The waiting will soon be over for same-sex couples who want formal recognition for their relationship. From 5 December 2005, they will be able to have that relationship recognised with the legal status of ‘civil partnership’. The Civil Partnership Act 2004 (CPA) will give same-sex couples, who register as civil partners, similar rights and responsibilities to married couples.
The key point for employers is that they will have to recognise civil partnerships in the same way as marriages.
It has been unlawful for employers to discriminate on the grounds of sexual orientation since December 2003 when the Employment Equality (Sexual Orientation) Regulations 2003 came into force. In response to the CPA, the Department of Trade and Industry is currently consulting on a proposed amendment to the regulations. The amendment is intended to:
- make it clear that a civil partner has comparable status to a spouse, so that a civil partner who is treated less favourably than a married person can claim sexual orientation discrimination
- make it unlawful for an employer to justify less favourable treatment of a civil partner compared with a spouse (unless being heterosexual is a genuine occupational requirement).
It has been unlawful to discriminate on the grounds of marital status since the Sex Discrimination Act 1975 was enacted in the 1970s. The CPA makes it unlawful to discriminate on the grounds of being a civil partner in exactly the same way by amending the Sex Discrimination Act 1975 so that protection from discrimination on the grounds of marital status is extended to civil partners.
The CPA comes into force on 5 December 2005, but civil partners-to-be must give 15 days’ notice before the civil partnership can be registered. The earliest date on which a person can become a civil partner in the UK will be 21 December 2005.
Civil partnerships already exist in other parts of the world, under various names. Where the requirements for these overseas relationships meet the UK criteria for civil partnerships, employees in overseas civil partnership relationships must be treated in the same way as UK civil partners, and do not need to re-register. So employers need to ensure equal treatment for civil partner employees from 5 December.
Employers will benefit from measures that broaden the categories of people who may lawfully live and work in the UK. Work permit applications can cause delays and uncertainty in getting the right person. No work permit application is necessary where the prospective employee has the right to work in the UK by virtue of marriage to a UK citizen, or of being the spouse of a valid work-permit holder.
The legislation will give civil partners similar immigration rights to those of married couples so that the non-European Union citizen civil partner of a British citizen will be able to apply to enter or remain in the UK. Under the existing law, same-sex couples have to wait until they can show that they have been in a relationship for two years before applying to enter or remain as an unmarried partner.
While the Home Office has yet to provide detailed guidance on immigration rights for civil partners, it is expected that civil partners of work permit holders will be able to work in the UK as work permit-dependent visa holders, without a work permit.
The CPA applies to state pensions, occupational pension schemes that are contracted-out of the State Second Scheme, and public sector pensions. A surviving registered civil partner will be entitled to pension benefit provisions similar to those of a surviving spouse, and will be able to claim a state pension from the national insurance contributions of his or her deceased civil partner. A surviving registered civil partner will also be entitled to a survivor’s pension in respect of any contracted-out pension rights which the deceased member may have built up since 6 April 1988.
The CPA has no direct impact on occupational pension schemes which are not contracted out of the State Second Scheme, including group or personal pension plans, but no doubt some providers will review their arrangements.
Under amendments to the Employment Equality (Sexual Orientation) Regulations, it will be unlawful for sponsoring employers and trustees of such pension schemes to discriminate between married couples and civil partners by providing members who have civil partners with fewer benefits. These amendments only apply to future pension rights from the date the regulations come into force.
There is no requirement under the CPA to change the rules of an occupational pension scheme because any necessary changes will be imposed by statute on those schemes that have to comply. However, if a scheme fails to make changes, a surviving registered civil partner could bring a discrimination claim if he or she is not entitled to benefits that a surviving spouse would have received in the same circumstances.
When a civil partnership is being dissolved, registered civil partners will be entitled to a pension sharing order from an occupational pension scheme, so this documentation will have to be altered.
The major changes in how pensions are to be taxed will be extended to include similar tax treatment for registered civil partners under the Finance Act 2005.
Any employment benefits provided for the spouse of a married employee must also be extended to civil partners to avoid unlawful discrimination. These could include:
- marriage payments or gifts
- additional holiday for weddings and honeymoons.
Benefits commonly extended to spouses of employees include:
- private health insurance
- paid travel and accommodation expenses for spouses to accompany employees on secondments or business travel
- Christmas parties for employees and spouses
- staff discounts.
No distinction should be made between married people and civil partners in the provision of these benefits.
Family-friendly rights for civil partners
Same sex couples already qualify for the following family friendly employment rights, which will remain unchanged by the CPA:
- Parental leave
- Emergency time off for dependants
- Adoption leave
- Maternity and paternity leave – maternity leave and pay provisions do not differ according to marital status. The same-sex partner of a woman who has a baby may qualify for paternity leave. A man in a same-sex relationship may qualify for paternity leave if his partner takes adoption leave. It is also possible that a woman employee may take both maternity and paternity leave during her employment
- Flexible working requests – the right to request flexible working extends to same-sex partners of mothers, fathers, guardians, adopters, and foster parents where they have responsibility for the upbringing of a child.
It is expected that the arrival of civil partnerships will increase awareness of these existing rights. Employers who are not prepared to deal with these rights should review and train managers and HR officers. These staff will then be able to deal with requests in accordance with the law and without awkwardness or confusion. Without training, both parties may feel uncomfortable or, at worst, the employer’s response could amount to sexual orientation discrimination and breach the particular statutory obligation on which the request was based.
Confidentiality and conflicts of interest
Where employees have access to confidential information, employers sometimes require the member of staff, and their family members, to maintain that confidentiality. For example, a statutory compromise agreement entered into on termination of employment often permits the employee to tell his or her spouse about the terms, provided that a confidentiality condition is impressed upon the spouse. Employers will want to extend existing procedures relating to confidentiality and conflict of interests to civil partners.
Increased risk of discrimination claims
Many people in same-sex relationships prefer to keep this information private. The CPA is likely to result in more people being open about their sexuality, particularly those who are planning to enter into a civil partnership. While a ceremony is not a legal requirement for registering a civil partnership (the Act prohibits any religious service taking place), local authorities will be free to offer civil partnership ceremonies.
The right to enter into civil partnerships will be reported in the media in the run-up to the implementation of the CPA and may feature news of celebrity couples who plan to be take up civil partnerships in the UK. All of this is likely to result in employees commenting and exchanging views with colleagues on the subject in the workplace, which may lead to gossip about the sexual orientation of fellow employees.
As with other forms of discrimination, employers can be held vicariously liable for discriminatory acts of their employees.
To minimise this risk, employers should ensure that equal opportunities and anti-harassment policies include provisions covering discrimination and harassment on the grounds of sexual orientation. Implementation of these procedures should include staff training so that people are aware of what a civil partnership is, and are clear about the type of conduct that is not acceptable in the workplace.
Anne-Marie Balfour and Joan Desmond are solicitors with City law firm Speechly Bircham
What employers should know about the Civil Partnership Act
The Civil Partnership Act 2004 will come into force on 5 December 2005
The Act allows same-sex couples to make a formal, legal commitment to one another
Civil partnership will be a legal relationship for same-sex couples aged 16 years or over who are not already in a civil partnership and who are not closely related
Broadly speaking, civil partners will have the same rights and responsibilities as married couples. This includes access to employment and pension benefits in the same way as married people
Action points for employers
- Review pensions, private health insurance and other employee benefits schemes to ensure benefits provided to married employees and/or spouses are extended to civil partners
- Ensure perks such as product discounts and subsidised public transport that are provided for the spouses of employees are extended to civil partners of employees
- Invite civil partners to the social events to which spouses are invited
- Train all employees on civil
partnerships and sexual orientation discrimination
- Train those involved in handling family-friendly rights to ensure they are aware these extend to same-sex couples
- Amend equal opportunities monitoring forms that ask for information on marital status. Rather than have a separate category of civil partner, it is better to have one category of married/civil partner
- Don’t forget about the new immigration rules – a work permit may not be necessary if the person is a civil partner
- If your organisation offers enhanced employee benefits to retain a competitive edge in staff recruitment and retention, consider whether some of this edge will be lost as other employers catch up by complying with the new laws