What the Boss Should Be Doing
Post-Civil Partnership
by Frank Griffin
IMPORTANT
All articles in GLP
Solicitors' Your Rights section refer primarily to
the law in England and
Wales.
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Civil Partnerships are literally around the corner and the waiting for same-sex couple is virtually over. Much has been written about the pros and cons of forming a civil partnership in the past few months. Things like whether a same-sex couple will be worse off financially after registering a civil partnership if one of both partners are in receipt of benefits right through to the registration and;or ceremony itself. |
What matters should a person consider following the implementation of the Civil Partnership Act?
The Civil Partnership Act (CPA) comes into force on 5 December 2005. It will enable same-sex couples to obtain legal recognition of their relationship by forming a civil partnership. This will give civil partners similar rights and responsibilities to married couples.
Sir Elton John will be one of the first to utilise this new found legal status. Earlier this year (2005) he stated that he intends to ‘marry’ David Furnish in December (2005). That created great media attention and no doubt that event will be a glamorous endorsement of the new legislation. Many other gay couples will certainly wish to enter civil partnership in 2006.
The legislation is significantly recognising a civil partnership between same sex couples that represents a substantial change in social policy, it places same sex couples who choose to enter into a civil partnership on an equal legal footing with married couples. Employers if sensible should now take steps to ensure that their policies and procedures are such that they treat those same sex couples that have entered civil partnership in an equal way to a married couple.
Among the issues employers should be considering …
Pensions
This is an area which is likely to have significant impact by the CPA. At present, if an employee who is a member of a pension scheme dies, his or her surviving same sex partner is not entitled to any “survivor benefits”. Also, if the same sex relationship breaks down, neither party has any claim to any portion of the others pension fund. These are issues among several others dealt with under the new legislation.
However the provisions under the CPA are very complex and extremely detailed. It is strongly recommended that professional advice is sought in respect of individual pension schemes. What is clear is that from 5 December 2005, the CPA will render it unlawful for pension trustees and employers to treat members of public service pension schemes, who are civil partners, less favourably than members who are married. In respect of occupational pension schemes, whilst this is not specifically referred to under the legislation “it would be good practice”, for employers to review the terms of externally provided pensions to extend benefits granted to employees or their spouses to civil partners. Employers should not feel they can be complacent about limiting such benefits to employees who are in a CPA relationship.
Employee Benefits
It was the exclusion of same sex partners from employee benefits that were available to others, that originally generated political pressure for the legal recognition of partnerships following the case of Grant v South Western Trains, in which Ms Grant’s female partner was denied a travel pass, that benefit was available to the spouse of her colleagues, this caused a great debate in 1998.
The ruling that the Sex Discrimination Act did not offer Ms Grant legal protection and that policy of South Western Trains was deemed not to be unlawful, caused extensive debate.
Ms Grant’s case would be a very different matter post 5 December 2005. The changes to be introduced by the CPA mean that employers will be required to consider the whole range of benefits they make available to spouses and ensure that identical benefits are made available to civil partners. This would range widely such as benefits made available to employees by employers. Examples being, discounts on company services or products, private health insurance, gym membership, to wedding benefits if normally granted (including gifts and additional holiday for honeymoons).
It would extend to terms provided by third party providers, such as insurance companies. Where such benefits operate and are made available to employees and their families. Employers should ensure that the terms of such benefits are amended to include civil partners. An example is the provision of private health care to an employee’s spouse. The insurers should be asked to ensure that this benefit is also made available to the employees in civil partnership.
Family-Friendly Rights
Employers are likely to be reminded that same-sex couples enjoy family-friendly rights such as parental, adoption, maternity and paternity leave, as well as flexible working requests. These provisions remain, so they are unaffected by the CPA. The CPA will extend to civil partners the right to take time off to deal with certain emergencies involving their civil partner, again there may be a need for specialist advice in that matter. All employers should as best practise ensure their Equal Opportunity Policies are updated to reflect the CPA change.
Discrimination
Employers should be aware that privacy is often a key concern for couples in a relationship. The registration of a civil partnership under CPA 2004 can be done privately. When the employer is in receipt of such information, it should take care to keep the information confidential. Employers have existing obligations when handling sensitive data under the Data Protection Act 1998.
How any employer who asks any employee are they a partner in a civil partnership and so has access to benefits?
For example when asking for a copy of the registration certificate … but if they do enquire, then allegations of discrimination may well arise under the Employment Equality (Sexual Orientation) Regulations 2004. So any such employer should seek similar evidence by asking for a marriage certificate, for any heterosexual couples.
The CPA establishes an additional regulation in the employment relationship. All employers will need to ensure that their policies and procedures, in particular in relation to employee benefits, are updated to ensure that they comply with the additional protections offered to those same sex couples who enter into civil partnership, if they are to avoid the risk of discrimination claims being brought against them.
■ Frank Griffin specialises in employment law. He is an experienced Tribunal Advocate, a Human Resources Consultant and Arbitrator. He advises clients on employment relations matters and employment legislation.
He can be reached at employment@glplaw.comWeb Link
18 November 2005
