The rights of employees who form part of a same-sex relationship are set to be dramatically strengthened by the end of the year.

The Civil Partnership Act will come into force as of December 2005. This Act will allow same-sex couples to form a civil partnership. The process of entering into a civil partnership will be administered by the local registration service.

On the day of registration, each member of the couple will sign in the presence of the registration officer and two witnesses. This will give these “civil partners” equal status to that of married couples.

The current unavailability of a legal status for same-sex couples is a source of frustration for many as it means that they are denied access to most of the rights and responsibilities that are given to married couples. While existing law renders it unlawful to treat a married person less favourably than an unmarried person, until now there was no legal provision to the contrary.

But what effect will this have on employers?
As part of the changes, the relevant employment regulations (which prevent discrimination on the grounds of an individual’s perceived or actual orientation) will also be amended to require that civil partners and spouses should be treated equally.

Employers will no longer be able to prevent or restrict access to benefits by reference to marital status without exposing themselves to the risk of one of their employees taking legal action. For example, many employers have provisions in their contracts that private health care will be available to the employee, the employee’s spouse and their children. Provisions to this effect will have to be altered so that the benefit is also made available to employees’ civil partners.

Many employers may think that compliance will be relatively easy in this respect. However, has your boss considered that even marriage payments or gifts or the provision of additional holiday for weddings and honeymoons may lead to unlawful discrimination?

The benefits that employees derive from their pension schemes will also have to be examined. A surviving registered civil partner will be entitled to pension benefit provisions similar to those of a surviving spouse.

The only method by which employers will be able to discriminate in favour of colleagues with marital status to the detriment of civil partners will be where the right to the benefit accrued (or the benefit is payable) in respect of periods of service prior to December 2005. The new obligations on employers will therefore not have retrospective effect.

Thankfully (for employers at least), it will still be lawful for employers to confer benefits on married persons and civil partners to the exclusion of all other persons if they choose to do so. Therefore, a single homosexual colleague will not be able to argue that it is discrimination to deny him or her access to benefits on the grounds that they are not married or a civil partner.

The new rules will not simply mean that employers face yet further compliance costs. They will benefit from new rules that widen the categories of people who may lawfully live and work in the UK. The new law will allow 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.

It is also hoped that the obligation of having to offer equal employee benefits to same sex partners in a civil partnership will mean that employers see improvements in recruitment and retention. After all, a happy workforce is a productive workforce.

The costs
Given that the Government estimates that there is between 1.5 and 2 million lesbian, gay or bisexual people in the labour force it is possible that many employers could be liable to claims if they do not make sure their employment policies are compliant by December 2005.

It is imperative that employees are encouraged to respect others who form part of a civil partnership. This will be particularly important in the next few months as it is predicted that some employees who have not yet openly expressed their sexuality may feel that this is the perfect time to “come out” and cases of discrimination will perhaps, unfortunately, increase.

Although the new rules are not due to come into force until December 2005, employers must immediately consider whether it is necessary to amend existing policies and benefits to ensure that they do not needlessly fall foul of their obligations in this respect.

Article by the employment law team at corporate lawyers, Dundas & Wilson