Gay rights and civil partnerships are one of the most talked-about human rights issues of this generation. In order for businesses to move with the times and celebrate diversity in the workplace, it is important that all companies are aware that civil partnerships are a protected characteristic under the Equality Act 2010. As a result, businesses need to be aware of the part they should play in ensuring the rights of same-sex couples in civil partnerships.
In general, where employment legislation refers to husband or wife in conferring rights on employees in relation to their spouse, this also refers to civil partners, having the effect that couples who have entered into a civil partnership are also capable of achieving eligibility to avail themselves of that right.
Where contractual rights are concerned, it is potentially discriminatory to offer a benefit, eg health insurance or time off after their wedding ceremony to your employees, that they, as a married individual, can benefit from if you do not also offer that benefit to employees who have entered into a civil partnership. A similar attitude should be taken when the contractual right provides the benefit individually to the employee’s wife, husband or civil partner.
It is not a requirement that those benefits are offered to same-sex couples who have not entered into a civil partnership, although where benefits are offered to employees in opposite-sex relationships, these should also be made available to employees in same-sex relationships.
Where previously it was open for an employee to claim they have been discriminated against on the grounds that they are married and not single, it is also open for an employee in a civil partnership to claim they have been discriminated against because they are not single.
Where a child is born into a female same-sex relationship, the woman who has given birth is naturally entitled to maternity leave and pay subject to certain qualifying conditions in the same way as a woman in an opposite-sex relationship. The mother’s partner will be entitled to take paternity leave even if the couple have not entered into a civil partnership or got married because someone who is the ‘partner’ of the mother, ie a person who lives with the mother in an enduring family relationship but is not a relative of the mother meets the eligibility criteria.
Where a child is adopted into a same-sex relationship, one of the parents will be able to take adoption leave and receive statutory adoption pay, subject to other eligibility criteria, and it is for the parents to decide which one that will be. The other parent may be entitled to paternity leave and pay.
Same-sex couples who are having a baby by a surrogacy arrangement may take statutory adoption leave and shared parental pay (provided they meet the criteria) as long as they intend to apply for a parental order. Only individuals who are genetically related to the surrogate baby can apply for a parental order. There is also now a right for those receiving a baby by surrogacy to take time off work to accompany the surrogate mother to her ante-natal appointments.
Alan Price is employment law director of Peninsula.
Further reading on employment law
