Civil partnerships and sexual orientation: case study
Sue Nickson, Partner and International Head of Employment at Hammonds, uses a case study to consider the requirements of the Civil Partnership Act 2004 and the sexual orientation discrimination legislation.
You are the HR manager of Bags of Personality Ltd. The managing director informs you that he recently read an article saying that married employees are more productive at work than non-married employees, so would like to introduce a new staff discount for the company's married employees. He is also concerned about a recent conversation that he had with a particular employee. He asks your advice on a number of issues.
The managing director's questions
Can the company introduce the proposed discount for married employees only?
As the law currently stands, employers can treat married employees more favourably than non-married employees when it comes to such things as staff discounts and travel concessions.
Although, as same-sex couples in the UK cannot lawfully marry, such treatment could on the face of it amount to indirect discrimination under the Employment Equality (Sexual Orientation) Regulations 2003, the Regulations contain a specific exemption with regard to benefits dependent on marital status.
Could the managing director also extend the staff discount to heterosexual employees in common law relationships?
If the company offers the discount to heterosexual employees in common law relationships and does not offer it to employees in similar same-sex relationships, this is likely to amount to unlawful discrimination under the Employment Equality (Sexual Orientation) Regulations 2003. The exemption referred to above covers only married employees.
An employee, John Jones, has told the managing director that once he has registered his relationship as a civil partnership he will also be entitled to the new discount. What is a civil partnership and is John right?
A civil partnership is a new form of legal relationship that will be created under the Civil Partnership Act 2004. With effect from 5 December 2005 same-sex couples will be able to apply to register their relationship as a civil partnership and will then have similar rights and responsibilities to those of married couples.
The Government will therefore be amending the Employment Equality (Sexual Orientation) Regulations 2003 on 5 December 2005 to bring them into line with the Civil Partnership Act 2004.
Regulation 25, which currently allows employers to offer benefits dependent on marital status, will be extended to cover civil partners. As a result the Company will also be able to treat employees who have entered into a civil partnership more favourably than non-married employees or employees who have not entered into a civil partnership.
A new regulation 3(3) will also make it clear that, for the purposes of the Regulations, the status of a civil partner is equal to that of a spouse. This means that if a civil partner is treated less favourably than a married person in similar circumstances he or she will be able to bring a claim of discrimination on grounds of sexual orientation. The employer will not be able to argue that the employee's relevant circumstances are different simply because he or she is in a civil partnership as opposed to being married. As a result, from 5 December 2005, it will be unlawful for an employer to offer benefits to married employees but not to those who have entered into a civil partnership.
Will the company have to extend the new discount to all employees who are in a same-sex relationship?
Not necessarily. If the company wishes to offer the staff discount to married employees then, provided that it extends the discount to employees who are in a civil relationship, it will not have to offer it to all employees who are in a same-sex relationship. After the amendments, the Employment Equality (Sexual Orientation) Regulations 2003 will still allow employers to treat married employees and those who have entered into a civil partnership more favourably than other employees with regard to benefits.
If, however, the company decides to offer the staff discount to heterosexual employees who are in a common law relationship then it will need to offer it to lesbian and gay employees who are in a similar same-sex relationship.
John Jones has also told the managing director that, at a recent staff party, one of his colleagues referred to him as a 'chutney ferret'. John is concerned about raising a grievance as he thinks that this may make matters worse. Should the managing director take any action?
Yes, the managing director should investigate the matter further. It is very important that the company takes this seriously, as a failure to do so may in itself amount to an act of discrimination.
The introduction of the statutory minimum dispute resolution procedures means that, as a general rule, John will be required to set out his grievance in writing before being able to issue proceedings in an employment tribunal. However, the fact that the complaint is not in writing does not mean that it can be ignored or treated less seriously by the company.
If John brings a discrimination claim under the Employment Equality (Sexual Orientation) Regulations 2003 it is most likely to be a claim of harassment. Harassment occurs where there is unwanted conduct based on sexual orientation that has the purpose or effect of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.
As it wasn't the managing director, but a junior employee, who made the comments why should he be worried?
In terms of liability, the Employment Equality (Sexual Orientation) Regulations 2003, regulation 22 provides that an employer is vicariously liable for the acts of its employees in the course of their employment, whether or not it knew or approved of them. The only defence for the employer is if it can show that it took such steps as were reasonably practicable to prevent its employees from committing such acts, for example if it has in place an equal opportunities policy that expressly covers sexual orientation and has carried out training.
The party took place off site. Does that make a difference?
The fact that the alleged act of discrimination took place outside the workplace or even outside normal working hours will not be sufficient in itself to get the company off the hook. This is because 'in the course of…employment' will be widely interpreted. It is clear from existing case law that acts of harassment that take place at off-site social events can be covered by the discrimination legislation. Indeed work social events often prove to be fertile ground for discrimination claims, especially where alcohol is involved.
Next week's article will consider some of the cases that have been brought under the Employment Equality (Sexual Orientation) Regulations 2003 since their implementation two years ago.
Sue Nickson is Partner and International Head of Employment at Hammonds (Sue.Nickson@Hammonds.com)
Further information on Hammonds Solicitors can be accessed at www.hammondsuddardsedge.com
