Companies that withhold fringe benefits from the partners of gay or lesbian employees could be in breach of EU equality law. A case currently before the EU Court of Justice could force many Irish companies, particularly in the transport sector, to look more closely at concessions offered to spouses of staff.
Among the Irish companies likely to be affected are Aer Lingus, Ryanair and Iarnrod Eireann. In fact Iarnrod Eireann has already been invited to attend a meeting of the UIC (Union Internationale des Chemins de Fer) next March to consider the implications of the court's findings.
It all started with a complaint to an industrial tribunal in Southampton, England, by a railway clerk, Ms Lisa Grant, against her employer, South West Trains. Ms Grant complained that South West Trains refused to give her partner, also a woman, free travel concessions normally issued to spouses of employees.
An advocate general of the court, Mr Michael Elmer, found that South West Trains was in breach of the EU treaty. The court, which follows the advice of its advocates general in 90 per cent of cases, is expected to hear Ms Grant's case before Christmas.
Ms Grant's predecessor in the job of railway clerk, a Mr Potter, had been given travel concessions for his common-law wife. However, when Ms Grant applied for the same concessions on behalf of her partner, Ms Jill Percey, she was told this was against company regulations.
The relevant regulation states that "privilege tickets are granted for one common law, opposite sex spouse of staff". Mr Elmer found that South West Trains, which is part of the Stagecoach transport group, had broken EU law by denying Ms Grant's partner an employment benefit available to heterosexual couples. The basic grounds for refusing the travel concession was that Ms Grant's partner was the same gender.
The company denied discrimination on a gender basis. It said if a male employee with a male partner applied for the same concession he would also have been refused. It argued that the "opposite sex" clause applied equally to both genders. But Mr Elmer said that making accessibility to the travel concession dependent on the gender of the spouse was in itself discriminatory. He estimated the yearly value of the travel concession as the equivalent of £1,000 in pay.
If Mr Elmer's finding is upheld it would mean that gay and lesbian couples could avail of fringe benefits already available to heterosexual employees. Mr Elmer estimated that up to 35 million workers could be affected by this form of discrimination.
Spouses of Iarnrod Eireann employees are entitled to travel concessions, both within Ireland and on journeys to Britain and other EU member-states. Opposite-sex partners are also entitled to the concession, provided the couple have been living together for at least five years.
But there is no provision for partners of the same sex to be granted these concessions. Similar travel concessions operate throughout the CIE group. Aer Lingus and Ryanair both provide travel concessions for married partners of employees, but not for other partners. However, under Aer Lingus's Cara scheme employees with three years' service can also nominate someone for up to four cheap fares a year at the same rate as a married spouse. Both companies could therefore find themselves in breach of EU law if the court holds with the findings of Mr Elmer.
However, ferry companies do not appear to be adversely affected. They allow employees to bring groups of up to five people on board at concession fares. There is no requirement for any of them to be related to the employee.