New Employment Rights for Same-Sex Couples
The Civil Partnership Act 2004 (CPA) came into force on the 5th December 2005 in Great Britain and Northern Ireland. The CPA provides for same-sex couples to make a formal, legal commitment to each other via a statutory civil registration procedure. They will then have rights and responsibilities comparable to married spouses for the purposes of tax, inheritance, immigration and nationality, employment and pension benefits. Civil partnership is not available for opposite-sex couples, who may, if they wish, marry in order to obtain legal recognition of their relationship.
This legislation will have some impact on employers in that discrimination against civil partners in the employment field is prohibited in the same way as discrimination against married persons is prohibited. The CPA extends the protection currently afforded to married persons to cover civil partners by amending relevant sections of the Sex Discrimination Act 1975 and equivalent NI legislation. The Act also amends the Employment Rights Act 1996 regarding the right to time off for dependants so that civil partners are expressly included in the list of persons defined as dependants.
In addition, regulations made under the CPA amend the provisions on paternity and adoption leave and pay and flexible working requests to accommodate the status of a civil partner.
The Employment Equality (Sexual Orientation) Regulations 2003 have also been amended to take account of the introduction of civil partnerships. Essentially, the amendments make it clear, for the purposes of the Regulations, that the status of a civil partner is comparable to that of a spouse and hence that the less favourable treatment of a civil partner compared to a married person in a comparable position would constitute discrimination. There are exceptions where an employer can show that being heterosexual is a ‘Genuine Occupational Requirement’ (GOR) of the job or where employment for the purposes of an organised religion permits an employer to apply a requirement related to sexual orientation in order to comply with the doctrines of the religion. There are also exceptions where the right to the benefit was accrued or payable prior to the coming into force of the CPA (5th December 2005).
It is important to note that this legislation does not give any new rights to comparable treatment for unmarried heterosexual couples. It is still lawful to restrict benefits to people who are married or civil partners to the exclusion of those who have neither status.
Employers are advised to audit their terms and conditions of employment, including any less formal policies, procedures and practices, and ensure that any benefits provided to married partners, for example staff discounts, private health insurance, death-in-service benefits, special leave entitlements, invitations to social events etc. are also available to civil partners. Organisations that traditionally offer joint employment to ‘husband and wife’ teams should also ensure that advertisements etc. are amended to include ‘civil partner’ teams.
Naturally, it is important that employers take account of sensitivities when implementing these new provisions. In particular, the process for claiming any relevant benefits or entitlements should be the same for civil partners as it is for spouses. For example, if documentary evidence of marriage has not normally been required before granting the benefit, then documentary evidence of civil partnership should not be required either. In addition, individuals should not be asked to identify themselves specifically as a civil partner, but rather as ‘married or in a civil partnership’ or ‘spouse or civil partner’.
Clients should contact our 24 Hour Advice Service in the first instance to discuss any concerns arising from the introduction of this legislation. The employment documentation of individual clients having a full personnel contract with Peninsula will be reviewed in this regard as part of our normal service level provisions. Employers need to be aware of this new extension of discrimination legislation and to adjust their equal opportunities training and actions accordingly.