AMENDMENTS
TO THE EMPLOYMENT EQUALITY (SEXUAL ORIENTATION) REGULATIONS 2003
The Employment Equality (Sexual Orientation) Regulations 2003
outlaw discrimination in employment and vocational training on
grounds of sexual orientation and have been amended to take
account of the introduction of civil partnership. Parliament has
approved the amendments, which took effect on 5 December 2005 -
the date that the Civil Partnership Act came into force.
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 DTI’s website at:
http://www.womenandequalityunit.gov.uk/lgbt/partnership.htm
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. A copy of that assessment has been placed
in the libraries of both Houses of Parliament. Copies may be
obtained from the DTI website at:
http://www.dti.gov.uk/access/ria/pdf/final_ria_for_cp_bill.pdf
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 at:
http://www.legislation.hmso.gov.uk/si/si2003/20031661.htm
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:
www.womenandequalityunit.gov.uk/lgbt/partnership.htm
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