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Amendments To The Employment Equality (Sexual Orientation) Regulations 2003

Background

The Civil Partnership Act gives same-sex couples the opportunity to form a civil partnership and gain legal recognition of their relationship. The Act also contains provisions enabling certain overseas same-sex relationships to be treated as civil partnerships. The Act was brought into force on 5 December 2005.

The Government held a three-month public consultation on the proposal to create a same-sex civil partnership registration scheme in England and Wales.  This ran from 30 June 2003 to 30 September 2003 and generated substantial public and media interest. There were a total of 3,167 responses to the public consultation of which 83 per cent expressed support for the principle of civil partnership.

The Government’s response to the consultation was published in November 2003 and can be found on the Women and Equality Unit website (see external Links).

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.

Regulatory Impact Assessment

An assessment of the impact on business, charities or the voluntary sector of the provisions is included in the Regulatory Impact Assessment that accompanied the Civil Partnership Act 2004 (see Related Documents).  A copy of that assessment has been placed in the libraries of both Houses of Parliament.

Amending the Regulations

Section 259 of the Civil Partnership Act contains a power to allow a Minister of the Crown to amend legislation, by statutory instrument, for the general purposes of the Act, in consequence of any provision by or under the Act or for giving effect to the Act or any provision of it.

Amendments to the Employment Equality (Sexual Orientation) Regulations 2003 were included in a statutory instrument made using this power laid before Parliament in July 2005 and approved in November 2005.

THE AMENDMENTS

The Statutory Instrument amended by the Regulations can be found on the Office of Public Sector Information website (see External Links).

New regulation 3(3)

3. Discrimination on grounds of sexual orientation

“(3) For the purposes of paragraph (2), in a comparison of B’s case with that of another person the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference between their respective circumstances.”

Purpose and effect

1. The purpose of this new provision is to make 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.  Regulation 3(3) is intended to address the fact that  ECHR and ECJ case law has consistently held that married people are not comparable to those in other relationships.  This line of authorities was followed by the High Court in Queen on application of Amicus and others -v- Secretary of State for Trade and Industry [2004] EWHC 860 (Admin).  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.

2. 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 regulation 7(2).  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.

Amended regulation 25

25. Exception for benefits dependent on marital or civil partnership status

“Nothing in Part II or III shall render unlawful –

(a) anything which prevents or restricts access to a benefit by reference to marital status where the right to the benefit accrued or the benefit is payable in respect of periods of service prior to the coming into force of the Civil Partnership Act 2004;

"(b) the conferring of a benefit on married persons and civil partners to the exclusion of all other persons."

Purpose and effect

1. The purpose of paragraph (a) is to preserve 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.

2. 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.

Q&A

When do the amendments to the Employment Equality (Sexual Orientation) Regulations take effect? 

The amendments took effect on 5 December 2005 – the date that the Civil Partnership Act came into force.

What effect do the changes to the Employment Equality (Sexual Orientation) Regulations have on other pieces of legislation?

None.  Amendments to the Sexual Orientation Regulations have no read across to other pieces of legislation.

What other legislation  has been amended to take account of the CPA?

Legislation has been amended in a wide range of areas as a consequence of the introduction of civil partnership including child support, social security, pensions and tax credits.

Where can I find more information on the Civil Partnership Act?

The Women and Equality Unit website contains information about the Civil Partnership Act.