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Discrimination - Partnership Benefits

26 July 2009

Legislation outlawing discrimination on the grounds of sexual orientation introduced in 2003 provided for an exemption for provisions in employment related to partners if that provision depended on marriage.

male couple

This page has been archived as the infomation is no longer up to date, please refer to: Equality Act 2010

As a result of the creation of the right to form a civil partnership the Department of Trade and Industry (DTI) has announced a change in the law with effect from 5 December 2005 providing that the civil partner will be treated in the same way as a husband or wife by marriage.

The announcement by the DTI is detailed below.

Most CWU members work for employers who do not discriminate on grounds of marital status or civil partnership status with regard to partnership benefits such as pensions. However, for those members who work for employers who do discriminate on the grounds of marital status the legal changes will be of benefit if they enter into a Civil Partnership. The CWU continues to be in favour of providing partnership benefits for all irrespective of the legal status of the partnership but we welcome putting marriage and civil partnership on the same footing.

Extract from the DTI Statement

"As well as giving formal legal recognition, civil partnership brings with it rights and responsibilities between the partners themselves and third parties, including the state and employers. The changes to the Regulations ensure that access to employment and vocational training and related benefits achieve, as far as is possible, equality of treatment between spouses and civil partners.

A new regulation 3(3) has the purpose of making it clear that, for the purposes of the Employment Equality (Sexual Orientation) Regulations 2003, the status of a civil partner is comparable to the status of a spouse. The effect of this new provision is to enable a civil partner who is treated less favourably than a married person in similar circumstances to bring a claim for sexual orientation discrimination under the Sexual Orientation Regulations. New regulation 3(3) prevents the discriminator from being able to say, by way of defence, that being married is a material difference to being a civil partner. The discriminator would have to show that the married person and the civil partner were not in a comparable position for some other reason, for example, that they were doing different jobs. It follows that a person who is about to become a civil partner, has previously been a civil partner or who associates with a civil partner will be comparable to a person in similar circumstances who is about to get married, was married or who associates with someone who is married.

An employer etc. would not be able to justify less favourable treatment of a civil partner as compared to a spouse (or of a spouse as compared to a civil partner) in similar circumstances unless he could show that being heterosexual or gay, as the case may be, was a genuine occupational requirement (GOR) of the job within the meaning of the regulations. The additional GOR exception in regulation 7(3) for employment for purposes of an organised religion permits an employer to apply a requirement "related to sexual orientation" (rather than to be a particular sexual orientation). It may therefore permit a narrow range of employers in relation to a very limited number of posts, to require that an employee be married (rather than a civil partner) but only where such a requirement is necessary to comply with the doctrines of the religion, or because of the nature and context of the job, to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers. It is likely that these defences will only be available in a very limited number of circumstances.

Regulation 25 is also amended with the purpose of preserving the effect of the existing exemption in regulation 25 in respect of service which pre-dates the coming into force of the Civil Partnership Act. Paragraph (a) thus allows married people to be treated more favourably than any other group in respect of such service.

The purpose of paragraph (b) is to make it clear that more favourable benefits, such as survivor benefits, can be conferred on civil partners and spouses to the exclusion of others without such a status. The effect is that an individual will not be able to claim that such a practice amounts to unlawful discrimination under the Regulations."