer, with younger workers being particularly affected. (See also BBC Worklife, “How to say no at work when you don’t have kids”, 15 August 2017.)

Interestingly, the issue of whether someone has children can come up in the scope of considering the experience of single people at work. Clearly, being single does not preclude someone from having children. There has been some research into a different but related issue, namely the plight of childless workers. A survey of 25,000 workers by Opportunity Now found that two thirds of childless women aged between 28 and 40 felt they were expected to work longer hours than colleagues with children. (Opportunity Now is a programme of the UK-based organisation Business in the Community (BITC). It functions as a separately governed initiative of BITC and is a business led, membership group for employers who are committed to creating an inclusive workplace for women.)

In the US, a survey was carried out in 2017 by Suffolk University. The researchers found that single workers were more likely to be sexually harassed by colleagues than their married counterparts: 42% of women who had always been single said that a co-worker had made unwanted sexual advances, compared with 30% of married women who reported being sexually harassed.

There is clearly a need for further research on a broader scale in both jurisdictions, given the high incidence of the behaviour identified in these studies.

Limits of marital protection

There are few cases involving discrimination against single workers, for the good reason that there is no protection for them under equality law. Most of the cases arise under the legal provisions dealing with discrimination against married workers or those in a civil partnership, so it is worth outlining the relevant law.

Discrimination on the grounds of marital status was originally unlawful under s 3 of the Sex Discrimination Act 1975. It is now covered by s 8 of the Equality Act 2010, which extends also to civil partnership. Section 8(1) states that a person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner. (Civil partnerships were originally introduced for same-sex couples to formalise their relationships. However, in recent times the right to enter into this arrangement has been extended to opposite-sex couples in most jurisdictions in the UK.)

While fewer claims on this ground are brought compared with the other protected characteristics, it is a type of claim that is not available to workers who are not married or in a civil partnership. It covers those who are married in a legally recognised union (different and same sex) and those who are in a civil partnership (of different or the same sex). It excludes anyone who is single, divorced, widowed or cohabiting. However, as will be seen, it is uncertain whether it excludes those who are engaged to be married. Thus, employers do not have to curb making assumptions about single workers that they are free and willing to be taken advantage of. This might involve overloading single workers with assignments that involve them having to undertake excessive domestic or overseas travel, or work unsociable hours.

In Hawkins v Atex Group Ltd [2012] ICR 1315 a claim for marriage discrimination was unsuccessful because it also involved discrimination against a separate single employee. In this case the claimant, a marketing director, was married to the chief executive officer of a company. She lost her job as a result of an instruction from the chairman that no member of the chief executive’s family should be employed by the company in an executive or professional capacity because of concerns about perceived conflicts of interest. The CEO’s daughter was employed by the company as the global human resources manager, and she was also dismissed. Given that, the dismissal of the claimant was held not to be discrimination because of marriage. Clearly, where a single worker is included in an employment decision that adversely affects a married worker it will invalidate any claim of marriage discrimination.

In Pemberton v Inwood [2018] ICR 1291 (CA), the decision was made to dismiss a church minister because his marriage had broken down. The issue was whether the dismissal amounted to marriage discrimination. It was decided that where an employer would not have so treated an unmarried person (unmarried partners), they had treated the married person less favourably. This was almost certainly because of their conscious or subconscious attitudes to or assumptions about marriage, and this was direct marriage discrimination. Again, single workers are the appropriate comparators in claims of marriage discrimination.

Similar logic was used in the EAT decision in Gould v St John’s Downshire Hill UKEAT/0002/20/BA.

And the engaged?

Interestingly, if someone is single but engaged to be married, they might be able to bring a claim under s 8. This is illustrated in Turner v Stephen Turner ET/2401702/04, where a woman was dismissed when her forthcoming marriage to her employer’s son was announced. It was held she was discriminated against, contrary to the protection of married persons under s 3 of the Sex Discrimination Act. The case was decided by reference to articles 8 and 12 of the European Convention on Human Rights. The Employment Tribunal decided that when s 3 was considered in the light of these articles, it applied not only to married persons but also to those about to get married.

An unsuccessful claim on a similar ground was made in Bick v Royal West of England Residential School for the Deaf [1976] IRLR 326. A woman who announced her intention of getting married to her employer was dismissed. The Employment Tribunal acknowledged that it was the intention of the statute to penalise employers who dismissed female employees when they were about to get married. However, they decided that the discrimination against her took place on a day when she was not married and had simply announced her intention to be married. The protection otherwise afforded to married persons did not apply. The correctness of this decision was cast in doubt by the Turner decision considered above.

Other options?

In Gan Menachem Hendon Ltd v De Groen UKEAT/0059/18/OO, an Orthodox Jewish nursery dismissed a teacher when people found out she was living with her boyfriend without being married, something that was generally frowned on by the Orthodox Jewish community. After the discovery was made, the school asked her to write to the parents of her pupils and say that she had changed her living arrangements and was no longer living with her boyfriend, which was untrue. She refused to do this and was dismissed. The Employment Tribunal held that she had suffered from both sex discrimination and religious discrimination. However, the nursery appealed and the Employment Appeal Tribunal decided that only the sex discrimination and harassment claim could be upheld.

What the review of the case law has shown is that there are very limited legal options under the Equality Act for workers who face discrimination because they are single.

The single worker could claim discrimination under the Act, but it would be difficult to pursue a claim if the discriminatory action taken by the employer is taken against all single workers and not because of a particular protected characteristic. As has been shown in the research, single workers can be particularly liable to be harassed. The difficulty of bringing a harassment claim would be in showing that it was not only because of their single status but also because of one of the nine protected characteristics covered by the Act. There could be other actions that could be pursued under employment law in the UK, such as unfair dismissal or harassment under the Protection from Harassment Act 1997. However, these options are limited and will not be considered here.

Still at square one

The following quote identifies the process by which legal changes in a discriminatory context often take place.

“All serious forms of prejudice and discrimination go through a similar process of going unrecognised, then getting dismissed and belittled once people start pointing them out, and in the best cases, eventually getting taken seriously” (B DePaulo, “Singlism: How Serious Is It, Really?”, Psychology Today, 9 September 2018). This form of discrimination would seem to be at the first stage of this process. For example, Acas in their 2017 guidance on Marriage and civil partnership discrimination: key points for the workplace make no mention of discrimination against single workers.

If there was a will amongst legislators in the UK to change the law to protect victims of singlism, this could be achieved pretty simply by an amendment of s 8 of the Equality Act to include single workers. Unfortunately, in the current political climate it will be difficult to persuade the legislators and policy makers that this change is desirable and necessary. As DePaulo also comments, identifying the challenge ahead: “I think there will be progress in getting singlism taken seriously, but it may be slow and unsteady, with setbacks as well as advances.”

Hopefully, this article will play a part in persuading people of its importance.

The Author

Dr Sam Middlemiss is formerly Reader at Robert Gordon University, Aberdeen

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